Select Committee on Delegated Powers and Deregulation First Report



ANNEX 2

ARMED FORCES DISCIPLINE BILL [HL]

Memorandum by the Ministry of Defence

INTRODUCTION

1.  The Armed Forces Discipline Bill alters certain aspects of the system for administering discipline in the armed forces by way of amendments to the Army Act 1955, the Air Force Act 1955 ("the 1955 Acts") and the Naval Discipline Act 1957 ("the 1957 Act"), which are described together as the Service discipline Acts. The Bill introduces a limitation on the powers of Service authorities to hold a suspect or an accused in custody by requiring the authority of an order made by an independent judicial officer. It amends the provisions in the Army and Air Force Acts 1955 relating to election for court-martial trial by ensuring that the right to elect court-martial trial is given before any proceedings on summary dealing take place. The Bill also establishes an appeals procedure for those whose cases have been dealt with summarily.

2.  The system for administering discipline in the armed forces is kept under review, with the principal vehicle for any legislative changes that may be necessary being the five-yearly Armed Forces Acts. The Armed Forces Act 1996 made substantial changes, reinforcing the independence of courts-martial to reflect the European Convention on Human Rights. The 1996 Act also extended the right to choose trial by court-martial. The Human Rights Act 1998 incorporates certain provisions of the European Convention into domestic law. The main provisions of the Act are expected to come into effect on 2 October 2000. The Ministry of Defence has used this as a framework for a further review of the Services' discipline system. The proposals in this Bill result from that review. They address areas of the discipline system where there are concerns that the system may not be compliant with the Convention and in particular Articles 5 and 6 of the Convention.

3.  There are a number of delegated powers in the Bill, for a variety of purposes. The areas where the delegated powers are most significant are in prescribing the rules with respect to custody hearings before a judicial officer; and in prescribing the rules which regulate the practice and procedure of the summary appeal court. The Bill also contains the power to make an order prescribing the oaths to be administered to members of the summary appeal court; and the power by regulations to modify the provisions relating to the review and authorisation of a suspect's custody prior to being charged, in those cases where the person is delivered into service custody by the civil police. The Bill extends the current powers to make Defence Council regulations with respect to the investigation and summary dealing of charges by commanding officers and appropriate superior authority, and it also extends the current powers to make rules with respect to the prosecution of court-martial offences. The Bill provides for two different forms of subordinate legislation: order, rules or regulations that are statutory instruments and regulations that are not. This memorandum explains the extent to which, if at all, they are subject to parliamentary control.

STATUTORY INSTRUMENTS (Order, Rules and Regulations)

4.  Clause 1 inserts new provisions into each of the Service discipline Acts limiting the powers of the Services to authorise the holding of suspects in custody without charge. These provisions are contained in sections 75 to 75C of the 1955 Acts and sections 47A to 47D of the 1957 Act. Clause 1 also inserts sections 75D of the 1955 Acts and 47E of the 1957 Act, both of which provide for sections 75 to 75C and 47A to 47D also to apply to service personnel delivered into service custody by the civil police.

5.  Sections 75D(1) and 47E(1) enable the Secretary of State to make regulations modifying the application of sections 75 to 75C of the 1955 Acts and sections 47A to 47D of the 1957 Act to persons delivered into service custody by the civil police. It is necessary to include this power because the time limits imposed on service authorities under sections 75 to 75C and 47A to 47D will not necessarily work in the case of a person arrested by the civil police, or giving himself up, owing to the period that may have elapsed before he is delivered into service custody. Since there will be a wide variety of circumstances in which persons may be arrested by the civil police and delivered into service custody, it is thought appropriate to make the necessary modifications in subordinate legislation. Regulations under section 75D(1) of the 1955 Acts and section 47E(1) of the 1957 Act are to be made by statutory instrument subject to the negative resolution procedure.

6.  Clause 8 inserts a new section 75M into the 1955 Acts and a new section 47N into the 1957 Act. These sections enable the Secretary of State to make rules about custody proceedings of three kinds. The first is an application by a commanding officer to a judicial officer to make an order authorising the keeping of a person arrested under section 74 of the 1955 Acts or section 45 of the 1957 Act in Service custody (an application under the new section 75C of the 1955 Acts and the new section 47D of the 1957 Act). The second is the bringing before a judicial officer of a person who is kept in Service custody after being charged (the new section 75F(1) of the 1955 Acts and the new section 47G(1) of the 1957 Act). The third is the review of an order made by a judicial officer under section 75F(2) of the 1955 Acts and section 47G(2) of the 1957 Act to authorise the keeping of the accused in Service custody (the new section 75G(1) of the 1955 Acts and section 47H(1) of the 1957 Act). Rules about proceedings on a review will also govern proceedings where the review is by a court-martial or judge advocate under the sections inserted by clause 5, or where a person is arrested under the sections inserted by clause 6.

7.  Rules under the new section 75M of the 1955 Acts and section 47N of the 1957 Act will regulate, amongst other things, the arrangements preliminary to the proceedings, the representation of the person to whom the proceedings relate, procuring the attendance of witnesses and the appointment of persons to discharge administrative functions under the rules. The rules will also make provision as to the admissibility of evidence at custody hearings and as to the immunities and privileges of witnesses. Given the very detailed nature of the provisions that will be required to be included in the rules, it is considered appropriate that they should be made by subordinate legislation. Rules made under section 75M or 47N will be made by statutory instrument, subject to the negative resolution procedure.

8.  Clause 22 inserts a new section 83ZJ into the 1955 Acts and a new section 52FP into the 1957 Act. These sections enable the Secretary of State to make rules for the purpose of regulating the practice and procedure to be followed in the summary appeal court. Rules under section 83ZJ of the 1955 Acts and section 52FP of the 1957 Act will regulate, amongst other things, the practice and procedure of the court in exercising its functions preliminary to or incidental to the hearing of appeals, the circumstances in which the jurisdiction of the court may be exercised by a judge advocate sitting alone, and the circumstances in which an uncontested appeal will be determined without a hearing. The rules may make provision as to the admissibility of evidence, the procuring of the attendance witnesses, the recording of proceedings and the making of copies of such records.

9.  Given the very detailed nature of the Rules that will be required, and the fact that they are substantially procedural, it is considered appropriate that they should be made by subordinate legislation. This also reflects the position for courts-martial where the rules governing the practice and procedure of such courts are contained in subordinate legislation made under section 103 of the 1955 Acts and section 58 of the 1957 Act. Rules under section 83ZJ of the 1955 Acts and section 52FP of the 1957 Act are to be made by statutory instrument subject to the negative resolution procedure. Again, this reflects the requirements for courts-martial under section 103 of the 1955 Acts and section 58 of the 1957 Act.

10.  Certain other provisions inserted by the Bill refer to rules made under the new sections 83ZJ of the 1955 Acts and section 52FP of the 1957 Act. These are as follows:

    (1) Clause 14 inserts a new section 83ZA into the 1955 Acts and a new section 52FF into the 1957 Act. The new sections specify the composition of the summary appeal court and refer to the qualifications needed for membership of the court. Provision is made for the appointment by the Defence Council of a court administration officer, who is to determine when and where the court sits. Section 83ZA(6) of the 1955 Acts and section 52FF(6) of the 1957 Act extend the scope of the rules that may be made under the new section 83ZJ or the new section 52FP by providing that the court administration officer is to perform such other functions as may be prescribed by rules under that section.

    (2) Clause 16 inserts a new section 83ZC into the 1955 Acts and a new section 52FH into the 1957 Act. The purpose of these sections is to permit, with exceptions, any officer who has held a commission in the Services for a total of two years or more, to sit as a member of the summary appeal court. The new section 83ZC(2) of the 1955 Acts and section 52FH(2) of the 1957 Act enable rules under section 83ZJ or 52FP to specify circumstances in which officers who do not meet the qualifying criteria are to be allowed to sit as members of the summary appeal court.

    (3) Clause 19 inserts a new section 83ZF into the 1955 Acts and a new section 52FL into the 1957 Act. These new sections describe the form of hearing that is to take place depending upon the type of appeal that has been brought. Section 83ZF(3) of the 1955 Acts and section 52FL(3) of the 1957 Act provide that, except in such cases as may be prescribed by rules under section 83ZJ or 52FP, appeals are to be heard in open court.

11.  Clause 23 inserts a new section 83ZK into the 1955 Acts and section 52FQ into the 1957 Act. These sections require every member of the court to swear an oath prior to sitting as a member of the court. The new sections provide for an order to be made by statutory instrument identifying the person who will administer the oath and prescribing the form of the oath and the manner in which it is to be administered. An order made under sections 83ZK of the 1955 Acts or section 52FQ of the 1957 Act will be subject to the negative resolution procedure. The requirement for provisions relating to the administration of oaths to be contained in a statutory instrument subject to the negative resolution procedure reflects the position for courts-martial under section 93 of the 1955 Acts and section 60 of the 1957 Act.

12.  Clause 28(2) provides for the provisions of the Bill, except clauses 26 and 28 which come into force on Royal Assent, to come into force on such day as the Secretary of State may be order made by statutory instrument appoint. An order may contain transitional provisions and savings (clause 28(3)(b)).

13.  Paragraphs 5 and 6 of Schedule 2 amend section 103 of the 1955 Acts and section 58 of the 1957 Act so as to enable rules under those sections to make specific provision as to the application of sections 83B and 83BB of the 1955 Acts or sections 52I and 52II of the 1957 Act in relation to cases where an election for court-martial trial relates to two or more charges. Rules made under section 103 of the 1955 Acts and section 58 of the 1957 Act are made by statutory instrument subject to the negative resolution procedure.

REGULATIONS NOT MADE BY STATUTORY INSTRUMENT

14.  None of the following regulations are subject to any form of Parliamentary procedure.

15.  Clause 1 inserts section 75(4) into the 1955 Acts and section 47A(4) into the 1957 Act. These subsections define what is meant by the reference to a person being charged for the purposes of the new provisions on custody. For these purposes, a person is charged when he is informed in accordance with regulations of the Defence Council that a charge is to be reported to his commanding officer under (as the case may be) section 76(1) of the 1955 Acts or section 52B(1) of the 1957 Act. Regulations under section 75(4) and section 47A(4) are not required to be made by statutory instrument. This is because the provisions of the regulations do not contain provisions affecting the substantive rights of an accused, but merely prescribe the procedure to be carried out in connection with the reporting of a charge.

16.  Clause 1 also inserts section 75E(1)(a) to (c) into the 1955 Acts and section 47F(1)(a) to (c) into the 1957 Act. These new subsections permit the Defence Council to make regulations in three areas: first, to make regulations allowing the functions of the commanding officer, in relation to custody without charge, to be delegated; second, to make regulations dealing with the circumstances in which a person in custody without charge is informed of any matter or given a chance to make representations about any matter; and, third, to make regulations providing for the keeping of written records relating to the custody itself.

17.  Regulations under section 75E(1)(a) to (c) of the 1955 Acts and section 47F(1)(a) to (c) are not required to be made by statutory instrument. The provision they will contain needs to be sufficiently flexible to reflect operational requirements and the exigencies of Service life. They are to be reproduced in Service manuals and will be available to any person kept in Service custody and any representative appointed by him.

18.  Paragraph 2 of Schedule 1 amends section 82(1) of the 1955 Acts and paragraph 8(3) of Schedule 1 amends section 52E(2)(a) of the 1957 Act. Both amendments relate to the functions of the commanding officer under the new provisions about custody without charge. Section 82(1) of the 1955 Acts provides for the officer who is to be the person's commanding officer to be determined by or under the regulations of the Defence Council. In the 1957 Act section 52E(1) defines the commanding officer but there is power under section 52E(2)(a) for regulations of the Defence Council to make provisions enabling the powers of the commanding officer to be exercised by other persons. Under both the 1955 and 1957 Acts the power for the Defence Council to make regulations currently enables provisions to be made only about the commanding officer of a person charged with an offence. The amendments in paragraphs 2 and 8(3) of Schedule 1 extend this power to enable provisions to be made about the commanding officer of a person in custody without charge. Regulations under section 82(1) of the 1955 Acts and section 52E(2)(a) of the 1957 Act are not made by statutory instrument and are not subject the Parliamentary scrutiny.

19.  Paragraphs 4 and 5 of Schedule 3 amend section 83 of the 1955 Acts and section 52F of the 1957 Act to include a specific power to make regulations with respect to the procedure for making and withdrawing elections under the new section 118ZA(2) of the 1955 Acts and under the new section 85A(2) of the 1957 Act. Regulations made under section 83 of the 1955 Acts and section 52F of the 1957 Act are made by the Defence Council, are not made by statutory instrument and are not subject to Parliamentary scrutiny.

November 1999


 
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