Joint Committee on Human Rights Appendices to the Minutes of Evidence


Memorandum by the Ministry of Defence

  1.  The Ministry of Defence has welcomed the ability for the rights in the European Convention on Human Rights to be determined in our domestic courts. We are determined to ensure that our practices and procedures are compatible with the Convention, and that rights and responsibilities are clearly recognised and properly balanced.


  2.  At the time the Human Rights Act was introduced in Parliament, the Department established a Human Rights Group to oversee and monitor an audit of legislation, procedures and practices for computability with the European Convention on Human Rights. The Group consisted of representatives from key policy areas (eg Service and civilian personnel policy, security, Minister of Defence Police) and civilian and Service lawyers. The audit identified only a few areas where there was considered to be a significant risk of challenge of compliance with the Convention. Generally, practices and procedures are compliant, reflecting the influence of the Convention and the European Court of Human Rights' judgements over a good many years.


  3.  The audit confirmed the need to make changes to certain aspects of the Services' disciplinary procedures. These were introduced by the Armed Forces Discipline Act, which came into effect on 2 October 2000. The Disciple Act made decisions about pre-trail custody subject to independent judicial supervision to comply with Article 5 of the Convention. It also introduced a new right of appeal from summary disciplinary proceedings to an ECHR—compliant court. These changes fulfilled the objective of meeting concerns about computability with the Convention whilst preserving a system of Service discipline which is effective in operational circumstances.

  4.  Some further changes to Service procedures are proposed in the Armed Forces Bill in the current Parliamentary session. These concern the powers of the Service police in relation to search, entry and seizure during the course of the investigation of offences under the Service Discipline Acts. These powers need clarification because they are not defined in statute, but the opportunity has also been taken, in framing the proposals, to establish procedures which avoid the risk of a successful challenge on Convention grounds.

  5.  A statement of compatibility with the convention was made under section 19 of the Human Rights Act for both the Armed Forces Discipline Bill and the current Armed Forces Bill. No difficulties have been encountered.


  6.  Policy staff in key areas and legal staff have all had appropriate training, making use of both external and internal courses and seminars. They continue to take advantage of training opportunities as they arise. Extensive training of Commanding Officers and others in the new summary discipline procedures and arrangements for pre-trail custody was carried out by each of the single Services. This training was set in the wider context of the European Convention on Human Rights and the Human Rights Act.

  7.  In addition to training staff with responsibilities for implementing the Human Rights Act, some general information, to promote awareness, has been published in internal journals. Information is also available on the Department's internal website, which gives the address for the Home Office website. There is evidence, from queries on whether issues raised involve any human rights points, that awareness is widespread.


  8.  There are well established inter-Departmental arrangements, under the auspices of the Cabinet Office, for circulating information on cases before the European Court of Human Rights. This enables lawyers and administrators to keep up to date with developing case law and, in the light of that, to reconsider procedures and practices as appropriate. In addition, the Department has arrangements in place for promulgating advice provided by in-house lawyers on specific issues. This is to avoid the same question being asked repeatedly and it also has training value.


  9.  To date there have been no final judgements since 2 October 2000 in cases involving the Ministry of Defence or the Armed Forces where the proceedings rely on Convention rights. There are, however, several cases before the Employment Tribunal in which the application of Article 6(1) (the right to a fair and public hearing) to discharge from the Armed Forces has been raised. There is an ET case being brought in the Court of Session, on the issue of whether a person, discharged from the Service on the basis of homosexuality, is able to bring a claim for sex discrimination under the Sex Discrimination Act 1975 on the grounds that the Act should also encompass sexual orientation. Finally, an application for leave to appeal to the House of Lords has been made in relation to a Courts-Martial Appeals Court judgement that a conviction by court-martial was fair in conformity with common law and Article 6(1) of the Convention.


  10.  The Department made an early start to its preparations for implementation of the Human Rights Act and the need to take account of the European Convention on Human Rights in assessing policy and procedures is already well embedded. It is recognised that this awareness needs to be maintained to bring about a permanent change in the culture and the Department considers that suitable arrangements to this end are in place.

March 2001

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