Examination of Witnesses (Questions 380
THURSDAY 25 JANUARY 2001
380. Discharged, not necessarily tested.
(Brigadier Cottam) From the point of view of the Army
it is worth bearing in mind that the tests are applied by the
chain of command, we do not impose on the chain of command who
should be tested and where, and, therefore, it is very much driven
as a matter of leadership and example within the chain of command
and we arrive at this relatively steady state of positive disclosure
as a result of the testing and of discharge.
Chairman: Thank you very much indeed,
that is very helpful. Mr Randall, would you care to come back
381. If we take alcohol and we take an incident
involving a motor vehicle, the testing is not for the level of
alcohol it is just for the presence of alcohol, is that correct?
(Mr Miller) It would be necessary to establish the
level of alcohol in order to make the judgment as to whether alcohol
was likely to have impaired the judgment.
382. Would that level be the same as that under
civilian law, the same thing as if you are driving a car and you
are pulled over and breathalysed, you are either above or below?
(Mr Miller) We are not talking about discipline in
this so in that sense there is not a hard line after which you
get the book thrown at you but, nevertheless, in practical terms
it is likely that we would use that as a bench mark.
383. So who would make the decision as to whether
alcohol was a contributory factor or not?
(Mr Miller) That would be an issue for the Board of
Inquiry in the light of the results of the test.
(Air Commodore Collier) It would be for the inquiry
to take evidence as to what implications there might have been
for that level of alcohol found in a person who may or may not
have contributed to the cause of the incident or accident.
384. Rather than just finding whether alcohol
is present, "I smell alcohol on your breath, end of story",
there would be a scientific level?
(Air Commodore Collier) As relevant evidence for the
inquiry to take into account with relevant expert evidence also
(Mr Miller) At the moment the best we have is the
smell of alcohol on the individual's breath, which is not adequate.
385. Presumably in all these things there would
be more of a gap between testing? I appreciate this is not the
same thing as with the breathalyser because that is on the spot,
but there is a process that you would have to go through and from
what I understand from Mr Keetch, I am not an expert on these
things, the cannabis level would be traceable for some time whereas
alcohol goes down over a period.
(Mr Miller) Yes. Clearly the evidence that the Board
of Inquiry would consider would include the time that elapsed
between the incident and the test.
386. I think there is a clear contradiction
emerging from the testimony we are receiving on this particular
Clause. Mr Miller said that the results of such tests related
to particular incidents, as provided for here, would not be used
for disciplinary purposes and Brigadier Cottam said this is a
matter of health and safety and not discipline. We have just heard
how if somebody shows up positive on these tests they would be
dismissed from the Services which means it is being used for disciplinary
purposes and I think we ought to be quite clear which it is.
(Mr Miller) I am sorry, what I intended to say was
that they would be discharged and that is an administrative discharge.
That is exactly the same regime as emerges from the random drugs
testing. It is discharge, it is not disciplinary dismissal. The
point may be a fine one but, nevertheless, it is the legal position.
387. They are the same. The result is the individual's
Service career comes to an end, that is the important thing. We
are simply, if I may say so, playing with words here. I am not
against introducing these tests, let us be quite clear about it,
but it would have very clear direct disciplinary implications
for anybody involved in an incident if they showed up positive
on the test.
(Mr Miller) I am sorry, but discharge as a result
of a finding of drugs is not a disciplinary issue. It is still
discharge, I fully accept, and the effect of this clearly is to
probably marginally increase the risk of someone who has been
taking drugs being detected.
Mr Davies: It is simply a disciplinary
issue. A disciplinary issue is an issue involving punishment and
the ultimate punishment in the Services is to be dismissed from
the Services and this is a disciplinary matter. This is a test,
the results of which will have disciplinary consequences. I think
we are quite clear about that now. I think it is, therefore, very
deceptive to start describing this purely as a health and safety
measure or one having no disciplinary implications because it
clearly does have disciplinary implications.
Chairman: I think we are in danger of
getting into a court room discussion between lawyers here. My
understanding is that it is made clear to anyone joining or signing
up for the Armed Forces that any use of illegal drugs is a matter
that is not permitted and the consequence will be the administrative
discharge from the Armed Services.
Mr Davies: And anybody taking part in
these tests knows if they show up positive they will be dismissed.
Mr Key: Discharged.
Dr Moonie: I think you have to use the
word "may" and not "will".
Chairman: I think the points have been
Mr Davies: This is an important matter
because the Minister says
Dr Moonie: It is at the discretion, depending
on the rank of the member of the forces concerned, whether discharge
is carried out or not. I think it is important to make that clear.
Mr Davies: The results are exactly the
same as failing a random test.
Dr Moonie: Absolutely.
Mr Davies: The disciplinary consequences
are the same.
Dr Moonie: Yes. All I am saying is it
is not "will" be discharged, it is "may" be
Mr Davies: And that applies equally to
random tests. That was the point I wanted to establish. They both
have the same disciplinary consequences, the random test or the
incident related test that we are dealing with here.
388. You have made your point clear, Mr Davies.
Can I suggest we move on to Clause 35.
(Mr Miller) This Clause is related to Clause 34 and
sets out definitions such as who is subject to testing under the
powers of that Clause, it provides for breath or urine test for
alcohol and for a urine test for drugs. It allows us to provide
by order that other oral or non-invasive samples, such as perspiration,
may be taken for the purpose of testing. This allows for the possibility
that a new workable test based, for example, on saliva may become
389. Thank you. Any points or comments? No.
Can we move on to Clause 36 and miscellaneous amendments.
(Mr Miller) Clause 36, Chairman, introduces Schedule
7 which contains a number of minor amendments. There are a total
of 26 and while, on the one hand, I do not wish to waste the Committee's
time by going all the way through them, equally I do not wish
to leave myself open to the accusation that I am trying to slip
something through by not drawing attention to it. I think I am
in your hands as to whether you want me to go through all the
points in detail.
Chairman: I will ask Members of the Committee
if they wish to go through it in detail?
Mr Key: No.
Chairman: Thank you, Mr Key. We will
raise any particular areas of concern. Do you wish to start off,
Mr Key: I am grateful. Could we look
at the section dealing with the redress of complaints. I certainly
have a constant trickle of problems arising from the redress of
complaints and I would be grateful if you could start by explaining
how this Bill refers to the matter?
(Mr Miller) Can you give me the details of the reference?
Mr Key: It is in the notes provided at
paragraph 156. It refers to paragraphs 41 and 42.
390. Subsection (41) of the Schedule.
(Mr Miller) The point here is at the moment an individual
may seek redress against certain decisions arising from a court-martial.
391. Take your time, please.
(Mr Miller) I do beg your pardon, Mr Key, I have lost
392. It is on page 77 of the Bill at Schedule
7, paragraph 41 of Schedule 7.
(Mr Miller) I do beg your pardon, I have now found
my point. As I say, at the moment the Acts allow a person subject
to Service law to seek redress about any matter relating to its
Service. This currently includes the right to complain in respect
of decisions of judicial officers and judge-advocates who are
exercising powers in relation to custody or where hearing cases
before the Summary Appeal Court. As the legislation stands, the
right to redress would also apply to the new procedures for search
warrants provided in this Bill. We think it inappropriate for
the chain of command to be able to review judicial decisions,
which is what redress effectively amounts to, so these amendments
exclude such decisions from the redress provisions. A further
amendment to the redress procedure will give officers and other
ranks attached to another Service the right to seek redress under
the Service Discipline Acts of the host Service. This is a complication
that arises where you have servicemen of one Service serving in
the unit of another. There has been some discussion as to how
appropriate redress should be provided in these circumstances.
It may be more relevant for them to seek redress under the provisions
of the Service to whom they are attached and we wish to open up
that possibility. I suppose I should, for completeness, add the
point that the reason that this section refers only to the Army
and Air Force Acts is because the Navy Discipline Act does not
contain equivalent provisions.
393. Has it been necessary to amend the procedure
for redress of complaints as a consequence of the passing of the
Human Rights Act? Is that why this is before us now?
(Mr Miller) No, that is not why this is before you
now. I am sorry, in answer to the wider question I was running
quickly through my mind the changes that we have made. Yes, in
recent years there have been some changes to the redress procedure
to reflect the Human Rights Act. We have brought in a measure
of disclosure, for example.
394. I think at a practical level it is important
to see if this particular measure as proposed is going to improve
the situation, improve the lot of the serviceman or woman who
feels aggrieved by the process. I know it is hugely complex, I
have had some very complex cases in my own constituency which
have run the whole course. There is a feeling amongst Service
personnel that if they get as far as needing to seek redress of
complaint, the first complaint is always that it takes so long
for it to happen, and we are talking years before the Defence
Council will make a decision on an individual case. I just wonder
if there is going to be any improvement in that as a result of
(Mr Miller) As a result of this I think there would
be no impact at all on that. We have been attempting to speed
up the procedure for some time with, I am bound to confess, relatively
little effect to date. It is something we will continue to work
395. I wonder if any of the servicemen present
would wish to comment on their individual Services and how it
(Commodore Bryant) If I may, Chairman, most complaints
are, in fact, dealt with either at unit or immediately above unit
level. We are only talking about those few that do get through
to the Navy Board or the Defence Council but I fear those do take
an unconscionably long time.
(Air Commodore Collier) The main provision here is
in respect of judicial officers because there is a proper judicial
process where an individual feels that a wrong decision has been
made, namely the legal appeals procedure, and I think that is
the prime purpose of this, to make it quite clear that that is
the correct and only avenue for querying the decision of a judicial
officer and not the redress agreements which would then invite
commanding officers to try and comment upon the decisions of the
judicial officer. That is the main purpose here. The secondary
point is to make it much clearer to an individual in those relatively
rare but increasingly possible situations where they are working
with another Service that their rights to redress can be channelled
through the most efficient and appropriate way. That is also precisely
to make sure that in those relatively complex cases there is no
need for delay because of working through one Service's channels
where people who actually have the power to grant the redress
that has been asked for are in another Service. We too have the
circumstance where the vast majority of redresses are dealt with
relatively quickly. This is where the individual is not satisfied
with the initial results and those, of course, will be the ones
with which you are more familiar because your constituents will
bring them to you. They are inevitably complex. The provisions
that we have had to make, in fairness to both the individuals
who make the complaint and those who are complained against, that
they should have full disclosure of all the advice that is given
to the deciding officers necessarily for the protection of those
individuals built in quite a complicated procedure which does
take a long time. We do strive to progress cases as quickly as
possible and remind all deciding officers that they must do so
as quickly as they can in fairness to the individuals, but we
do have to comply with those disclosure requirements that do take
(Brigadier Cottam) I concur with what has just been
said. From the Army's point of view we are hugely conscious of
the volumes of courts-martial and, to a lesser extent, of redress
that we have to deal with. We have established an officer's standards
of casework managed by a one star officer specifically to try
and drive down delay in both those areas. We are addressing the
issue. We hope the solution that we are putting in place will
achieve that for just the sorts of reasons that led to us answering
this question today.
396. I wonder if it would be possible for us
to have a note, it is not fair to expect you to know this now,
on the number of applications for redress of complaint in each
of the three Services and how far they get? How many get to the
Defence Council and ultimately how many get to Her Majesty The
(Mr Miller) We can certainly put a note together which
will provide that information.
Chairman: Thank you very much, we would
397. Can we look in the Explanatory Notes at
165, referring to paragraphs 57 and 58, children in respect of
whom protective orders may be made. As far as I can see that is
just extending the powers for not just Service children but they
may be people who are visiting. I wonder if you could let me know
who would be making these protection orders and how that works?
(Mr Miller) It is, indeed, extending it, as you have
(Air Commodore Collier) By and large it will be commanding
officers who have these powers in overseas locations. It is laid
down in regulations and the statute, I believe, who should make
the decision of a protection order and who can apply for a protection
398. If it will be a protection order in the
case of somebody visiting, a protection order from whom? Who they
were staying with or their parents at home if they have come on
holiday to play with their chums and suddenly the parents, the
Service people, are very worried because they have seen various
things going on? Would it be in respect of what was going on back
home or would it be what is happening abroad, if you like?
(Air Commodore Collier) These cases are so rare that
I cannot answer that question from my personal experience. My
understanding is that the protection order could be applied in
a number of different circumstances and it would be clear in the
protection order what it was.
(Mr Miller) Clearly the expectation when this was
being drafted was that we were dealing with cases where immediate
protection would be needed which in those circumstances must amount
to either the family they are staying with or others in the area.
(Mr Morrison) Section 17 of the Armed Forces Act 1991,
which is the relevant section, does not say from whom the need
for protection arises. The key test is simply to consider whether
there is reasonable cause to suspect that the child is suffering,
or is likely to suffer, significant harm. It is not a question
of limiting it to the parents at home or parents with whom they
are staying. That general test has to be looked at by the officer
designated to take this decision.
399. Just to give you an example: say we have
got a child who is on holiday with chums, who is just about to
return back to the UK and obviously something is very wrong, the
child does not want to go back or whatever, and in the course
of conversation they find out that something is desperately wrong
with the home situation. What would happen then? Would it be that
the Service side would immediately put the protection order on
and then refer it to the social services back in the UK? What
would happen in those circumstances?
(Mr Miller) These are always difficult, of course,
because you are looking at judgments in the individual circumstances.
I would expect contact to be made with social services in the
child's home area and for them to be left to deal with it. It
is conceivable, I suppose, that the situation would be so urgent
that the only solution would be an order from the Service authorities
and clearly one would expect them to do so if that was necessary
to protect the child.
3 See Appendix 6. Back