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Earl Howe: I am grateful to the noble Lord. I shall gladly say a few words by way of explanation of the clause. The Government believe that the change

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represented by Clause 11 is a small but important step in the direction of ensuring that, where appropriate, service police have powers corresponding to those of their civilian counterparts. At the moment the service police essentially have powers only to take fingerprints without consent in connection with the investigation of an offence, or if persons are held in arrest under the service discipline Acts; that is to say, before a trial. The powers are similar to those of the civilian police. However, it is not always necessary to take fingerprints before a trial. On the other hand, fingerprints may be needed, or may be useful later after a conviction, for recording purposes. Service police, unlike their civilian counterparts, do not have the powers to take such prints without consent. Clause 11 provides the power for them to do so.

The recording I am talking about is on a similar basis to the recording of convictions by the civilian courts. Certain offences dealt with in service proceedings are reported to the national identification service in the interests of comprehensive criminal record. The NIS will only accept records of offences where these are accompanied by a set of fingerprints. As I have sought to explain, the clause will enable us to take such fingerprints. Without the clause it would be necessary to take fingerprints pre-conviction on a fairly indiscriminate basis just in case they might be needed afterwards for the NIS record. We would regard that as wasteful, particularly as we would be obliged to destroy any such prints in the event of an acquittal. The clause will ensure that fingerprints are taken only where absolutely necessary. It puts service procedures on the same footing as civilian ones. It is a sensible measure which deserves the support of the Committee.

The noble Lord asked about the part of the clause referring to the powers lapsing after three months. Of course we would not wait for the appeal process to run its course before taking prints, and for that reason the lapsing of the power would not pose any practical problems. The wording is intended to ensure that it is a power that is properly used in connection with the offence for which the person has been convicted.

Lord Williams of Mostyn: I am most grateful. The definition matter can wait; I criticise myself for what is a nitpicking question. I am obliged to the noble Earl the Minister for his explanation. I find it entirely satisfactory that there should be a correspondence between the civil and military regimes in terms of fingerprints.

I should like to raise one matter, however. If, as the noble Earl, said, the fingerprint-taking process would not await an appeal, what happens if an appeal is successful. Are the fingerprints then destroyed?

Earl Howe: Yes.

Lord Williams of Mostyn: I am most grateful. Upon that basis--and I reiterate my genuine gratitude to the Minister for dealing with these matters so helpfully--I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

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5.15 p.m.

Clause 11 agreed to.

Clause 12 agreed to.

On Question, Whether Clause 13 shall stand part of the Bill?

Lord Williams of Mostyn: The clause raises the same question as I raised previously, and I would like an explanation.

Earl Howe: The Rehabilitation of Offenders Act 1974 already lists the service offences and punishments which determine when rehabilitation can apply. Paradoxically, offences and punishments less serious than those listed in the Act can never be rehabilitated. For example, offenders can be rehabilitated if their punishment is detention for three months or more, but offenders who receive lesser periods of detention may not be rehabilitated.

The clause is intended to end this anomaly and also to make sure that, in doing so, we do not create a further anomaly. This would be that one or two minor convictions could have the effect of significantly extending the period of rehabilitation of someone who had already been convicted of a more serious rehabilitable offence.

To remove this clause will perpetuate the present unfairness. I cannot believe that noble Lords would wish to do that and I hope that what I have said will have put the clause into context and reassure the noble Lord on any uncertainty that he may have had.

Lord Williams of Mostyn: Which it does. I am grateful.

Clause 13 agreed to.

Clause 14 agreed to.

On Question, Whether Clause 15 shall stand part of the Bill?

Lord Williams of Mostyn: I raise the same matter in relation to this clause.

Earl Howe: Clause 15 is part of the package of reforms to post-court martial procedures. As I know the noble Lord, Lord Williams, realises, it is closely linked with certain other clauses, particularly Clause 16.

At present, court martial findings in the Army and Royal Air Force are subject to confirmation or revision by the confirming officer. Clause 15 ends this requirement so that findings will have immediate effect, as is the case in the Royal Navy already, where it works perfectly satisfactorily.

Imitation of the Royal Navy apart, there are two main reasons for abolition of the confirmation process. The first is that confirmation has generally been the responsibility of the convening officer. As the Committee will be aware, the role of the convening officer is itself being abolished as part of the wider court martial reforms included in the Bill, with the purpose of reducing the potential for the chain of command to exercise undue influence over court martial proceedings.

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Secondly, the abolition of confirmation will enable us to focus internal review of court martial findings and sentences on the authoritative single stage review proposed in Clause 16 and Schedule 5. The present arrangements requiring confirmation and allowing multi-level reviews of court martial findings are complicated and they are cumbersome as well. The new procedure should be capable of being more readily understood by everybody. I hope the Committee will endorse it.

Lord Williams of Mostyn: Again I am grateful. It seems to me that the Minister has in fact dealt with the identical question that I would have put on Clause 16. I shall not oppose the Question that Clause 15 stand part of the Bill.

Clause 15 agreed to.

Clause 16 agreed to.

Clause 17 [Appeals against sentence]:

On Question, Whether Clause 17 shall stand part of the Bill?

Lord Williams of Mostyn: I wonder if I might ask the Minister for similar assistance. As I understand it, Clause 17 is intended to give a further power; namely, the power to reconsider the sentence rather than simply to reconsider the conviction. If that is the thrust of Clause 17, as I believe it to be, then we welcome that.

Earl Howe: I am glad to have this opportunity to say a few words in explanation of Clause 17. It represents a major and positive change in extending the right of appeal for servicemen and women. As the Committee may be aware, the Courts-Martial Appeal Court consists of senior civilian judges who might be judges in the civilian Court of Appeal. At present, it can deal with appeals from servicemen and women against court martial convictions, but not against their sentences. The clause will enable the court to hear appeals against a sentence also. The reason for this important change is simply that, having conducted a review of the matter, we concluded that the present block on appeals against sentence was becoming increasingly difficult to justify because it is an unnecessary limitation on the rights of servicemen and women. It is as straightforward as that, and I commend the change unreservedly to the Committee as one deserving their support.

Lord Williams of Mostyn: I am most obliged for that explanation. I know there has been quite a body of opinion within the armed services that they were perhaps subject to unfair treatment in the way that the Minister indicated, and that their rights in respect of sentencing might not have been equivalent had they been in civilian life at the time of their charge and trial.

I would like to reiterate our gratitude for the way in which the Minister approached these matters. They are not simple and I am bound to say that a great deal of thought has been put into these reforms, which I believe to be valid and sustainable reforms. I have now reached the end of my conscription in the army of my noble

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friend Lord Judd and I simply want to apply for my honourable discharge and to thank the Minister not least for the tone and courtesy of his replies.

Lord Mayhew: Perhaps I may add on behalf of my own party that we too very much welcome these reforms. We consider them, to use the best possible adjective, to be "liberal".

Lord Williams of Mostyn: I do not wish to intrude into private grief and therefore I shall not oppose the Question.

Clause 17 agreed to.

Clauses 18 to 20 agreed to.

Clause 21 [Sex discrimination: Great Britain]:

On Question, Whether Clause 21 shall stand part of the Bill?

Lord Judd: Before I speak in this clause stand part debate, perhaps I may say how glad I am to have had the co-operation and, indeed, the support and tuition of my noble friend Lord Williams. His discharge is exemplary--and on behalf of the Defence Council.

The issues raised in Clause 21 have implications for Clauses 22 to 27 and, if I may, with the leave of the Committee, I shall try to take a strategic look at them as a whole within the context of speaking on the clause-stand-part debate on Clause 21.

For reasons which I shall explain when we come to it, I do want to dwell on Clause 23, hence the specific amendment to that clause. By the convention of which we have been reminded this afternoon and which we are following, amendments or clause-stand-part debates are not taken to a vote in this Committee. Our discussions give us an opportunity to probe the Government's thinking and we hope where possible to win some concessions. The voting, if there is to be voting, will be at the Report stage. I am sure the noble Earl will be the first to recognise that there is a good deal of concern about the issues covered in this cluster of clauses dealing with tribunals. I therefore give notice that it is quite possible that noble Lords, including the Opposition, will want to return to these clauses when we reach Report stage with more specific amendments in the light of what the Minister has said today.

The Bill introduces a two-stage process for dealing with complaints in the realm of sex and race discrimination and for dealing with complaints in the realm of equal pay and employment rights. The principle is that, while members of the Armed Forces may present their cases to the appropriate tribunal, they may do so only if they have first made a complaint to an officer under the relevant service redress procedures and submitted that complaint to the Defence Council under those procedures and if the Defence Council has then made a determination in respect of the complaint. It is being indicated that a six-month time limit will apply for application to an industrial tribunal, and regulations are likely to specify the maximum time limit for a complaint under the internal redress procedures, which it seems will not be less than three months from the date of the incident.

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As recommended by the Select Committee in the other place, regulations are to specify the circumstances in which a complainant will be able to present his or her case to an industrial tribunal before the Defence Council has made a determination. Draft regulations have yet to become available and there is therefore at this stage considerable public interest about exactly what provisions will be made. It is anticipated that the scope to pursue a complaint under both procedures will not be wide.

The Bill proposes a diminution of rights under the Sex Discrimination Act, under which, as things stand, complaints may be made directly to an industrial tribunal. It would be helpful to hear from the noble Earl the evidence which led to this proposed change.

In 1995 the Government published a Green Paper on resolving employment rights disputes, Options for Reform. Following consultation on a range of possible reforms, the Government have rejected the proposal that all employees should be required to utilise an internal procedure before making application to an industrial tribunal.

It is only in the case of service personnel that the proposal is to apply. All other employees, including serving officers in the police and civilian employees working alongside service personnel, are to continue to be able to apply to an industrial tribunal without statutory pre-condition.

The Ministry of Defence argued to the Select Committee in the other place that,


    "service and employment in the Armed Forces is different from employment anywhere else because of the demands which can be made on people ... the requirement to obey orders, one cannot just walk off the job ... important for the individual service person, but also important for the chain of command. Because of the particular nature of the Armed Forces, the chain of command needs to be aware of things that may be going wrong in terms of discrimination or harassment and so on in order that it can put those things right as soon as possible because those things can have a debilitating effect on unit cohesion and therefore operational effectiveness ... It is particularly important to the command chain to get a feel for what is going on and what the Servicemen are thinking. Servicemen will be on duty 24 hours a day 7 days a week. Unlike other organisations, we have to have a coherence, a trust and loyalty up and down ... we cannot afford to let these things fester away inside a unit, we must deal with them ourselves".

Those representations must be taken very seriously. It would be inexcusable to dismiss them out of hand but the question remains as to how all this differs from other disciplined services such as the police, the fire service, or indeed, in at least some respects for example, the air crew in a civilian airliner or a ship's company at sea.

I strongly favour the principle that there should be internal appropriate procedures for handling complaints of the kind referred to in this and related clauses of the Bill. Such procedures do help organisations to learn from mistakes, to internalise the concerns and to take their responsibilities seriously. It is also true that most employees prefer to have their cases dealt with quickly and effectively internally, so long as they have confidence that the procedures are fair, just and appropriate and that there will not be victimisation as a result of bringing a complaint.

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The Government have indicated that they intend to require industrial tribunals to take into account whether applicants had sought to resolve their dispute internally before making their tribunal application. Surely if service personnel were given direct access to industrial tribunals, like all civilians, this requirement would serve as a strong incentive for complainants to pursue the, we hope, effective service redress procedure, since if they chose to apply directly to an industrial tribunal they would have to establish and defend their case for doing so.

Delay is itself a detriment to all parties. Industrial tribunals rely on oral evidence and the quality of that evidence deteriorates with time. Delay also increases stress for both the complainant and the others involved. It can seriously affect the working situation, a disturbing possibility in the armed services, as indeed the armed services made clear to the Select Committee in the other place and was obvious from my quotation.

In advocating the importance of the internal procedure, as I certainly do, it has to be recognised that there may be a deterrent in going to a tribunal, if unsatisfied internally, because of the anticipated distress of doing it all again. It is certainly the case that the internal procedure may well not be appropriate where discrimination is believed to operate indirectly or systematically throughout an organisation or part of an organisation.

It has also been argued that an internal procedure can have certain disadvantages. As I understand it, under the internal procedure complainants are normally dealt with in writing. Only the service authorities can require an oral hearing. The complainant is not entitled to do so. She or he may therefore be unable to cross-examine any witnesses, and those adjudicating are unable to measure the credibility of witnesses. To undergo the internal procedure may place a complainant at a potentially serious disadvantage in terms of a subsequent case before the tribunal. The service procedure is investigative: to inquire into the complaint and assess the evidence in support. If the complainant is dissatisfied with the outcome and proceeds to the tribunal, his whole case will be fully known to the service and he will not have equivalent knowledge of the case against him or her.

These are just some of the issues underlying Clause 21. While we most strongly favour the availability of an internal procedure, we are convinced that this should not be mandatory at the expense of the right of direct appeal to a tribunal. We believe the Government have so far failed to establish their case for such a provision. Indeed on sexual discrimination they are moving backwards and eroding a right which is already established. That is why we are compelled at this stage to oppose the Question that the clause stand part of the Bill.

5.30 p.m.

Earl Howe: Clause 21 continues servicemen and women's existing access to industrial tribunals in sex

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discrimination cases, but introduces a requirement for them first to use the service's internal redress of complaint procedures. As a corollary of this, the clause extends the three-month time limit for making complaints to industrial tribunals to six months in recognition of the requirement to use the internal procedures first.

The noble Lord, Lord Judd, spoke in terms of a diminution of the right of individuals brought about by this clause. I strongly take issue with that. Together with the clauses that follow, this clause is concerned with putting the arrangements for access to industrial tribunals by members of the Armed Forces on a consistent footing, whatever the statutory basis for the complaint.

At present cases of sex discrimination alone can be taken directly to industrial tribunals without use of internal redress procedures first. This direct access derived from the MoD's acceptance in 1991 that the EC Equal Treatment Directive applied, for most purposes, to service personnel.

The MoD's amendment to the Sex Discrimination Act 18 months ago brought the statute law up to date by removing from the Act the exemption for service personnel.

The powers that were used to implement EC legislation by amending the Sex Discrimination Act did not extend to making ancillary domestic changes, such as are being made in this Bill, regarding the use of internal redress procedures. However, it had always been the intention to include in the Armed Forces Bill a requirement to use the internal procedures first and to extend the time limit for submission of complaints to industrial tribunals to six months. The key point is that the requirement to use the internal redress system does not diminish the right to take a case to an industrial tribunal.

The services' redress of complaint procedure is a statutory right given to service personnel by Parliament to reflect their being in the position of having to obey orders. It is much valued by the services, particularly as they may not have their own trade union. There is no statutory equivalent for civilian employees. It is particularly important in the services, where men and women work in close-knit teams and operational effectiveness is vital, that there should be a system for reporting problems immediately.

I welcomed much of what the noble Lord said about the need to have an internal redress of grievance procedure. Indeed, I agreed with many of his observations. Unlike civilians and unlike, incidentally, the police or the fire service, a great many service men and women cannot go home at the end of the day. Service personnel are often available for duty or are in barracks for seven days a week and, particularly overseas, even leisure activities take place in the workplace.

In these circumstances, there may be no escape from the source of harassment or discrimination or whatever it happens to be. It is vital in these circumstances that members of the Armed Forces should have confidence in, and should use, the internal complaints system so

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that the chain of command is made aware of any problems as soon as possible and can deal with them. In other words, the internal procedure is a safety valve, providing an opportunity for quick solutions to a problem.

Use of the internal procedures will mean that there will be a short delay before referral to the industrial tribunal, but we feel that that is justified in view of the special conditions relating to service in the Armed Forces. Moreover, it may well help to minimise the number of cases referred to industrial tribunals. In any event, complaints which servicemen and women do wish to take to industrial tribunals will still be capable of being heard by the tribunal within a reasonable time.

As the noble Lord, Lord Judd, said, loyalty in the services works both upwards and downwards. It is an important factor in the safety and morale of personnel and therefore the effectiveness of combat units. Our internal procedures for dealing with complaints are a key ingredient in this framework of loyalty that I have mentioned. I suggest that we need to proceed with considerable caution before taking any steps which might lessen the effectiveness of those procedures.

I would argue that not to have the clause in the Bill as it is currently drafted would be incautious. It might fulfil an understandable desire to have uniformity in these matters across society as a whole, but I would suggest that, in this case, the achievement of that prize must take second place to preserving an important aspect of service life.

The noble Lord, Lord Judd, referred to oral hearings. Service personnel are encouraged to discuss their complaints orally initially, before submitting a formal written complaint, and there is no reason why that procedure should not continue. He also referred to cross-examination. The complainant, of course, will have copies of all documents put to the Defence Council.


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