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Session 2001- 02
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Delegated Legislation Committee Debates

Draft Army, Air Force and Naval Discipline Acts (Continuation) Order 2002

Sixth Standing Committee on Delegated Legislation

Tuesday 18 June 2002

[Mr. John McWilliam in the Chair]

Draft Army, Air Force and Naval Discipline Acts (Continuation) Order 2002

4.30 pm

The Minister of State for Defence (Mr. Adam Ingram): I beg to move,

    That the Committee has considered the draft Army, Air Force and Naval Discipline Acts (Continuation) Order 2002.

The draft order was laid before the House on 1 May 2002. The Committee will be aware that Parliament is asked to consider an order of this nature in most years. Its purpose is quite straightforward: to continue in force for a further year the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957, which provide the statutory basis for discipline in the armed forces. Given that the three Acts fulfil that purpose, the Government attach the utmost importance to the order as the means of ensuring that the legislation remains in force. I am, therefore, asking the Committee today to approve the draft order, which will be considered tomorrow in another place.

The only years in which we do not generally consider an order such as this is when the three service discipline Acts come up for renewal. That is achieved by the five-yearly Armed Forces Bill. Its passage through Parliament enables us to review, as well as to renew, the discipline Acts. The draft order is presented under powers in the Armed Forces Act 2001. The next Armed Forces Bill is due to be introduced in the 2005–06 Session, and I am sure that it will help the Committee if I give a brief update on the progress of that Bill. However, before doing so, I should make one observation about the order.

The Government have given an undertaking that Ministers moving instruments that are subject to the affirmative procedure will tell the House whether they are satisfied that the instruments are compatible with the rights provided under the European convention on human rights. That undertaking covers the draft order. It is analogous with the procedure for primary legislation set out in section 19 of the Human Rights Act 1998, which provides that the Minister in charge of a Bill will certify whether it is compatible with the convention.

Of course the continuation order that we are considering today is a brief document that raises convention issues only in that it renews Acts that have been considered compatible with convention rights. However, the European Court of Human Rights decided in the case of Morris v. the United Kingdom that the procedures for post-trial review provided for in the service discipline Acts amount to a violation of article 6 of the convention. The court considered that the involvement of non-judicial authorities in the

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review of court martial findings and sentences impaired the independence of the court martial, even though the process is intended as a safeguard for the accused.

We have been considering how to react to that judgment and we had expected to have announced our intentions by now. However, the issues concerning post-trial review were given a fresh airing in a hearing last week before the Appellate Committee in the other place, and it seems appropriate to await their lordships' judgment before taking a decision on the future of the review procedure. We shall, of course, make an announcement as soon as possible.

As I have already indicated, it is essential that the draft order be approved. It renews the legislative basis for the services' system of discipline. However, as the Committee will be aware, the order extends three separate Acts of Parliament, one for each service. The Government have made clear their intention to alter the structure of the legislation better to fulfil the needs of the services and their future operation. We have stated that we wish to replace the three separate Acts with a single tri-service Act. Given the considerable interest in the House and elsewhere in seeing that come to fruition, it might be helpful if I provide a report on progress.

Following preliminary scoping work, a tri-service Act team in the Ministry of Defence was set up last September. The team is about halfway through the policy development stage, much of which is concerned with examining the differences in statutory provisions and procedures between the services and considering how best to reconcile them. The aim of that work has been to consider the impact of existing legislation in the context of the increased level of inter-service co-operation, which provided the impetus for the tri-Service Act project. Nevertheless, we recognise that for most of the time most members of the armed forces will continue to be work and live in single service environments. The requirement is to produce solutions that support operational effectiveness in both joint and single service settings.

Although discipline is a central focus of the team's work, it must also consider other areas covered by the present legislation, such as terms of service, grievance procedures and arrangements for boards of inquiry. Some of those areas raise complex issues over and above those to be expected from simply rationalising the legislation, especially in view of the fact that we would like the tri-service Act to lead to improvements in the way in which we do our business. We appreciate also that the benefits to be gained from the tri-service Act should not be achieved to the detriment of the single service ethos.

We expect to receive the final report from the policy development stage next spring. That will provide a firm basis for translating policy intentions into new legislation, although much detail will remain to be resolved.

As I said, the next five-yearly armed forces legislation is due in the 2005–06 Session. The Committee will understand that no commitments can be given at this stage as to when the tri-service

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legislation might be introduced, as it will be subject to the availability of parliamentary time. One factor is that the Bill will be extensive, demanding considerable parliamentary time. Quite apart from the issue of finding a legislative slot, our overriding concern is to get the legislation right. It is much more involved than crudely running the three present Acts together. Even less are we prepared to adopt a lowest common denominator approach.

Against that background, I am unable to offer any prospect that the legislation might be presented to Parliament in the 2003–04 Session, as suggested in last Session's special report by the Select Committee on the Armed Forces Bill. As ever, we shall keep the timing under review. However, the resources that we have allocated to the project and the progress made so far mean that we are on track to achieve the Ministry of Defence's overall schedule. That is based on being ready for the 2005–6 Session, should Parliamentary time be available.

The need for a tri-service Act derives from the importance of having a better disciplinary framework in those many circumstances in which the services work together. However, I can tell the Committee that service discipline is in good order, as is the operational effectiveness that it serves to underpin, as has been demonstrated by the operations in Afghanistan.

I am sure that the Committee would not expect me to conclude without paying a warm tribute to the qualities, including discipline, that have been so much in evidence in the personnel of all forces deployed in Afghanistan and elsewhere. We have come to expect no less. The same positive attributes are displayed in abundance wherever our personnel are serving, whether in single-service or joint environments, and however challenging the circumstances. I know that those qualities are fully valued in all parts of the House. I invite the Committee to approve the order.

Mr. Gerald Howarth (Aldershot) rose—

The Chairman: Order. I caution hon. Members to bear in mind that because the Appellate Committee has not come to a judgment, the matters before it are sub judice and are therefore not to be discussed.

4.38 pm

Mr. Howarth: I concur with the Minister in saying that, generally speaking, the draft order is not controversial, although I shall touch on matters arising from it that may be the cause of disagreement. As the Minister said, it is a straightforward measure and it is necessary that we pass it today to ensure that the full effect of the service disciplinary arrangements continue beyond 31 August.

I wish to raise four matters, the first relating to the proposed consolidated tri-service measure. I welcome what the Minister told the Committee this afternoon, principally his determination to get it right rather than to be hasty and bring a Bill before the House that has not been properly considered. I particularly welcome his statement that he intends that there should be no detriment to the single service ethos. That will be widely welcomed among the services. It is generally recognised that there would be merit in a tri-service

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measure, so long as it recognised that each service has its unique aspects. I also welcome the right hon. Gentleman's statement that there will be no resort to the lowest common denominator. My advice to him is that he should carry on and get it right rather than hastily bring an ill-considered measure before the House.

The other three issues that I want to raise will not necessarily command the support of both sides of the Committee. The European Court of Human Rights has had substantial impact upon our service practices and to some extent upon service life. I note your remarks, Mr. McWilliam, about not referring to matters that are before the Appellate Committee of the other place, and I do not intend to do so. However, European Court of Human Rights has played an important part in this area of legislation in recent years. Most recently, the incorporation of the European convention on human rights into United Kingdom law resulted in the Government introducing in 1999 the Bill that became the Armed Forces Discipline Act 2000.

We have three major concerns. First, it appears to be a relentless obsession of the European Court of Human Rights to interfere in the operation of our armed forces. Secondly, we remain concerned about the effect of the changes on the integrity of the chain of command. Thirdly, there appears to be a drive to replicate civilian procedures in military life.

Taking the last point first, it remains our fundamental belief that our armed forces need to be different. Some are concerned that a court martial is becoming more like an industrial tribunal and that civilian advocates are less respectful of the authority of senior officers. To give an example of what is happening, Army and Royal Air Force judge advocates no longer wear uniform. Only those of the Royal Navy continue to do so. Officers are not allowed to wear swords, nor are medals or Sam Brownes to be worn. As one civilian advocate put it to me,

    ''Recently, an officer on a charge was not allowed to wear his five medals or his Sam Browne—it was a nonsense; he was only allowed to wear half his uniform.''

Those might appear to be minor matters, but they go to the heart of the issue and reinforce the arguments of those who are concerned that there is an attempt to civilianise what should properly be military tribunals.

I understand that no one serving in the same division as someone on a charge can serve on that person's court martial. As a result, a vast amount of money is being spent on transporting people across the country. I was told this morning that a court martial held in Aldershot involved importing a board from Germany and that next week a board transported from the United Kingdom will be convened in Germany. That is a ridiculous waste of Ministry of Defence resources, particularly at a time when we all—every Member of Parliament and every service man in the country—know that our defence resources are stretched at every single point.

More importantly, that arrangement effectively questions the integrity of those officers and warrant

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officers serving on courts martial. There is clearly an implication that somebody serving on a court martial cannot be trusted to act impartially in respect of a person serving in the same division. What are we doing questioning the integrity of officers and warrant officers in that ludicrous manner?

We must address those issues. I shall be tabling a parliamentary question about how much money is being spent on transporting people all over the country in order to ensure that there is a degree of impartiality which it is not necessary to import into such proceedings. I do not expect the Minister to have the answer here today, so he need not worry, but he ought to know it, as should we.

Given the unique nature of the military lifestyle and the unique circumstances of military service, it is imperative that military courts should preserve their military ethos—something of which the Minister spoke a few moments ago—and that some of the military procedures that have been abandoned should be restored. There are those whose agenda it is to undermine that military ethos. For them, the European Court of Human Rights provides a convenient battering ram. That court, set up in the aftermath of the holocaust to reduce the prospect of any European country falling again into the hands of a totalitarian despot, is being used to justify setting aside the laws and practices of nations responsible for ridding Europe of the scourge of fascism.

The February decision in the Morris case resulted in the suspension of courts martial in the Army and the Royal Navy. I gather that they are back in operation but with a backlog, which the Minister hopes to have cleared by the end of the month. Yet again, the Government feel obliged to return to Parliament for yet another change in the law to appease the European Court—


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