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 ECHRcompliant 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
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
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.