Select Committee on Armed Forces First Special Report


The Select Committee on the Armed Forces Bill has agreed to the following Special Report:—


1. The disciplinary systems of the three Armed Services are underpinned by the three Service Discipline Acts: the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957. The Bill of Rights states—

    That the raising or keeping of a standing army within the kingdom in time of peace unless it be with the consent of Parliament is against the law.[1]

The necessary parliamentary authority to maintain the Armed Forces in peacetime is given annually by the House agreeing to Defence Votes A each spring. Prior to the passage of the present Service Discipline Acts, their predecessor Acts (for the Army and Air Force) also expired annually and had to be re-enacted by Parliament each year. The current Acts, in deference to those constitutional traditions, also last only for a year at a time, but may be renewed each year, for a maximum of five years, by Orders in Council.[2] Before the end of the fifth year, they must be renewed by primary legislation—the quinquennial Armed Forces Bill—the current one of which we are now considering. It renews the Acts, which would otherwise cease to have effect on 31 December this year, until the end of 2006.[3] This quinquennial Bill also provides an opportunity to make any necessary amendments to the existing legislation. Since this quinquennial procedure began in 1961, it has been the practice for the Bill to be committed to a select committee after Second Reading, a practice which of course predates the existence of a permanent Defence Committee in the House's Standing Orders.[4] Committal of Bills to a select committee is procedurally unusual these days. It enables a committee to combine the normal standing committee process of formally considering a Bill clause by clause, and amending it if it wishes, with a select committee's powers to take evidence and to make visits, and then to report its findings to the House and make recommendations.

2. We made some Amendments to the Bill.[5] These are set out in the Minutes of Proceedings and are incorporated into the amended version of the Bill ordered by the House to be printed on 13 March.[6] This Report explains why those Amendments were made, and discusses other aspects of the Bill's provisions which merit the House's particular attention.

3. We held nine sessions of oral evidence. In addition to a wide range of Ministry of Defence witnesses, including the Secretary of State for Defence and the Chief of the Defence Staff, we took evidence from the two Associations representing Chief Police Officers in the United Kingdom;[7] the Defence Police Federation; the National Union of Journalists; Forces Law, a group of solicitors who frequently represent Service personnel; and At Ease, a voluntary advice and counselling service for Armed Forces personnel.[8] We have also received a substantial amount of written evidence, which is published with this Report.[9] During the course of our work we visited the Military Corrective Training Centre and the Colchester Garrison; HMS Invincible (off the coast of Scotland); British forces deployed as part of the Multinational Brigade in Kosovo; and RAF and British Army personnel stationed in Cyprus.[10] We are grateful to all who have assisted us in our work, either by submitting evidence or by contributing to our visits.

4. The House agreed, in an Amendment made to the original motion to appoint the Committee that, on this occasion, this Select Committee should have the power to appoint specialist advisers.[11] We have benefited considerably from the advice which Rear Admiral Richard Cobbold, Director of the Royal United Services Institute, has given us in this capacity.

Composition of the Committee

5. The composition of this Committee was the subject of some criticism from colleagues during the Second Reading debate on the Bill in that it did not follow the usual precedent of confining membership of select committees largely to backbench Members.[12] It has been accepted practice in the past for a Defence Minister and a front bench Opposition spokesman to be appointed to the select committees on the quinquennial Armed Forces Bill, because these committees have the power to amend the Bill, and it is therefore felt necessary for a Minister to participate in the Committee's proceedings. On this occasion, two Defence Ministers were appointed to the Committee (Mr Spellar and Dr Moonie) and three Opposition spokesmen (Mr Davies, Mr Keetch and Mr Key). The membership also included a Government and an Opposition Whip (Mr Clelland and Mr Randall) and two parliamentary private secretaries (Ms Squire, who is PPS to the Minister of State, Department for Education and Employment; and Mr Watts, who is PPS to the Minister of State for the Armed Forces). There was also a departure from previous practice in that, on this occasion, this Committee included no members of the Defence Committee.[13]

6. The controversy over the composition of the Committee led to problems when we applied to the Liaison Committee for funding for our proposed overseas visit. The Liaison Committee is comprised of the chairmen of select committees and is responsible for the general oversight of the work of select committees, including authorising expenditure on overseas travel. The Liaison Committee's deliberations are a private matter but we were given to understand that the composition of this Committee was the reason for our initial application for funding being only partially authorised, although the application was subsequently approved in full when it was resubmitted.

7. We hope this Report, and the evidence which is published with it, demonstrate that we have approached our consideration of this Bill with the same scrupulous and disinterested attitude that was adopted by our predecessors in respect of previous Armed Forces Bills. We do not believe that the composition of the Committee has in any way compromised the way in which we have discharged our duty to the House. However, we do believe that the lessons of the controversy surrounding the appointment of the Committee should be learned.

Consideration of future Armed Forces Bills

8. First, the procedures used for consideration of the quinquennial Bills deserve reconsideration in the light of changes in the parliamentary context since 1954. At that time, the select committee system was considerably less developed and less well-resourced than at present. There was no committee permanently charged with oversight of the work of the MoD. Prior to the 1955 Acts, a select committee had been appointed each year to consider draft proposals for amendment of the Acts along with their annual renewal. When, after long deliberation, the Committee decided to recommend the quinquennial system it commented—

    Your Committee decided ... to recommend ... that it should be provided that each Act should expire on a date not exceeding 12 months from the date on which it should become effective, but should be renewable annually for four further periods of 12 months by Resolution of both Houses ... In the fifth year, legislative action would be required to continue each Act ... Your Committee decided to recommend ... the committal of the Bills to a Select Committee immediately after Second Reading ... it was felt that such periodic examination in the less partisan atmosphere of a Select Committee was likely to result in the legislation being kept more up to date and to give less opportunity for criticism or amendment to a partisan or obstructive nature than if the Bill were to proceed straight to a Committee of the whole House ...[14]

These arguments continue to carry weight. But the development of the departmentally-related select committees, and the practice of referring draft Bills to select committees for consideration, may suggest the time has come to reconsider this 50 year-old practice. The introduction of a 'tri-Service' Discipline Act (which we discuss below) would be an appropriate point at which to review the traditional procedures for parliamentary scrutiny of Armed Forces Bills. We recommend that the Select Committee on the tri-Service Bill (whether it is the Defence Committee or an ad hoc committee) should examine the procedures for renewing the Act and for scrutinising it, and recommend how it should be handled.

9. We offer some thoughts for consideration by the House on some future occasion. There may be merit in any future quinquennial Bills being referred in draft to the Defence Committee, which that Committee itself suggested in its Annual Report.[15] The Liaison Committee agree that it should be the Defence Committee which looks at future Armed Forces Bills and that there is merit in using the draft Bill procedure.[16] If it is decided, however, that the Bills should continue to be committed to an ad hoc committee, then the House should consider the composition of that committee carefully. Parliamentary scrutiny may not be seen to have been done if such committees consist largely of those who must conform to the convention of collective responsibility in respect of the policies of their parties, whether in or out of government at the time.

10. This select committee, like its predecessors on the Armed Forces Bill, has the function of both a standing and a select committee. Ideally, it would be possible to combine the best elements of both types of committee, but the reality has been more limiting. When standing committees consider legislation, the meetings are held in public and Ministers are able to have their departmental officials present to provide advice on the detailed content of the proposed legislation. Any statement Ministers make is recorded and published and can subsequently be referred to as an aid to interpretation of the Acts. We, on the other hand, have had to conform to the practice of select committees which consider matters other than oral evidence in private. Our formal consideration of the Bill therefore had to take place in a private meeting: the Ministry of Defence officials, as Strangers (ie neither Members nor House officials) could not be admitted; and no verbatim record of the proceedings was kept. We believe it would assist all members of a committee examining future Bills of this kind if these matters were addressed.

11. Similarly, in line with select committee procedure, minutes of evidence were not printed and published in time for the next session of the Committee but were only available as draft verbatim transcripts with a restricted circulation. This was an unnecessary inconvenience which also inhibited the transparency of the work of the Committee. It would assist future committees of this type if, in advance of publication in their final form, all minutes of evidence were made available in uncorrected form, on the Internet, the day after they were taken, as is currently the practice for oral evidence taken in select committees from Ministers.

Scope of this Committee's work

12. Many of our predecessor Committees have used the opportunity presented by consideration of the five-yearly Armed Forces Bill to look more widely at matters affecting Service personnel rather than limiting themselves strictly to the provisions contained in the Bill itself.[17] We have adopted a more narrowly defined approach to our work, for two reasons. First, in appointing the Committee on 9 January 2001, the House also agreed a programme motion requiring us to report the Bill by 15 March. Although this would appear to have given us less time to carry out our work than our recent predecessors, we have been able to hold at least as many evidence sessions and to conduct a similar number of visits.[18]

13. The second reason we decided not to look more widely at Armed Forces personnel matters was that, at the time this Committee was appointed, our colleagues on the Defence Committee were at the end of a wide-ranging inquiry into this subject. Their oral evidence, taken between July and December 2000 from a large number of interested organisations, was published and available to us. The Chairman of the Defence Committee also gave us a private briefing on the work which his Committee had undertaken in advance of the publication of the Report on 23 February.[19] The Report provides a detailed and balanced assessment of many of the issues confronting those responsible for personnel policy in the MoD and the Armed Forces and we commend it.

14. We have considered two related matters: the legal representation available to Service personnel; and the terms of service of Armed Forces personnel under the age of 18 (see section V on Other Issues). We also publish with this Report written evidence from the Ministry of Defence following up the recommendations and observations of the 1996 Committee.[20]


15. One of the main concerns of our predecessors in 1996 was racial discrimination in the Armed Forces.[21] This is discussed in the Defence Committee's report in some detail:[22] we were aware of their interest and agreed not to pursue it separately. However, we received substantial written evidence from the Ministry of Defence and from the Commission for Racial Equality, following up issues raised in 1996, which is published with this Report.[23]


16. Our predecessors in both 1991 and 1996 recommended that each of the three Service Discipline Acts should be consolidated.[24] They regarded this process as desirable because of the number of amendments which had been made to the Acts since they were first passed in the 1950s, with sections inserted and repealed, resulting in what our colleagues in 1991 described as 'frankly a mess'. The 1996 Committee found it unacceptable that two years' work had been carried out on consolidation by a senior draftsman from Parliamentary Counsel but that the process had been left uncompleted when that secondment to the Law Commission came to an end. They recommended that the necessary time and resources be made available to allow for consolidation before the next Armed Forces Bill came before Parliament.[25] The Defence Committee has also, more recently, recommended that the MoD address consolidation of Service law as a matter of urgency.[26]

17. There is a separate, but associated, issue as to whether it is still appropriate or necessary to have separate Service Discipline Acts for the three Services when so much of our Armed Forces' activity is in joint operations and exercises. Such a reform would be likely to embrace a more root and branch re-examination of the scope of military law and its relevance to modern circumstances. The government's Strategic Defence Review, published in July 1998, announced that there would be an 'examination of the need for a single tri-Service Discipline Act'.[27] The Minister also told the House in the Second Reading debate on this Bill that the intention is to replace the three separate Acts with a single tri-Service Act, to be introduced as part of the next five-yearly process, in the 2005-06 Session.[28] The Chief of the Defence Staff said—

    I think it is sensible for us to look at a tri-service Act, but what I would also want to do very carefully is to make sure that we did not lose the baby with the bathwater, and that we recognise the tolerable variation that needs to exist between the three Service environments.

A tri-Service Act would need to be sufficiently flexible to deal with—

    ... a person on board a submarine, for example, which is employed for two months without any form of communication, as opposed to a soldier in a garrison or an airman on an airfield—you need to recognise that there are very different circumstances there.[29]

The Secretary of State acknowledged that it would be 'an enormous process' to draw up a single discipline Act which reconciled the different cultures and traditions of the three Services, but he believed it was 'common sense' to work towards this.[30]

18. We pursued with witnesses the question of the timescale for a tri-Service Act.[31] The Secretary of State's view was that, although it was a priority for the MoD, it would take years rather than months to prepare a Bill, because of the complexity of the issues and the legal technicalities which it would need to address.[32] Mr Barry Miller, Director General, Service Personnel Policy, and the official within the MoD responsible for such legislation, told us that 'scoping' work is under way at present to decide what a tri-Service Bill should contain.[33] There are currently only two MoD officials working on the proposed Bill (one of whom was on sick leave at the time), although Mr Miller assured us that this team would be significantly enhanced later this year.[34] Mr Miller is working to the timetable set out by the Minister for the introduction of such a Bill in five years' time; he said that 'we are fitting what we do into the existing schedule' and that the pace of work and level of resources would be determined by this.[35] We pressed him on whether a shorter timescale for producing a tri-Service Act would be possible. Mr Miller's view was that working to separate discipline Acts was not causing operational problems at present and that the five year timetable was therefore 'sensible' but that if there was a real need to bring in the Bill more quickly, it might be possible for more resources to be found.[36]

19. Although it is regrettable that consolidation of the Service Discipline Acts has never been carried out, despite the recommendations of our predecessors, we accept that it is now time to move on to a tri-Service Act. We realise that this is a substantial task, but we do not accept that it is necessary to wait until the next scheduled review of the Service Discipline Acts, in the 2005-06 parliamentary Session, before such a Bill is brought before Parliament. We believe that the Ministry of Defence is being complacent: there is already extensive joint activity between the three Services and legislation is needed which recognises this reality. We recommend that the Ministry of Defence devote sufficient resources to the preparation of a tri-Service Discipline Bill to ensure it is brought before Parliament within three years. Given the past approach of successive governments, we urge our colleagues on the Defence Committee to request an annual update from the MoD on how this work is progressing, and to inform the House.

20. Joint operations and exercises between our own Armed Forces are increasingly common, but this is also true of multinational activities with our allies. The drafting of a tri-Service Discipline Bill would provide a valuable opportunity for examining existing legislation governing the way our forces operate in an international environment, and for ensuring that the basis for the involvement of UK Service personnel in joint activities with forces from other nations and in other nations is properly defined, and where possible is contained within the single tri-Service legislation.


21. Significant changes were made to military discipline only last year in the Armed Forces Discipline Act, which came into force on 2 October 2000.[37] The most important of these were to the summary discipline system, where an accused person's commanding officer has responsibility for charging the person, hearing the case, deciding if the case is proved, and awarding sentence. The changes were made in response to a finding against the United Kingdom government in the European Court of Human Rights in February 1999, that aspects of the Services discipline system, as then operated, did not comply with the European Convention on Human Rights (ECHR). Legislation was introduced in the last parliamentary Session, rather than waiting for the usual five-yearly opportunity to review the Service Discipline Acts provided in this Armed Forces Bill, to ensure that military discipline was compliant with the European Convention as soon as possible and to enable the changes to come into effect at the same time as the Human Rights Act 1998, which incorporated ECHR provisions into UK domestic law.

22. We took the opportunity during our visits to discuss the effects of the Act's implementation with the people directly affected by it. We have been able to talk to representatives of all three Services about this, in a wide variety of circumstances: at sea; in barracks in the UK; at the Military Corrective Training Centre in Colchester; on active deployment in Kosovo; and in the long-established garrison in Cyprus. The general view was that, with only a few months' experience of the new procedures, it was too early to make a full assessment but that the impact had been much less dramatic than had been anticipated and that the effects had been mainly positive. There had undoubtedly been a considerable increase in paperwork and form-filling to meet the requirements of the new procedures, particularly for summary discipline. Although this has increased the burden on those responsible for administering personnel policy and discipline in the Services, those we spoke to accepted that there were accompanying benefits of transparency and clarity in the new disciplinary procedures, for both the accused and for commanding officers. The Chief of the Defence Staff did not believe the new procedures had had any effect on operational effectiveness. He took the view that the increased bureaucratic burden was a necessary one and that it would reduce as staff became more accustomed to the new system. Initial experience had shown that the number of appeals against summary findings by commanding officers, which was one of the key changes in the legislation, was much lower than had been expected.[38]

23. As a result of the Armed Forces Discipline Act being passed in the last parliamentary Session, less substantial change is proposed to the Service Discipline Acts in this Bill than might have otherwise been the case, and many of the Bill's provisions are uncontroversial and technical. We discuss in this Report only those which, from our examination, we believe do not fall into that category. In addition to the helpful Explanatory Notes published with the Bill, the Ministry of Defence submitted a memorandum to us on its main provisions and much of our initial oral evidence was devoted to elucidation from MoD witnesses of the precise intent of each clause of the Bill.[39] Clauses 31 and 32 of the Bill, dealing with the proposed extension of the jurisdiction of the Ministry of Defence Police, gave us considerable cause for concern, shared by a number of those who might be affected by the changes. Such is the importance which we attach to these issues that we have devoted a separate section of this Report to them. The remainder of this section highlights other areas of the Bill which we believe merit some comment.

Journalists and the Service Discipline Acts

24. It has been the policy of successive governments that, as far as is consistent with preserving Service ethos and discipline, military law should reflect civilian law. Clauses 2 to16 of the Bill form part of this process, in bringing the powers of Service police in relation to entry, search and seizure in line with the Police and Criminal Evidence Act 1984 (PACE). In many respects, we welcome these changes in that they provide a firm, legal basis for areas of Service discipline which were previously undefined and unspecified. However, we were worried about the implications of Clause 6 of the Bill. This clause allows the Secretary of State to make orders to enable Service policemen to apply to a judicial officer for a warrant to search premises for 'excluded material' or 'special procedure material', both of which could include 'journalist's materials' under the definition given in PACE which is also applicable to this Bill. We explored in oral evidence with Ministry of Defence officials exactly what was intended by these terms, without making much progress.[40] The MoD subsequently provided us with a supplementary memorandum, clarifying these definitions and the intention of the Clause.[41]

25. It is important that these provisions are not confused with the proposed extension of the jurisdiction of the Ministry of Defence Police, which has also caused concern in the press and which we address below. Service police are limited in their responsibilities to the investigation of offences under the Service Discipline Acts (SDAs). In addition to Service personnel, there are a number of circumstances in which the SDAs apply to civilians, including when they are working for or in connection with the Services outside the United Kingdom. This could include journalists accompanying Service personnel on operations, when they are required to sign an undertaking that they will comply with the SDAs.[42] The MoD regard it as 'unlikely' that journalistic material would be required in the course of an investigation carried out by Service police, although they do not rule out the possibility completely.[43] They point out that at present the powers of the Service police to search for such material is not defined; they are not required to obtain a search warrant; and there are no safeguards in place for sensitive materials.[44] In this respect, we accept that the Clause 6 provisions are a positive step.

Eligibility to serve on courts-martial

26. Clauses 17 to 30 deal with amendments to procedures for trial and punishment. Clause 19 gives effect to a long-heralded change in allowing warrant officers to sit on courts-martial dealing with ranks subordinate to them. The Chief of the Defence Staff welcomed this change[45] as do we. Our only concern was a specific proposition relating to warrant officers in the Royal Navy. Warrant officers subsequently promoted to commissioned rank in the Navy are given the rank of sub-lieutenant and may thereafter be promoted to lieutenant. Young people entering the Navy at officer rank are not able to serve on courts-martial as sub-lieutenants but have to wait until they are promoted to lieutenant. This rule makes perfect sense for young officers with little experience. But it is clearly nonsensical for experienced warrant officers to lose their right to sit on courts-martial on promotion to officer rank and to have to await further promotion to regain this right. This situation does not arise in the Army and Air Force, as they do not have a sub-lieutenant rank, although warrant officers who are commissioned will still be required to undertake a period of commissioned service before being eligible for the full range of courts-martial. Their initial eligibility will be limited to trials where they could have sat before they were commissioned. We raised the Royal Navy anomaly with Ministry of Defence officials who agreed to look again at the matter.[46] We welcome the government's subsequent amendment of the Bill during its formal consideration in this Committee, to take account of our views.


Policing and security forces

27. There are a number of policing and security organisations operating in the Service environment and it is important to be clear about their respective roles and attributes.

  • Service police (also known as military police) are Service personnel and act as the specialist police forces of the Armed Forces. They are: the Royal Navy Regulating Branch; the Royal Marines Police; the Royal Military Police; and the Royal Air Force Police. They are responsible for exercising jurisdiction over Service personnel in respect of offences against military law and discipline and in respect of offences committed against the civilian law covered by the Service Discipline Acts which involve only other Service personnel and property. The jurisdiction of the Service police also extends to civilians when they are subject to the SDAs.

  • The Ministry of Defence Police (MDP) is a civilian police force whose primary role is the investigation and prevention of crime within the defence estate. Its jurisdiction is defined in the Ministry of Defence Police Act 1987. Its officers have full constabulary powers within the area of their jurisdiction. All uniformed officers are firearms trained.

  • Other guarding and security forces perform a defined role within the MoD estate. The Ministry of Defence Guard Service (MGS) undertakes all unarmed guarding tasks including access control and patrols. The Military Provost Guard Service (MPGS) employs military personnel on local service engagements to provide an armed guarding service.[47] Private security firms are also used on the defence estate.

  • Armed Forces personnel also carry out armed and unarmed guarding and patrol duties within military establishments as part of their normal duties.[48]

Current status of the Ministry of Defence Police (MDP)

28. The Ministry of Defence Police force was formed in 1971 from the unification of separate service constabularies. Its present role and jurisdiction were defined in the Ministry of Defence Police Act 1987: the force has formal responsibility for policing MoD establishments in the United Kingdom. It became an MoD Agency in 1996 and the force is headed by a Chief Constable who is also the chief executive of the Agency.[49] MDP officers have had the authority since 1987 to operate 'in the vicinity of defence land' when an officer from a local force requests them to do so but, beyond this definition, the jurisdiction of the MDP is confined to the defence estate and Crown property.[50]

29. The MDP's complement today is 3,629, reduced from 5,000 since 1987.[51] This reduction has arisen from a decision to replace some of the armed guarding posts filled by MDP officers with the new Military Provost Guard Service of locally engaged Service personnel. The grounds for this decision were that police officers with full constabulary powers were over-qualified for a straightforward guarding role and that using personnel specifically engaged for guarding duties would provide a more appropriate and cheaper option. Our predecessors on the 1996 Select Committee on the Armed Forces Bill, and the Defence Committee in the previous Parliament, commented on these proposals.[52] The reduced number of MDP officers has affected the way they perform their duties: the MDP now includes 16 area policing teams, each covering a number of MoD establishments, and travelling between them as necessary.[53]

The Bill's proposals

30. Clause 31 of the Bill seeks to extend the jurisdiction of the Ministry of Defence Police in two main areas. First, the present power of an MDP constable to act in the vicinity of defence land in response to a specific request from a member of a local police force would be extended to a more general power to take on policing duties in areas 'close to defence land' based on 'standing arrangements agreed at a high level' between the MDP and Home Department police forces. The ability to respond to a request for assistance in a specific case made by a local force would also be available.[54]

31. Second, an MDP officer in uniform (or having proof that he is an officer) would be empowered to act without a request for assistance from a local police force, in emergency situations, where it was not possible to obtain authority to act in advance, and where the MDP officer had reasonable grounds for believing action is necessary to save life or to prevent or minimise injury.[55] An example of where this might arise would be where MDP officers come across a road traffic accident while travelling between MoD establishments. At present, an MDP police officer has only the same jurisdiction as a member of the general public in attempting to deal with incidents which he comes across outside the defence estate: that of citizen's arrest.

Areas of concern

32. We identified the following areas of concern in assessing the desirability of extending the jurisdiction of the MDP:

  • the expanding role of the MDP

  • accountability and independence

  • co-operation with local police forces

  • firearms

  • training and experience in dealing with the general public


33. Some witnesses, and outside commentators, expressed concern about the expanding role of the Ministry of Defence Police since the 1987 Act and believed this Bill represented another significant step in this process. Ms Gillian Linscott, of the National Union of Journalists, described the growth of MDP powers as 'jurisdiction creep'. Her view was that—

    ... certain assurances were given after the 1987 Act was passed about limitations and controls on the activities of Ministry of Defence Police which have, in some circumstances, been broken ...[56]

These assurances included an undertaking from the then Minister, Mr Archie Hamilton, that—

    Serious crime, like all crime, is the responsibility of the Home Department forces ... The Ministry of Defence police would hand over responsibility for such crimes at once. If the case involved murder, rape or any such thing there would be no question and the investigation would be handed, straight away, to the Home Department forces, although, conceivably, the MDP may be first on the scene of the crime.[57]

Practice has clearly changed since then: the MDP's Annual Report for 1999-2000 says that 30 allegations of rape were investigated last year by the MDP, and the Deputy Chief Constable told us that there were instances where the MDP, with the agreement of a local force, would investigate a murder.[58] He believed the MDP now had the experience and the technical ability to investigate serious crimes, which they did not have in 1987.[59] The representative of the Association of Chief Police Officers in Scotland (ACPOS), Mr Colin McKerracher, Assistant Chief Constable of Strathclyde Police, did not believe the MDP investigated rape and murder in Scotland.[60]

34. The MoD's view is that the principles set out by the Minister in 1987 'remain valid' but that there has been 'a shift in emphasis in the handling of cases' which is recognised in the Protocols between the MDP and local forces (see below).[61] The Chief Constable of the MDP (who has been in post for only three months, following 31 years in Home Department forces) agreed that the MDP's role had changed in the 14 years since the 1987 Act but regarded this development as a natural evolution to more fully recognise the changing needs of the force's 'customers'. He assured us that he did not envisage the role and responsibilities of the force expanding; he believed the Bill's proposals would change the way the MDP carried out its role, not the role itself.[62] The Deputy Under Secretary of State for Civilian Management (DUS (CM)) (Mr Michael Legge) agreed that the changes proposed in the Bill arose from experience of operating the 1987 Act, and were attempting simply to remove difficulties which MDP officers currently face in fulfilling their duties.[63] The Secretary of State reinforced this view and was emphatic that the Bill was proposing 'modest' amendments to the MDP's powers.[64] He said that he did not 'anticipate any significant further changes' to the MDP's jurisdiction, although he could not rule out the possibility.[65]

35. Some commentators went as far as to say that the Bill's proposals to broaden the MDP's jurisdiction beyond the narrow definition of the vicinity of defence land 'raised concerns about the creation of a national force of paramilitary riot police'.[66] The NUJ's witnesses agreed that a consequence of the Bill might be to introduce a national police force 'by the back door' which would be—

    ... a non-accountable national police force, technically owned by a senior civil servant at the Department of Defence, technically an agency, accountable only to the Secretary of State for Defence with a committee appointed only by the Secretary of State for Defence, that would quite specifically be used nationally in things like industrial disputes ... [67]

The Secretary of State's view was that the MDP was a national police force already, in the sense that the MoD estate, for which it was responsible, was organised nationally and that it was comparable to the British Transport Police in this respect.[68] The ACPO representative refuted the more alarmist press reaction—

    I give no credence at all to the suggestion that this is some cunning plot to bring about a national police organisation [69]

He did not believe that the MDP would seek to increase its role, given the challenge of its 'core task' of policing defence property, nor did he anticipate that there was any likelihood that the policing of town centres would become the 'domain of the MoD police'.[70] DUS (CM) believed press reports about the creation of a national police force to be 'misleading' and emphasised that—

    ... in all cases where the proposed changes in legislation will take effect, save in the very limited one of the Ministry of Defence Police coming across an emergency situation where they have to act, all the other changes would relate to where they are acting in response to a request from a Home Department force or a Home Department chief constable.[71]

The Secretary of State agreed that this was the case.[72]

36. We explored with Ministry of Defence witnesses where the impetus and motivation behind the Bill's proposals on the jurisdiction of the MDP had arisen. DUS (CM) was clear that—

    ... the proposed changes in legislation originated with the Ministry of Defence Police, with the former Chief Constable.

and that the MoD was not being pressured by the Home Office, for example, to extend the MDP's jurisdiction in this way.[73] We asked him why the MoD was seeking to change the way in which the MDP is able to respond to requests for assistance from Home Department police forces.[74] We wished, in particular, to establish whether this proposed change was inspired by experience of the protests over fuel prices which occurred in September 2000. Under the present legislation, MDP police officers would not have constabulary powers to assist local police forces in such situations away from the immediate vicinity of MoD establishments. The outgoing Chief Constable of the MDP made specific reference to policing the fuel protests in respect of the present limits on MDP jurisdiction in his speech last October to the Defence Police Federation—

    ... we still have anomalies in respect of our jurisdiction which is presently legislated for in the MDP Act of 1987. A more recent and poignant example was that of a request from 2nd PUS for us to supply police officers on a mutual aid basis during the fuel crises. I wrote back to the 2nd PUS and told him that he could have as many officers as reasonably practicable but he wouldn't be able to use them for the specific role that the Home Office had intended (that of aiding fuel convoys or policing picketed oil refineries). Having explained our dilemma in great legislative detail it wasn't long before the 2nd PUS was on the case. It has always been a point of great concern that fundamental issues such as where and when we can exercise the power of Constable have taken such a long time to be formally recognised. At last we have the final pieces of the jigsaw in place and ironically, it is the Armed Forces Bill 2001 which is the vehicle we are using to make these final changes.[75]

If the Bill becomes law as presently drafted, the MDP Chief Constable would be able to provide assistance to local forces, if he had the resources and wished to use them in this way.[76] The Chief Constable would retain the authority to decide whether or not to use his officers to assist another force in response to any request. He told us—

    I am very clear about my operational independence ... I would have no hesitation in terms of an operational decision of not committing MDP resources.[77]

The Secretary of State said there was no 'ulterior motive' behind the proposed changes.[78] There were three reasons for them—

    Firstly, we now have some considerable experience, 13 years I think, of the operation of the 1987 Act which consolidated the powers in relation to the Ministry of Defence Police, which has demonstrated certain weaknesses, not significant weaknesses but areas where we judge it appropriate to bring the law up to date to reflect the current reality, and therefore these modest changes are designed to achieve that in the first place. Secondly, there have been some changes in the way in which the Ministry of Defence Police have operated since 1987, and in particular they have become more mobile, they have a jurisdiction in defence establishments but when they are organised to travel between defence establishments it seems to make sense, to me at any rate, that they should have certain rights between defence establishments. Thirdly, and perhaps most importantly as far as the number of changes are concerned, to facilitate co-operation between the Ministry of Defence Police and other police forces, to ensure that there is mutual support between people wearing police uniforms, and really the existing arrangements do not allow that to happen to the extent we believe should be appropriate.[79]

37. The Chief Constable of the MDP agreed that increased mobility, public expectation about police officers, and the need to provide a secure legal basis for MDP officers acting outside the defence estate were the motivation behind changing their powers to act in emergency situations.[80] The MoD has provided us with a dossier of cases demonstrating circumstances in which MDP officers have encountered incidents when moving between bases.[81] In responding to these incidents in a way they felt was incumbent upon them as police officers, they risked legal challenge because their constabulary powers do not currently extend beyond the defence estate. In dealing with incidents outside MoD property they currently have only the same powers as a member of the public. ACPO are anxious that the MDP should not use the 'emergency' powers which would be conferred on them by the Bill actively to increase their involvement outside the defence estate—

    ... many more mobile patrols seem to be undertaken by the MDP officers and in doing so we would be determined to make sure that officers were not leaving their bases and patrolling in order to find incidents to attend.[82]

But accept that—

    The last thing any of us would wish to see is a marked police vehicle with what appears to be a police officer in it driving past the scene of an accident.[83]

The ACPO witness believed the legislation would improve the current position by providing clarity and transparency in what was currently 'a grey area'. There would be increased accountability because it would be clearer to all concerned where the MDP fitted into the chain of command.[84] The ACPOS representative believed that the emergency situations which the Bill's proposals are addressing were not numerous but that clarification of responsibility was important.[85]

38. We do not share the more extreme concerns about the motivation behind the extension of the jurisdiction of the MDP. However, less suspicion might have arisen about the intention of the legislation if the government had introduced a separate Bill, specifically to amend the 1987 Ministry of Defence Police Act, rather than tacking these proposed changes on to a Bill primarily intended to deal with Service discipline. The Secretary of State pointed out that—

    It has always been the case that the quinquennial legislation dealing with Armed Forces discipline has been used to deal with a wider range of issues.[86]

That is so, but we do not accept that this means it was necessarily the most appropriate approach in this case and we hope this will be borne in mind when similar legislation is brought before Parliament in the future.

39. We believe that there is a case for giving MDP officers greater powers than that of a citizen when they are attempting to deal with emergency situations which they come across in fulfilling their normal duties. However, we would be completely opposed to the MDP actively seeking to increase its involvement in general policing duties which are the proper responsibility of local police forces. We recommend that, if and when these powers are conferred, the number of incidents dealt with by the MDP under their new powers are scrupulously monitored and that the MoD and the Chief Constable ensure that action is taken if there is any evidence emerging that the MDP are beginning to act frequently outside their specified areas of responsibility.


40. The Chief Constable of the MDP told us he was 'very comfortable' with the levels of accountability which he believed existed for the MDP: to the law, to Parliament, to the MoD Police Committee, and to his fellow senior police officers.[87] However, the MDP's accountability is different from Home Department police forces, as the Chief Constable acknowledged.[88] There is a police authority for each Home Department police force, with a statutory responsibility for securing the maintenance of an efficient and effective police force for its area and with a membership of local councillors, magistrates and independent members. Under the Police and Criminal Evidence Act 1984, police authorities have a legal responsibility to consult the general public: police community consultative groups, (in different forms and with different names) exist for all Home Department forces and hold regular public meetings. In contrast, MDP accountability procedures are contained within the Ministry of Defence. It is accountable to the Secretary of State, as an MoD Agency and the Secretary of State saw no difficulty in political accountability being exercised in this way.[89] Day to day responsibility for the MDP is delegated to the Second Permanent Under Secretary who is the owner of the Agency and who chairs the Ministry of Defence Police Committee. The committee's membership includes senior Service and police personnel, MoD officials, and what the Secretary of State described as 'three lay members'.[90] It was not immediately apparent to us, from the list set out in the MDP's last Annual Report, which of the Police Committee members could be described in this way.[91] The MoD has subsequently informed us that the membership of the Police Committee has changed and now includes three independent members, of whom one is a trade union representative, and another represents the Army Families Federation.[92]

41. Witnesses from the National Union of Journalists, two of whom had had direct and well-publicised experience of the MDP, believed that accountability was a key issue. They told us that some of their concerns about the proposals to extend the MDP's jurisdiction would be allayed if public accountability was introduced alongside the Bill's proposals.[93] We agree that this lack of public accountability is a negative and singular feature which sets the MDP apart from other civilian police forces. It may be possible to justify this if the MDP's activities are solely concerned with defence personnel and property but, if the MDP is to come into more frequent contact with the general public, we believe this should be accompanied by a form of external accountability comparable to the role performed by police authorities and police consultative committees in Home Department police forces.

42. We were pleased to have confirmation that the MDP's relationship with the Police Complaints Authority is identical to that of other civilian police forces, whether its officers are operating on or off the MoD estate.[94] The Secretary of State also agreed to look at putting the MDP on the same statutory basis as other civilian police forces in relation to inspections by HM Inspectors of Constabulary, to replace the current more informal arrangements.[95] We welcome the recent addition of three independent members to the MoD Police Committee but believe it is important that accountability is further enhanced by the inclusion of representatives of the wider community. We recognise that the MDP does not serve a geographically defined community in the same way as Home Department police forces, but it should not be beyond the imagination of those responsible to devise ways of changing the composition of the committee so that it more closely mirrors the functions performed by police authorities and community consultative groups for other civilian police forces. We recommend that the composition of the MoD Police Committee should be reviewed and that at least a third of its members should be drawn from outside the civil service, the police service or the Armed Services.


43. At the time of the passage of the Ministry of Defence Police Bill through Parliament it was stressed that the MDP would work in close co-operation with Home Department and Scottish police forces. Guidelines for co-ordination of activities between the MDP and local forces are now contained in Protocols agreed by the two parties.[96] The first assertion in the Protocols is that primary responsibility for the maintenance and enforcement of the criminal law rests with the Chief Constable of the local police force, and the Deputy Chief Constable of the MDP assured us that—

    The absolute primacy of geographical constabularies is not challenged ... We respect that, we recognise it and we understand it.[97]

The ACPO witness told us that—

    ... the protocol has worked exceptionally well, both at a political (with a small 'p') level and at a practical level. Both sides invested a great deal of time and effort in ensuring that that protocol did capture the reality of the situation that it was going to have to deal with, and as a result of that there are no fundamental flaws or issues within it at all.[98]

The ACPOS representative said that the success of the relationship between the MDP and Scottish police forces hitherto had resulted from close co-operation and joint planning, based on the Protocol, and that he expected that to continue in the future.[99] Neither of these witnesses believed there was an issue of rivalry between the MDP and their own forces and assured us that when they were required to work together, such as in policing demonstrations at military bases, the process worked well.[100] The Defence Police Federation, the representative organisation for MDP officers, agreed that the MDP and Home Department forces complemented each other.[101]

44. It is envisaged that new Protocols will be drawn up to take account of the Bill's provisions[102] and evidence we received from local police forces made clear how important this will be to the success or otherwise of the Bill's proposals on the MDP. ACPOS stressed that it was 'extremely important' that such an extension of the MDP's jurisdiction—

    ... is properly managed and controlled to prevent a situation where we have various forces empowered to lawfully perform duty in the same area, thereby leading to considerable confusion, ambiguity and differing working practices which will undoubtedly impact on service delivery to the public.[103]

and reiterated in oral evidence that the detail set out in the revised Protocols would be fundamental to the process—

    ... I do not think this Bill can stand on its own; it has to lie alongside a protocol between the local force and the Ministry of Defence Police ...[104]

The Chair of ACPO's General Policing Committee assured us that—

    I have an agreement with the Ministry of Defence Police that we will sit down as soon as this legislation is passed to draw up a new concordat ... so that it is clearly outlined in what circumstances Ministry of Defence Police officers are able to act with statutory powers.[105]

45. The ACPOS witness gave us an example of one of the ways in which the Bill's provisions, giving the MDP full constabulary powers to deal with emergencies outside of defence property, might create additional complications for the working relationship. Having arrested a member of the general public in such a situation, a question arises at what point, if any, would the MDP hand over responsibility for taking the case through the legal process to the local police force.[106] The MDP Deputy Chief Constable told us that MDP officers are trained in the same way as any other civilian police officer to prepare case files for the Crown Prosecution Service and its equivalents, and that they deal with these matters now as part of their normal duties. In relation to the extension of the jurisdiction, a case arising from an emergency would be handed over to the local force at the earliest opportunity, with MDP officers contributing to reporting the case as necessary. The DUS (CM) confirmed that the precise details of how this would work would be spelt out in the revised Protocols.[107]

46. It is clear to us that the detailed agreements reached in the revised Protocols between Home Department police forces and the MDP will be the determining factor in how well the extension of the MDP's powers works in practice. It is difficult for us, confronted by the bare bones of the proposals contained in the Bill, to be confident that no problems will arise in practice. We are reassured to some extent by the previous success of the Protocols; by the obvious conviction of those on the ground that these proposals can be made to work; and their determination to achieve this. We believe that it would contribute to accountability and ensure all parties are clear about the detail of the arrangements if the Protocols were more obviously public documents than their current status, as departmental circulars, allows. The Secretary of State saw no problem with this.[108] Continued effective co-operation and co-ordination of activities between the MDP and local police forces is a matter fundamental to public confidence in policing. We welcome the Secretary of State's assurance that the revised Protocols, once agreed, will be published and made readily available to the general public. We expect the MoD and the Home Office to monitor the operation of the revised Protocols with great care, with a view to further early revision if this proves necessary.


47. The Ministry of Defence Police differ from other civilian police forces in that all uniformed officers are trained in the use of firearms and they more routinely carry firearms when on duty. The rules controlling the bearing of firearms by the MDP need to be beyond doubt or misunderstanding if the MDP is to take on a role which brings them into more frequent contact with the general public. The ACPOS witness told us—

    ... what we jealously guard in Scotland, and I am sure our English and Welsh colleagues do, is the fact that we do not routinely arm our police officers. What we do not want is a situation whereby Ministry of Defence Police officers, who I have already said to all intents and purposes are police officers in the public eye, are seen to be routinely armed and coming out of bases with arms on show to the public.[109]

In written evidence ACPOS stressed that the firearms issue is one—

    ... which requires to be addressed ... it will be necessary to fully explore the implications of self-arming and whether a policy is required in this respect. The overriding principle must be that members of the public and indeed other police officers will not be at risk by the armed intervention of MDP officers.[110]

48. The Deputy Chief Constable of the MDP gave us a very clear statement of the circumstances in which MDP officers carry firearms—

    ... Ministry of Defence police officers who are required to be armed within the MoD estate ... generally do not carry firearms outside of the MoD estate. I said 'generally' because there are a very small number of exceptions. We escort very sensitive loads of material up and down the country and there are a very small number, one or two other special circumstances ... other than in the special circumstances I have alluded to today MoD officers cannot carry firearms and ammunition outside during their duty. If we have to move firearms from one establishment to another very special arrangements are in hand. Ammunition and firearms are not transported together ...

and there is nothing in the Bill which will alter these arrangements.[111] The Defence Police Federation assured us that the MDP follow ACPO and ACPOS guidelines on the carrying and use of firearms and the Deputy Chief Constable also confirmed this.[112] The issue of firearms is not dealt with specifically in the Protocol between the MDP and Home Department police forces. The Scottish Protocol is more detailed: it acknowledges that the MDP are 'legally entitled to possess firearms' but requires consultation with the local Chief Constable before they are taken outside MoD property.[113] The ACPOS witness was content with the way this operated in practice.[114]

49. The proposals in the Bill do not alter the circumstances in which the MDP will carry firearms. The present arrangements for keeping local forces informed when armed MDP officers escort sensitive convoys seem to work effectively. Nevertheless, we believe that the increased visibility of the MDP on the public highways as a result of their more mobile pattern of working, and their likely increased contact with the general public arising from the Bill's provisions, necessitate precise, formal agreements on the carrying of firearms by the MDP being in place. We recommend that the revised Protocols between the MDP and local forces address the matter of where and when firearms are carried by MDP officers, specifically and in detail. The Chief Constable of the MDP should agree with his counterparts in local forces whether any additional measures are necessary to ensure that the provisions on firearms in the revised Protocols are clearly understood by all MDP and other civilian police officers, and that they are strictly adhered to.


50. The Ministry of Defence Police are trained at their own Police Training Centre at Wethersfield in Essex. The Deputy Chief Constable of the MDP told us that recruits were selected from the same pool as Home Department forces, to the same nationally agreed standards, and that, like other civilian forces, their training follows the national police training curriculum. Instructors at Wethersfield are certified to the same standard as other police trainers; they also train Home Department recruits; and the MDP's CID training course is franchised to enable such training to be provided to other police forces.[115] The Defence Police Federation confirmed that they believed their members' training was 'identical' to Home Department forces.[116] It seems, however, that Chief Constables of Home Department forces are either not aware of these parallel standards or do not have complete confidence in them. ACPO believe that the proposed extension of MDP jurisdiction should 'include a requirement that their training be up to a certain standard',[117] although in oral evidence their representative said that—

    We recognise that the MOD in their selection and recruitment have mirrored, to a great extent, what has been going on in the Home Office forces.

He believed that the new Protocols should seek to reassure Home Department forces and the public that the training MDP officers receive gives them the necessary skills to cope with their new powers.[118] ACPOS, too, apparently believe that MDP officer training differs from Home Department forces, and their representative, the Assistant Chief Constable of Strathclyde Police, believed local force commanders would need an assurance about the training levels of MDP officers if they are to operate within their areas.[119]

51. We accept that the training of MDP officers is of a standard comparable to Home Department forces; however, theoretical training on a course is one thing, learning 'on the job' is another. Our concern centres on the range of experience of MDP officers, particularly in dealing with the general public. The Deputy Chief Constable told us that the level of public complaints against the MDP are about a tenth of what would be normal for a Home Department force of a comparable size. We regard this as laudable; however, the Deputy Chief Constable himself accepted that this was largely because the MDP deal with 'a more restricted public ... in a more restricted number of situations'.[120] This is not to say that the MDP have no contact with the public: their jurisdiction brings them into frequent contact with civilian residents in Service family quarters and with civilian employees and contractors on defence property; and they often work with local police forces in the difficult circumstances of dealing with protestors at defence establishments.

52. It is difficult to foresee at this stage precisely how the nature of the MDP's role might change if this Bill becomes law because so much depends on the detail contained in the resulting Protocols. It is at least possible that the Bill's proposals will result in greater MDP contact with the general public, rather than simply giving them a stronger legal basis for the role they already perform. If it becomes clear that implementation of the Bill's provisions has resulted in the MDP having an expanded public role, we would expect the MoD to monitor any adverse effects and to take appropriate remedial measures in MDP initial and in-career training. Secondments between the MDP and local police forces already take place and are considered valuable by both sides.[121] The Bill includes a provision to give MDP officers on secondment to Home Department forces full constabulary powers, which clears up some technical difficulties which exist at present.[122] We regard secondments as a sensible way to build on the relationship between the MDP and local forces and to broaden the experience of MDP officers and we believe they should be actively promoted.


Legal representation for Service personnel

53. In examining the operation of the Service Discipline Acts (SDAs), we wished to establish whether Service personnel have the same access and choice in the legal representation available to them as civilians and whether they might be disadvantaged by any lack of entitlement to legal aid. Forces Law, a network of solicitors who frequently represent Service personnel, told us of their concerns in this respect, which were—

  • the differences in legal representation available to Service personnel stationed in the UK and overseas;

  • the point at which Service personnel become eligible for legal aid, compared to civilians; and

  • whether Service personnel have sufficient access to what they would regard as independent legal advice.

54. A member of the Services interviewed at a police station in the UK (whether a Service police station or a civilian police station) may be represented by a civilian duty solicitor or another solicitor prepared to accept duty solicitor rates of pay.[123] We regard this as an acceptable arrangement. However, we wished to clarify the current position on the availability of legal representation at the Service police interview stage for Armed Forces personnel serving overseas. Until the end of 1999, Service personnel overseas had access in these circumstances, under Legal Aid Board arrangements, to civilian duty solicitors but this provision was withdrawn as part of an overall change in the legal aid system for UK citizens overseas.[124] The position at present, therefore, is that a Service man or woman is limited to advice from Service legal officers during a Service police interview, unless they are prepared to meet the costs of a civilian solicitor out of their own funds. Under reciprocal arrangements, Army personnel are offered an RAF legal adviser and vice versa. Army and RAF personnel may also contact a civilian legal representative of their choice by telephone, or by video link if this is available.[125] (Navy personnel serving overseas are almost always repatriated to the UK and dealt with under the UK system of legal representation.)[126]

55. The Ministry of Defence accept that this change in provision 'may be seen to some extent to represent a decline in the availability of choice'[127] and have informed us that new arrangements will be introduced in April this year, under the provisions of the Criminal Defence Service Bill currently before the House, to be administered by the Legal Services Commission (which has replaced the Legal Aid Board). These arrangements will, amongst other things, restore access to civilian solicitors for Armed Forces personnel at Service police interviews overseas. We welcome the acceptance that the 1999 changes disadvantaged Armed Forces personnel serving overseas and the reintroduction of their entitlement to legal advice from civilian solicitors proposed in the Criminal Defence Service Bill.

56. The second concern of solicitors with experience of legal cases in the Armed Forces is that, unlike civilians, Service personnel are not charged at the end of the police interview. At this stage, they are informed that their case will be reported for disciplinary action and the equivalent to the 'charge' stage of the process does not occur until the prosecuting authority has examined the case and instructed the commanding officer to serve papers on the accused person. Legal aid is not available until these papers are served, and witnesses told us that this process could take as long as six months, or even a year.[128] Solicitors believe that this disadvantages Service personnel in that the time lapse arising from their inability to appoint a legal representative before prosecution papers are served (unless they pay for this themselves) means that the opportunity to obtain witness statements and gather evidence in support of their defence may be lost.[129]

57. The MoD view is that it is necessary for the commanding officer to be satisfied that the case should proceed; and that if he is unable to deal with a case under the summary discipline system, he has to refer it to a higher authority (ie the officer to whom he is immediately responsible in the disciplinary chain of command) if the case is to go to court-martial. This process takes time but the MoD told us that there have only been 'a very few cases' where it had taken as long as 12 months for prosecution papers to be served and that the Services were seeking to reduce delays wherever possible.[130] The Director General of Service Personnel Policy at the MoD said that he had not previously been aware of this problem and undertook to look again at the time which elapses before legal aid becomes available to Service personnel.[131] In the Army, a Director of the Office of Standards of Casework has been appointed to monitor and eradicate delays and the Army's Director of Personal Services was confident that this would give the Army much greater 'visibility' of the administration of casework.[132] The MoD told us that 'Of course, the CO [commanding officer] has a responsibility towards the accused to make sure that they have access to advice and representation'.[133] We agree, and we hope that procedures will be reviewed to ensure that they do not prevent commanding officers fulfilling this responsibility.

58. The representatives of Forces Law believed that there was a perception amongst some Armed Forces personnel that Service legal officers are not always sufficiently independent in the advice they provide because they are too closely associated with the chain of command.[134] In some cases, this perception led Service personnel to choose to have no legal representation at all rather than use a Service legal officer.[135] The MoD told us—

    There is no evidence to show that Service personnel are dissatisfied with arrangements that allow them to be represented at Service police interviews free of charge by Service legal advisers.[136]

although no surveys have been undertaken to assess levels of satisfaction.[137] The MoD believed there was no question of Service lawyers having divided loyalties and emphasised that they worked to the standards laid down by their professional bodies; in practice the only way to judge the service they provided was on their performance.[138]

59. We have no reason to doubt that Service lawyers provide a proper service and that they are professional in the way they undertake their duties. MoD tell us that it is a 'rare occurrence' for personnel to request civilian rather than Service lawyers[139] and we believe this reflects a generally high level of confidence in Service legal officers. However, it is important that Service personnel believe that they have access to justice on the same basis of fairness which civilians enjoy. This is one area where differences between the Armed Forces and wider society, which are appropriate in some aspects of military life, are not acceptable. We believe that, wherever possible, Service personnel should be given access to civilian lawyers, if that is their choice, and that sufficient levels of legal aid should be available to facilitate this. There is scope for extending the use of video links to enable individuals to consult legal representatives when they are stationed overseas, without travel costs being incurred, and we believe that the MoD should take the necessary steps to ensure the appropriate technology is available wherever possible.


60. Our predecessors in 1991 and in 1996 looked at the issue of the terms of service of Armed Forces personnel recruited under the age of 18 and recommended that the rules be reviewed. Under-18s can give two weeks' notice to leave the Services at any time between one month and six months' service. After the six-month period has elapsed, they cannot then give notice to leave the Services until they have served for three or four years from the age of 18, when they can give 12 months' notice.[140] Our predecessors commented that under-18s were disadvantaged in that their minimum time to serve (MTS) was not calculated from the time they joined the Services, which would be the case for personnel over 18, but from the age of 18.[141] At Ease, a voluntary advisory organisation for Service personnel and their families, described the position of under-18s in the Armed Forces as 'bonded servitude'.[142]

61. We cannot accept this. In addition to the ability to give notice within the six-month period, there is also a facility for 'unhappy juniors' to be discharged up to the age of 18 (or 18 and three months in the Army) if their service in the forces is clearly the cause of their unhappiness.[143] Nor is this simply left to the discretion of the commanding officer (CO): the Army's Director of Personal Services told us that, under Queen's Regulations, there was a 'specific requirement' on COs closely to supervise young people who were clearly unhappy and not to prevent them leaving if they wished.[144] The Director General of Service Personnel Policy said that he had 'never known of cases in which a commanding officer was difficult about a youngster wanting to leave' and that it was not in the interests of the Services, or young people themselves, to keep them if they wished to leave.[145]

62. At Ease believed that the requirement to serve for four years from the age of 18 was not made sufficiently clear to recruits or their parents during the recruitment process and that many believe they will 'sign on again for adult contracts at the age of 18'.[146] The MoD believed that the commitment recruits were making was—

    ... spelled out very clearly to them during the recruiting process ... the procedures are there and it is laid out. The extent to which an individual comprehends what is being meant by the term for which he is signing is something which is impossible to judge.[147]

At Ease were also concerned by the focus in Service advertising campaigns on education and training opportunities, because they believe any Service man or woman taking up an education or training course is required to sign a waiver forfeiting their right to give 12 months' notice to leave the Services.[148] In response, the MoD asserted that, with the exception of university cadetships—

    ... there is no possibility that a soldier, sailor or airman, under the age of 18, would be required to extend his service as a result of a training course which he could have undertaken at that stage.[149]

63. We welcome the clarification of the position of under-18s in the Armed Forces which the MoD has provided and we are satisfied that the provisions in place are adequate to allow those who are genuinely unhappy to leave. Healthy levels of recruitment to the Services are crucial to their continued ability to meet the requirements placed upon them. We believe it continues to be important to recruit young people straight from school, including at the age of 16; if they are not caught at this point, they are likely to take up other careers and be permanently lost to the Armed Forces. We agree with the Defence Committee, that publicising the education and training opportunities available in the Armed Forces is a key recruitment tool which the Services must exploit if they are to continue to attract sufficient numbers of young people from a shrinking pool in a competitive employment market.[150] The Defence Committee did comment, however, that it was necessary to ensure that 'appropriate safeguards are in place to guard against poor recruitment practices'.[151] We believe it is poor practice to recruit any young person, but particularly those under 18, without ensuring that they and their families fully understand the commitment they are entering into. We recommend that the information provided to potential recruits under 18 is examined and if necessary revised to ensure that it is clear and unequivocal about the length of time they will be required to serve. Recruitment officers have a responsibility to ensure that this information is understood by recruits, before they are asked to sign any documents.


64. As is clear from this Report, few of the Bill's clauses are controversial, but those relating to the Ministry of Defence Police are, and have occupied a great deal of our consideration.

65. The need for a comprehensive overhaul of the Service Discipline Acts was a matter of great concern to our predecessors in 1991 and 1996 and the requirement for this becomes more crucial every time the Acts in their existing form are amended. We have accepted that consolidation is no longer worthwhile and that the focus should now be on moving to a tri-Service Act as expeditiously as possible. We do not agree with the MoD that this can await the next five-yearly review of Service discipline, which will not take place until the 2005-06 parliamentary Session, and we expect, in response to our recommendations, that a draft tri-Service Bill will be presented to Parliament within three years.

66. The way in which the House examines future proposals to amend Service discipline will depend to a great extent on the timing and nature of the proposed legislation. Our examination of this, quite limited, Bill has necessitated many hours of detailed work. The controversy surrounding the composition of this Committee does not detract from our belief that a select committee process of some kind will continue to be necessary and valuable for future Bills—and indeed provide a model which could be followed with benefit for other types of legislation. There are some minor defects to the procedures which we have pointed out—we hope these will be taken into account in the course of considering future scrutiny of the tri-Service Act.

67. We have reported the Bill to the House, with Amendments.

1  Bill of Rights, 1688-9, Article VI Back

2  See Report from the Select Committee on the Army Act and Air Force Act, Session 1953-54, HC 223, paras 111-112 Back

3  See Clause 1 of the Bill Back

4  S.O. No. 152 Back

5  The list of Amendments tabled in the Committee is appended to this Report.  Back

6  Bill 62 Back

7  The Association of Chief Police Officers of England, Wales and Northern Ireland (ACPO) and the Association of Chief Police Officers in Scotland (ACPOS) Back

8  See pp li-liii for a full list of witnesses Back

9  See Volume II, Ev pp 167-269 Back

10  An itinerary and list of interlocutors for the visit to Kosovo and Cyprus is annexed to this Report. Back

11  See HC Deb, 9 January 2001, c 1028 Back

12  The motion to appoint the Committee was considered by the House on the same day as the Second Reading debate, see HC Deb, 9 January 2001, cc 893-1028 Back

13  The 1996 Select Committee on the Armed Forces Bill included four members of the Defence Committee Back

14  HC 223, Session 1953-54, op cit, para 111 Back

15  First Special Report of the Defence Committee, Session 2000-01, Annual Report of the Committee for Session 1999-2000, HC 177, para 54 Back

16  First Report from the Liaison Committee, Session 2000-01, Shifting the Balance: Unfinished Business, HC 391, para 82 Back

17  For the most recent examples, see Special Report from the Select Committee on the Armed Forces Bill, Session 1990-91, HC 179, and Special Report from the Select Committee on the Armed Forces Bill, Session 1995-96, HC 143 Back

18  The 1991 Select Committee on the Armed Forces Bill was nominated on 6 December 1990 and reported to the House on 24 April 1991; it held seven sessions of oral evidence and made five visits. The 1996 Select Committee was nominated on 10 January 1996 and reported to the House on 30 April; it held nine sessions of oral evidence and made three visits. Back

19  Second Report from the Defence Committee, Session 2000-01, Strategic Defence Review: Policy for People, HC 29-I Back

20  Appendix 3, Ev pp 172-174 Back

21  HC 143, Session 1995-96, op cit, paras 25-29 Back

22  HC 29-I, Session 2000-01, op cit, paras 35-41, 121-128 Back

23  Appendix 4, Ev pp 175-229, and Appendix 11, Ev pp 249-255 Back

24  HC 179, Session 1990-91, op cit, para 44 and HC 143, Session 1995-96, op cit, paras 36-37 Back

25  HC 143, Session 1995-96, op cit, para 37 Back

26  Fourth Report from the Defence Committee, Session 1999-2000, HC 253, Armed Forces Discipline Bill [Lords], para 28 Back

27  Strategic Defence Review, Ministry of Defence, July 1998, Cm 3999, para 133 Back

28  HC Deb, 9 January 2001, c 894 Back

29  Q 1030 Back

30  Q 1135 Back

31  QQ 5-45 Back

32  QQ 1138-1139 Back

33  Q 5 Back

34  QQ 12, 31 Back

35  QQ 5, 31-32 Back

36  Q 42 Back

37  See HC 253, Session 1999-2000, op cit Back

38  QQ 1007-08 Back

39  See Appendix 1, Ev pp 167-170 and QQ 1-493 Back

40  QQ 89-99 Back

41  See Appendix 6, Ev pp 232-233 Back

42  Appendix 6, Ev p 233, para 11; Appendix 17, Ev p 266; see also HC Deb, 6 February 2001, c 462w Back

43  Appendix 6, Ev p 233, para 10 Back

44  Appendix 6, Ev p 232, para 4 Back

45  Q 1005 Back

46  QQ 206-209; 407-408 Back

47  Proposals to create the MPGS were considered by the 1996 Select Committee on the Armed Forces Bill (see HC 143, Session 1995-96, op cit, paras 6-10) and by the Defence Committee in its Eighth Report, Session 1995-96, Ministry of Defence Police and Guarding, HC 189, paras 68-83 Back

48  For a detailed description of the range of policing and guarding organisations on the MoD estate, see Private Security, B George and M Button, Chapter 16, Ministry of Defence Security Back

49  Q 725 Back

50  See QQ 445-460 Back

51  Appendix 6, Ev p 234 Back

52  HC 143, Session 1995-96, op cit, paras 6-10; HC 189, Session 1995-96, op cit Back

53  Q 1098 Back

54  QQ 321, 487. See also Explanatory Notes to the Bill, para 107 Back

55  Q 321 Back

56  Q 809 Back

57  HC Deb, 27 January 1987, c 279 Back

58  Chief Constable's Annual Report and Accounts 1999-2000, HC 609, July 2000; QQ 436-437, 442 Back

59  Q 765 Back

60  Q 548 Back

61  Appendix 6, Ev p 234, para 3 Back

62  Q 725 Back

63  Q 726 Back

64  QQ 1096, 1097, 1104 Back

65  Q 1099 Back

66  Observer, 4 February 2001 Back

67  QQ 807, 840 Back

68  Q 1097 Back

69  Q 680 Back

70  QQ 699, 705 Back

71  Q 727 Back

72  Q 1118 Back

73  QQ 726, 730 Back

74  'Home Department' police force is used here and elsewhere for convenience and should be taken to include Scottish police forces, which are the responsibility of the Scottish Executive Back

75  Speech by Mr Walter Boreham OBE, then Chief Constable of the MDP, to the Defence Police Federation Conference, 17 October 2000, available on the Defence Police Federation website at Back

76  QQ 728-732 Back

77  Q 735 Back

78  Q 1121 Back

79  Q 1096 Back

80  Q 725 Back

81  Appendix 6, Ev pp 234-238; see also Q 489 Back

82  Ev p 86; see also Q 676 Back

83  Ev p 86 Back

84  Q 678 Back

85  Q 496 Back

86  Q 1103 Back

87  QQ 736, 738 Back

88  Q 736 Back

89  Q 1123 Back

90  Q 1123 Back

91  Chief Constable's Annual Report and Accounts 1999-2000, HC 609, p 5 Back

92  The full membership of the MoD Police Committee is as follows: Sir Roger Jackling KCB CBE, Second Permanent Under Secretary, MoD (Chairman); Admiral Sir Peter Abbott GBE KCB, Vice Chief of Defence Staff (Vice Chairman); Mr Michael Legge CB CMG, Deputy Under Secretary Civilian Management; Major General P A Chambers, Deputy Chief of Staff HQ Land Command; Rear Admiral R G Lockwood, Chief of Staff to the Second Sea Lord and Commander in Chief Naval Home Command; Air Vice-Marshal A J Burton OBE, Air Officer Administration; Mr N Evans, Director General Defence Logistics (Finance and Business Planning); Sir David O'Dowd CBE QPM, HM Chief Inspector of Constabulary, Adviser to Police Committee (England and Wales); Mr William Taylor OstJ QPM, HM Chief Inspector of Constabulary, Adviser to Police Committee (Scotland); Ann Kelly, independent member; Mr Bob Bowman, Secretary, MoD Council of Civil Service Unions; Mrs Sally Osment, Vice Chair of the Army Families Federation; and Mrs Gloria Craig, Director General Security and Safety (Clerk to the Police Committee) Back

93  QQ 845-846 Back

94  Q1116-18 Back

95  QQ 1111-12 Back

96  For England and Wales, the latest version is the Co-ordinated Policing Protocol between the Ministry of Defence Police and Home Office Police Forces, contained in Home Office Circular 17/1999; in Scotland, this is the Protocol between Ministry of Defence Police and the Police Forces in Scotland, contained in Scottish Executive Police Circular 14/1999. Back

97  QQ 435, 489 Back

98  Q 673 Back

99  Q 532 Back

100  QQ 495, 518-526, 682, 721 Back

101  Q 597 Back

102  Q 775 Back

103  Ev p 65 Back

104  Q 517 Back

105  Ev p 86 Back

106  Q 516 Back

107  QQ 775-776 Back

108  QQ 1107-08 Back

109  Q 499 Back

110  Ev pp 64-65 Back

111  QQ 430-431 Back

112  QQ 594 and 430 Back

113  Police Circular 14/1999, op cit, para 7 Back

114  Q 500 Back

115  Q 490 Back

116  QQ 592-593 Back

117  Ev p 86 Back

118  Q 692 Back

119  Ev p 64; Q 518 Back

120  Q 751 Back

121  Q 695 Back

122  QQ 438, 471 Back

123  Appendix 18, Ev p 267, para 4 Back

124  Appendix 18, Ev pp 267-268, para 8 Back

125  Appendix 18, Ev p 267, paras 5-6 Back

126  Q 940; Appendix 18, Ev p 267, para 6 Back

127  Appendix 18, Ev pp 267-268, para 8 Back

128  Ev p 118, para 8b Back

129  Ev p 118, para 12 Back

130  Appendix 18, Ev p 268, para 15 Back

131  Q 937 Back

132  Appendix 18, Ev p 268, paras 15-16; Q 942 Back

133  Appendix 18, Ev p 268, para 14 Back

134  QQ 862-865 Back

135  Q 873 Back

136  Appendix 18, Ev p 267, para 7 Back

137  Q 952 Back

138  Appendix 18, Ev p 267, para 7; QQ 950-951 Back

139  Appendix 18, Ev p 267, para 7 Back

140  QQ 963, 971. The minimum time to serve varies from three to four years, depending on training and organisational requirements: see Appendix 3, Ev p 174. See also Ev p 126 Back

141  HC 179, Session 1990-91, op cit, paras 25-28 and HC 143, Session 1995-96, op cit, paras 38-43 Back

142  Ev p 129; Q 903 Back

143  Q 963 Back

144  Q 971 Back

145  QQ 969, 967 Back

146  Ev p 126 Back

147  Q 972 Back

148  QQ 904-905; Ev p 127 Back

149  Q 981 Back

150  See HC 29-I, Session 2000-01, op cit, paras 90-99 Back

151  ibid, para 53 Back

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Prepared 15 March 2001