Select Committee on Armed Forces Appendices to the Minutes of Evidence


Memorandum submitted by the Ministry of Defence


"We fully support the changes in the courts-martial system proposed in the Bill and believe they will contribute to improving still further confidence in the exercise of Service law"

  These changes came into effect on 1 April 1997. In our view, they have had the effect anticipated by the Committee on the previous Bill.

"However, we appreciate that any move in this direction might have widespread consequences and would need further and detailed investigation"

  This observation related to the extension of court martial membership to non-commissioned officers. The then Minister of State for the Armed Forces announced on 17 February 1998 that, following a review established by the previous administration, it had been decided that warrant officers should be eligible to sit as court martial members in cases where the accused is of lower rank. This Bill includes the necessary legislative proposals (in clause 19).

"We look to MoD to examine further what steps can be taken in order to speed up the process of bringing cases before Standing Civilian Courts"

  The process for bringing cases before Standing Civilian Courts (SCCs) has been, and will continue to be, kept under review. However, it now takes an average of eight months from date of offence until first hearing at the SCC. In 1996 the average time was six months.

  The most significant relevant development has been the creation of the independent Prosecuting Authorities for the Army and the RAF, in the Armed Forces Act 1996. These were established as an important safeguard in ensuring that the prosecution process is independent of the chain of command, but a by-product of this has been the introduction of an additional layer of legal advice into the SCC system, because cases are now referred from the chain of command to the Prosecuting Authorities. Before the changes were made, the Army and the RAF relied on their respective overseas legal offices—part of the chain of command—for all legal advice in relation to a SCC trial. But since 1 April 1997, while those offices have continued to advise the chain of command on the circumstances of a case, it has become the responsibility of the independent Service Prosecuting Authorities to decide whether there is sufficient evidence for there to be a realistic prospect of conviction and, if so, to institute proceedings in the SCC. It is the addition of this part of the process, rather than the way that business is conducted by the Prosecuting Authorities, which has led to cases taking longer to come to trial.

"We support the proposed changes affecting complaints procedures and access to industrial tribunals. We recommend that the regulations necessary to permit, in certain circumstances, the simultaneous pursuit of complaints internally and at an industrial tribunal be made without delay"

  Queen's Regulations now allow complaints to be brought concurrently. Any complaints brought by Service personnel to an Employment Tribunal under the Sex Discrimination Act 1975, the Equal Pay Act 1970 and the Race Relations Act 1976 normally name the Ministry of Defence as the respondent because it has a statutory liability. A complaint may not be presented to an Employment Tribunal before it has been submitted under the internal redress procedures, but can be presented concurrently. It is general practice for an Employment Tribunal to refrain from listing a case for hearing if an internal redress is known to be in train. The time limit for a Service complainant to refer a case to an Employment Tribunal on all eligible matters (except for claims under the Equal Pay Act) is six months, which is three months longer than for civilians. This allows Service personnel to complete their internal redress procedure first and, if not satisfied with the result, still to have the statutory three months to take their case to an Employment Tribunal.

"We believe that the Clause now fully meets all the legitimate concerns on the future of the site and welcome the early announcement that the University of Greenwich and the National Maritime Museum are the most appropriate contenders for its future occupancy"

  The clause, subsequently section 30 of the Armed Forces Act 1996, required the Secretary of State to have regard to the preservation, public access, character and history of the Royal Naval College, Greenwich, when granting a lease of the site.

  On this basis, responsibility for the site and buildings previously occupied by the College passed in April 1997 to the Greenwich Foundation for the Royal Naval College, whose chairman is Sir Angus Stirling, a former Director General of the National Trust. The Foundation was established as a company limited by guarantee and as a registered charity to acquire a 150-year lease of the site, signed on 6 July 1998, from the Crown charity, Greenwich Hospital. The principal objects of the Foundation are:

    —  To ensure that the buildings and surroundings contained within the site are properly cared for and maintained to a high standard, as befits their character and historical importance.

    —  To ensure that the use of the buildings is in keeping with and respects the nature of the site, and in particular that the maritime history of the site and connections with the Royal Navy are reflected in its future.

    —  To make arrangements for the public to be able to visit and enjoy the site on a regular basis and to promote its educational value.

  Since then, enormous progress has been made. The Royal Naval College has a major new educational role as part of the University of Greenwich and, from 2001, it will be home to Trinity College of Music. Some of the buildings, notably the Painted Hall and Chapel, together with the grounds, remain under the direct control of the Foundation and are open to the public daily. Major repairs and refitting are nearing completion and, with careful and sympathetic restoration, the buildings are reverting more closely to their original form. A major new visitor centre in the Pepys Building close to the Cutty Sark opened in June 2000, allowing more people than ever to enjoy the college site and learn its history.

  The Dreadnought and Devonport buildings have been acquired by the University under separate leases from Greenwich Hospital, with the agreement of the Secretary of State for Defence, in accordance with section 30 of the 1996 Act. Following extensive refurbishment, they serve as the new University Library and as postgraduate student accommodation and conference centre respectively.

"We welcome the Action Plan agreed between the CRE and MoD and urge the Department to implement it with a determination not hitherto displayed. We also urge the MoD to implement all its provisions in good time to make a full report on progress to the Select Committee on the next Armed Forces Bill"

  See separate memorandum on race equality in the armed forces.[1]

"On this basis, we do not recommend any change to the current policy"

  This related to the policy on homosexuality and the armed forces. Following the European Court of Human Rights judgement against the United Kingdom on 27 September 1999, and the subsequent review of the policy on the issue, the lifting of the ban on homosexuals serving in the armed forces was announced by the Secretary of State for Defence on 12 January 2000.

  The revised policy is framed within the law, while sustaining operational effectiveness in the Services, and respects the human rights of the individual. It is also underpinned by a new tri-Service Code of Social Conduct designed to maintain operational effectiveness and cover inappropriate personal behaviour, whether heterosexual or homosexual, and its consequences.

  The Code was well received and has been found to be a useful guide for commanding officers in dealing with issues surrounding personal relationships and behaviour, going wider than just homosexual issues.

  Since lifting the ban on homosexuals in the armed forces, the three Services have not reported any significant difficulties in adapting to the new policy. The policy was reviewed in the light of the first six months' experience. The review concluded that the change of policy has been introduced smoothly and with fewer problems than might have been expected.

"We recommend that MoD and those responsible for the chaplaincies ensure that all discussions between chaplains and personnel remain strictly confidential and that personnel are made fully aware of the context and degree of confidentiality of any discussions with medical officers"

  The welfare services which support the armed forces depend upon absolute confidentiality. Although the Chaplains have a responsibility to the chain of command, their counselling function on a personal level is an entirely separate and private matter. We do not expect them to treat personal information given to them in confidence any differently from that given to their counterparts outside the armed forces.

  Medical officers (MOs) are frequently involved in the management of personnel with welfare problems.

  Medical officers are bound by strict rules on confidentiality that are promulgated by the General Medical Council. In all cases when it is necessary to disclose medical information, every effort is to be made to obtain the patient's consent. This consent must be "informed consent" and MOs must ensure that patients understand what is to be disclosed, to whom, why and what the consequences might be. If consent is withheld, the patient must be informed if that confidentiality may need to be breached.

  In rare circumstances the MO may have to disclose information to the Commanding Officer without consent or contrary to the wishes of the patient. Such occasions arise when the security, health, safety or welfare of the unit or the individual are at serious risk. Prior to disclosure, the MO must try to obtain the patient's consent. What can and cannot be disclosed is a matter for the MO's judgement, bearing in mind that he/she may need to justify such disclosure to the General Medical Council. Homosexuality is no longer a bar to service with the armed forces and should not be disclosed to a commanding officer.

  Like any other doctor, an MO may disclose that a patient is HIV positive to the patient's known sexual partner if there is a serious and identifiable risk to that person. In such cases, the MO should endeavour to persuade the patient to disclose the information voluntarily in the first instance. The MO should not disclose a patient's HIV status to other healthcare workers against his/her wishes unless failure to do so would put the health of individual healthcare workers at serious risk. HIV status should not be disclosed to a commanding officer except in exceptional circumstances.

"We recommend that the Government ensures that the necessary resources and Parliamentary time are made available to allow for the consolidation of Service law before the passage of the next Armed Forces Bill"

  Ministers announced in May 2000 that it had been decided not to proceed with the consolidation of the Service discipline Acts, but to concentrate instead on the development of tri-Service legislation. This will address the structural issues posed by the present legislative framework, notably the difficulties in administering discipline effectively in a joint Service environment, in a way that the consolidation was never intended to.

"We recommend that the working group considering the position of under-18 year olds should give careful consideration to the desirability of requiring minors to commit themselves to a period of service no longer than that of adults."

  The working group referred to by the Select Committee was undertaking a review within the Ministry of Defence of under 18s' terms of service. This review was subsequently put into abeyance, pending the completion of work on harmonising reckonable service for engagement and pension by the Pensions Review.

  The minimum period of commitment for those entering the armed forces is known as the Minimum Time to Serve (MTS); this currently varies from three to four years depending upon training and organisational requirements. However, personnel under 18 have a statutory right to discharge within the first six months of entry.

  The Royal Navy and Royal Air Force are examining the feasibility of equalising MTS at four years for under 18s and other personnel. The Army has recently introduced revised MTS regulations (increased from three to four years for all soldiers) and wishes to examine the effectiveness of these before considering any further change. The rationale for the change is that this allows both the individual and the Army more time to develop vocational skills, which, in turn, will increase the prospects for their continued Army service or their eventual transfer to civilian life. The increase also provides the Army with an improved return on training investment, providing a useful enhancement to trained strength and leading eventually to a reduction in the numbers needing to be trained. The revised MTS will also help the Army to meet its full manning requirements.

"On balance, we believe that it would be impractical, not to mention unpopular, to place further restrictions on the ability of under-18 year olds to serve on active duty"

  The present Committee may be aware that the United Kingdom was actively and fully involved with the final drafting of an Optional Protocol to the United Nations Convention on the Rights of the Child, which was agreed in Geneva on 21 January 2000. The United Kingdom subsequently signed this Optional Protocol at the United Nations Millennium Summit on 6-8 September 2000. On signature, the United Kingdom entered the following declaration with the United Nations Secretariat:

    "The United Kingdom will take all feasible measures to ensure that members of their armed forces who have not yet attained the age of 18 years old do not take a direct part in hostilities. However, the United Kingdom understands that Article 1 of the Protocol would not exclude the deployment of members of their armed forces under the age of 18 to take a direct part in hostilities where—

        (a)  there is a genuine military need to deploy their unit or ship to an area in which hostilities are taking place; and

        (b)  by reason of the nature and urgency of the situation—

            (i)  it is not practicable to withdraw such persons before deployment, or

            (ii)  to do so would undermine the operational effectiveness of their ship or unit, and thereby put at risk the successful completion of the military mission and or the safety of other personnel."

  Detailed guidelines to this declaration are being worked out within the Ministry of Defence.

January 2001

1   See Appendix 4. Back

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