The Select Committee on the Armed Forces Bill
has agreed to the following Special Report:
1. The disciplinary systems of the three Armed Services
are underpinned by the three Service Discipline Acts: the Army
Act 1955, the Air Force Act 1955 and the Naval Discipline Act
1957. The Bill of Rights states
That the raising or keeping
of a standing army within the kingdom in time of peace unless
it be with the consent of Parliament is against the law.
The necessary parliamentary authority to maintain
the Armed Forces in peacetime is given annually by the House agreeing
to Defence Votes A each spring. Prior to the passage of the present
Service Discipline Acts, their predecessor Acts (for the Army
and Air Force) also expired annually and had to be re-enacted
by Parliament each year. The current Acts, in deference to those
constitutional traditions, also last only for a year at a time,
but may be renewed each year, for a maximum of five years, by
Orders in Council. Before
the end of the fifth year, they must be renewed by primary legislationthe
quinquennial Armed Forces Billthe current one of which
we are now considering. It renews the Acts, which would otherwise
cease to have effect on 31 December this year, until the end of
2006. This quinquennial
Bill also provides an opportunity to make any necessary amendments
to the existing legislation. Since this quinquennial procedure
began in 1961, it has been the practice for the Bill to be committed
to a select committee after Second Reading, a practice which of
course predates the existence of a permanent Defence Committee
in the House's Standing Orders.
Committal of Bills to a select committee is procedurally unusual
these days. It enables a committee to combine the normal standing
committee process of formally considering a Bill clause by clause,
and amending it if it wishes, with a select committee's powers
to take evidence and to make visits, and then to report its findings
to the House and make recommendations.
2. We made some Amendments to the Bill.
These are set out in the Minutes of Proceedings and are incorporated
into the amended version of the Bill ordered by the House to be
printed on 13 March.
This Report explains why those Amendments were made, and discusses
other aspects of the Bill's provisions which merit the House's
3. We held nine sessions of oral evidence. In addition
to a wide range of Ministry of Defence witnesses, including the
Secretary of State for Defence and the Chief of the Defence Staff,
we took evidence from the two Associations representing Chief
Police Officers in the United Kingdom;
the Defence Police Federation; the National Union of Journalists;
Forces Law, a group of solicitors who frequently represent Service
personnel; and At Ease, a voluntary advice and counselling service
for Armed Forces personnel.
We have also received a substantial amount of written evidence,
which is published with this Report.
During the course of our work we visited the Military Corrective
Training Centre and the Colchester Garrison; HMS Invincible (off
the coast of Scotland); British forces deployed as part of the
Multinational Brigade in Kosovo; and RAF and British Army personnel
stationed in Cyprus.
We are grateful to all who have assisted us in our work, either
by submitting evidence or by contributing to our visits.
4. The House agreed, in an Amendment made to the
original motion to appoint the Committee that, on this occasion,
this Select Committee should have the power to appoint specialist
We have benefited considerably from the advice which Rear Admiral
Richard Cobbold, Director of the Royal United Services Institute,
has given us in this capacity.
Composition of the Committee
5. The composition of this Committee was the subject
of some criticism from colleagues during the Second Reading debate
on the Bill in that it did not follow the usual precedent of confining
membership of select committees largely to backbench Members.
It has been accepted practice in the past for a Defence Minister
and a front bench Opposition spokesman to be appointed to the
select committees on the quinquennial Armed Forces Bill, because
these committees have the power to amend the Bill, and it is therefore
felt necessary for a Minister to participate in the Committee's
proceedings. On this occasion, two Defence Ministers were appointed
to the Committee (Mr Spellar and Dr Moonie) and three Opposition
spokesmen (Mr Davies, Mr Keetch and Mr Key). The membership also
included a Government and an Opposition Whip (Mr Clelland and
Mr Randall) and two parliamentary private secretaries (Ms Squire,
who is PPS to the Minister of State, Department for Education
and Employment; and Mr Watts, who is PPS to the Minister of State
for the Armed Forces). There was also a departure from previous
practice in that, on this occasion, this Committee included no
members of the Defence Committee.
6. The controversy over the composition of the Committee
led to problems when we applied to the Liaison Committee for funding
for our proposed overseas visit. The Liaison Committee is comprised
of the chairmen of select committees and is responsible for the
general oversight of the work of select committees, including
authorising expenditure on overseas travel. The Liaison Committee's
deliberations are a private matter but we were given to understand
that the composition of this Committee was the reason for our
initial application for funding being only partially authorised,
although the application was subsequently approved in full when
it was resubmitted.
7. We hope this Report, and the evidence which is
published with it, demonstrate that we have approached our consideration
of this Bill with the same scrupulous and disinterested attitude
that was adopted by our predecessors in respect of previous Armed
Forces Bills. We do not believe that the composition of the Committee
has in any way compromised the way in which we have discharged
our duty to the House. However, we do believe that the lessons
of the controversy surrounding the appointment of the Committee
should be learned.
Consideration of future Armed Forces Bills
8. First, the procedures used for consideration of
the quinquennial Bills deserve reconsideration in the light of
changes in the parliamentary context since 1954. At that time,
the select committee system was considerably less developed and
less well-resourced than at present. There was no committee permanently
charged with oversight of the work of the MoD. Prior to the 1955
Acts, a select committee had been appointed each year to consider
draft proposals for amendment of the Acts along with their annual
renewal. When, after long deliberation, the Committee decided
to recommend the quinquennial system it commented
Your Committee decided ...
to recommend ... that it should be provided that each Act should
expire on a date not exceeding 12 months from the date on which
it should become effective, but should be renewable annually for
four further periods of 12 months by Resolution of both Houses
... In the fifth year, legislative action would be required to
continue each Act ... Your Committee decided to recommend ...
the committal of the Bills to a Select Committee immediately after
Second Reading ... it was felt that such periodic examination
in the less partisan atmosphere of a Select Committee was likely
to result in the legislation being kept more up to date and to
give less opportunity for criticism or amendment to a partisan
or obstructive nature than if the Bill were to proceed straight
to a Committee of the whole House ...
These arguments continue to carry weight. But the
development of the departmentally-related select committees, and
the practice of referring draft Bills to select committees for
consideration, may suggest the time has come to reconsider this
50 year-old practice. The introduction of a 'tri-Service' Discipline
Act (which we discuss below) would be an appropriate point at
which to review the traditional procedures for parliamentary scrutiny
of Armed Forces Bills. We recommend that the Select Committee
on the tri-Service Bill (whether it is the Defence Committee or
an ad hoc committee) should examine the procedures for
renewing the Act and for scrutinising it, and recommend how it
should be handled.
9. We offer some thoughts for consideration by the
House on some future occasion. There may be merit in any future
quinquennial Bills being referred in draft to the Defence Committee,
which that Committee itself suggested in its Annual Report.
The Liaison Committee agree that it should be the Defence Committee
which looks at future Armed Forces Bills and that there is merit
in using the draft Bill procedure.
If it is decided, however, that the Bills should continue to be
committed to an ad hoc committee, then the House should
consider the composition of that committee carefully. Parliamentary
scrutiny may not be seen to have been done if such committees
consist largely of those who must conform to the convention of
collective responsibility in respect of the policies of their
parties, whether in or out of government at the time.
10. This select committee, like its predecessors
on the Armed Forces Bill, has the function of both a standing
and a select committee. Ideally, it would be possible to combine
the best elements of both types of committee, but the reality
has been more limiting. When standing committees consider legislation,
the meetings are held in public and Ministers are able to have
their departmental officials present to provide advice on the
detailed content of the proposed legislation. Any statement Ministers
make is recorded and published and can subsequently be referred
to as an aid to interpretation of the Acts. We, on the other hand,
have had to conform to the practice of select committees which
consider matters other than oral evidence in private. Our formal
consideration of the Bill therefore had to take place in a private
meeting: the Ministry of Defence officials, as Strangers (ie neither
Members nor House officials) could not be admitted; and no verbatim
record of the proceedings was kept. We believe it would assist
all members of a committee examining future Bills of this kind
if these matters were addressed.
11. Similarly, in line with select committee procedure,
minutes of evidence were not printed and published in time for
the next session of the Committee but were only available as draft
verbatim transcripts with a restricted circulation. This was an
unnecessary inconvenience which also inhibited the transparency
of the work of the Committee. It would assist future committees
of this type if, in advance of publication in their final form,
all minutes of evidence were made available in uncorrected form,
on the Internet, the day after they were taken, as is currently
the practice for oral evidence taken in select committees from
Scope of this Committee's work
12. Many of our predecessor Committees have used
the opportunity presented by consideration of the five-yearly
Armed Forces Bill to look more widely at matters affecting Service
personnel rather than limiting themselves strictly to the provisions
contained in the Bill itself.
We have adopted a more narrowly defined approach to our work,
for two reasons. First, in appointing the Committee on 9 January
2001, the House also agreed a programme motion requiring us to
report the Bill by 15 March. Although this would appear to have
given us less time to carry out our work than our recent predecessors,
we have been able to hold at least as many evidence sessions and
to conduct a similar number of visits.
13. The second reason we decided not to look more
widely at Armed Forces personnel matters was that, at the time
this Committee was appointed, our colleagues on the Defence Committee
were at the end of a wide-ranging inquiry into this subject. Their
oral evidence, taken between July and December 2000 from a large
number of interested organisations, was published and available
to us. The Chairman of the Defence Committee also gave us a private
briefing on the work which his Committee had undertaken in advance
of the publication of the Report on 23 February.
The Report provides a detailed and balanced assessment of many
of the issues confronting those responsible for personnel policy
in the MoD and the Armed Forces and we commend it.
14. We have considered two related matters: the legal
representation available to Service personnel; and the terms of
service of Armed Forces personnel under the age of 18 (see section
V on Other Issues). We also publish with this Report written evidence
from the Ministry of Defence following up the recommendations
and observations of the 1996 Committee.
15. One of the main concerns of our predecessors
in 1996 was racial discrimination in the Armed Forces.
This is discussed in the Defence Committee's report in some detail:
we were aware of their interest and agreed not to pursue it separately.
However, we received substantial written evidence from the Ministry
of Defence and from the Commission for Racial Equality, following
up issues raised in 1996, which is published with this Report.
II A SINGLE SERVICE DISCIPLINE ACT
16. Our predecessors in both 1991 and 1996 recommended
that each of the three Service Discipline Acts should be consolidated.
They regarded this process as desirable because of the number
of amendments which had been made to the Acts since they were
first passed in the 1950s, with sections inserted and repealed,
resulting in what our colleagues in 1991 described as 'frankly
a mess'. The 1996 Committee found it unacceptable that two years'
work had been carried out on consolidation by a senior draftsman
from Parliamentary Counsel but that the process had been left
uncompleted when that secondment to the Law Commission came to
an end. They recommended that the necessary time and resources
be made available to allow for consolidation before the next Armed
Forces Bill came before Parliament.
The Defence Committee has also, more recently, recommended that
the MoD address consolidation of Service law as a matter of urgency.
17. There is a separate, but associated, issue as
to whether it is still appropriate or necessary to have separate
Service Discipline Acts for the three Services when so much of
our Armed Forces' activity is in joint operations and exercises.
Such a reform would be likely to embrace a more root and branch
re-examination of the scope of military law and its relevance
to modern circumstances. The government's Strategic Defence Review,
published in July 1998, announced that there would be an 'examination
of the need for a single tri-Service Discipline Act'.
The Minister also told the House in the Second Reading debate
on this Bill that the intention is to replace the three separate
Acts with a single tri-Service Act, to be introduced as part of
the next five-yearly process, in the 2005-06 Session.
The Chief of the Defence Staff said
I think it is sensible for
us to look at a tri-service Act, but what I would also want to
do very carefully is to make sure that we did not lose the baby
with the bathwater, and that we recognise the tolerable variation
that needs to exist between the three Service environments.
A tri-Service Act would need to be sufficiently flexible
to deal with
... a person on board a submarine,
for example, which is employed for two months without any form
of communication, as opposed to a soldier in a garrison or an
airman on an airfieldyou need to recognise that there are
very different circumstances there.
The Secretary of State acknowledged that it would
be 'an enormous process' to draw up a single discipline Act which
reconciled the different cultures and traditions of the three
Services, but he believed it was 'common sense' to work towards
18. We pursued with witnesses the question of the
timescale for a tri-Service Act.
The Secretary of State's view was that, although it was a priority
for the MoD, it would take years rather than months to prepare
a Bill, because of the complexity of the issues and the legal
technicalities which it would need to address.
Mr Barry Miller, Director General, Service Personnel Policy, and
the official within the MoD responsible for such legislation,
told us that 'scoping' work is under way at present to decide
what a tri-Service Bill should contain.
There are currently only two MoD officials working on the proposed
Bill (one of whom was on sick leave at the time), although Mr
Miller assured us that this team would be significantly enhanced
later this year.
Mr Miller is working to the timetable set out by the Minister
for the introduction of such a Bill in five years' time; he said
that 'we are fitting what we do into the existing schedule' and
that the pace of work and level of resources would be determined
We pressed him on whether a shorter timescale for producing a
tri-Service Act would be possible. Mr Miller's view was that working
to separate discipline Acts was not causing operational problems
at present and that the five year timetable was therefore 'sensible'
but that if there was a real need to bring in the Bill more quickly,
it might be possible for more resources to be found.
19. Although it is regrettable that consolidation
of the Service Discipline Acts has never been carried out, despite
the recommendations of our predecessors, we accept that it is
now time to move on to a tri-Service Act. We realise that this
is a substantial task, but we do not accept that it is necessary
to wait until the next scheduled review of the Service Discipline
Acts, in the 2005-06 parliamentary Session, before such a Bill
is brought before Parliament. We believe that the Ministry of
Defence is being complacent: there is already extensive joint
activity between the three Services and legislation is needed
which recognises this reality. We recommend that the Ministry
of Defence devote sufficient resources to the preparation of a
tri-Service Discipline Bill to ensure it is brought before Parliament
within three years. Given the past approach of successive governments,
we urge our colleagues on the Defence Committee to request an
annual update from the MoD on how this work is progressing, and
to inform the House.
20. Joint operations and exercises between our own
Armed Forces are increasingly common, but this is also true of
multinational activities with our allies. The drafting of a tri-Service
Discipline Bill would provide a valuable opportunity for examining
existing legislation governing the way our forces operate in an
international environment, and for ensuring that the basis for
the involvement of UK Service personnel in joint activities with
forces from other nations and in other nations is properly defined,
and where possible is contained within the single tri-Service
II THE BILL
21. Significant changes were made to military discipline
only last year in the Armed Forces Discipline Act, which came
into force on 2 October 2000.
The most important of these were to the summary discipline system,
where an accused person's commanding officer has responsibility
for charging the person, hearing the case, deciding if the case
is proved, and awarding sentence. The changes were made in response
to a finding against the United Kingdom government in the European
Court of Human Rights in February 1999, that aspects of the Services
discipline system, as then operated, did not comply with the European
Convention on Human Rights (ECHR). Legislation was introduced
in the last parliamentary Session, rather than waiting for the
usual five-yearly opportunity to review the Service Discipline
Acts provided in this Armed Forces Bill, to ensure that military
discipline was compliant with the European Convention as soon
as possible and to enable the changes to come into effect at the
same time as the Human Rights Act 1998, which incorporated ECHR
provisions into UK domestic law.
22. We took the opportunity during our visits to
discuss the effects of the Act's implementation with the people
directly affected by it. We have been able to talk to representatives
of all three Services about this, in a wide variety of circumstances:
at sea; in barracks in the UK; at the Military Corrective Training
Centre in Colchester; on active deployment in Kosovo; and in the
long-established garrison in Cyprus. The general view was that,
with only a few months' experience of the new procedures, it was
too early to make a full assessment but that the impact had been
much less dramatic than had been anticipated and that the effects
had been mainly positive. There had undoubtedly been a considerable
increase in paperwork and form-filling to meet the requirements
of the new procedures, particularly for summary discipline. Although
this has increased the burden on those responsible for administering
personnel policy and discipline in the Services, those we spoke
to accepted that there were accompanying benefits of transparency
and clarity in the new disciplinary procedures, for both the accused
and for commanding officers. The Chief of the Defence Staff did
not believe the new procedures had had any effect on operational
effectiveness. He took the view that the increased bureaucratic
burden was a necessary one and that it would reduce as staff became
more accustomed to the new system. Initial experience had shown
that the number of appeals against summary findings by commanding
officers, which was one of the key changes in the legislation,
was much lower than had been expected.
23. As a result of the Armed Forces Discipline Act
being passed in the last parliamentary Session, less substantial
change is proposed to the Service Discipline Acts in this Bill
than might have otherwise been the case, and many of the Bill's
provisions are uncontroversial and technical. We discuss in this
Report only those which, from our examination, we believe do not
fall into that category. In addition to the helpful Explanatory
Notes published with the Bill, the Ministry of Defence submitted
a memorandum to us on its main provisions and much of our initial
oral evidence was devoted to elucidation from MoD witnesses of
the precise intent of each clause of the Bill.
Clauses 31 and 32 of the Bill, dealing with the proposed extension
of the jurisdiction of the Ministry of Defence Police, gave us
considerable cause for concern, shared by a number of those who
might be affected by the changes. Such is the importance which
we attach to these issues that we have devoted a separate section
of this Report to them. The remainder of this section highlights
other areas of the Bill which we believe merit some comment.
Journalists and the Service Discipline Acts
24. It has been the policy of successive governments
that, as far as is consistent with preserving Service ethos and
discipline, military law should reflect civilian law. Clauses
2 to16 of the Bill form part of this process, in bringing the
powers of Service police in relation to entry, search and seizure
in line with the Police and Criminal Evidence Act 1984 (PACE).
In many respects, we welcome these changes in that they provide
a firm, legal basis for areas of Service discipline which were
previously undefined and unspecified. However, we were worried
about the implications of Clause 6 of the Bill. This clause allows
the Secretary of State to make orders to enable Service policemen
to apply to a judicial officer for a warrant to search premises
for 'excluded material' or 'special procedure material', both
of which could include 'journalist's materials' under the definition
given in PACE which is also applicable to this Bill. We explored
in oral evidence with Ministry of Defence officials exactly what
was intended by these terms, without making much progress.
The MoD subsequently provided us with a supplementary memorandum,
clarifying these definitions and the intention of the Clause.
25. It is important that these provisions are not
confused with the proposed extension of the jurisdiction of the
Ministry of Defence Police, which has also caused concern in the
press and which we address below. Service police are limited
in their responsibilities to the investigation of offences under
the Service Discipline Acts (SDAs). In addition to Service personnel,
there are a number of circumstances in which the SDAs apply to
civilians, including when they are working for or in connection
with the Services outside the United Kingdom. This could include
journalists accompanying Service personnel on operations, when
they are required to sign an undertaking that they will comply
with the SDAs.
The MoD regard it as 'unlikely' that journalistic material would
be required in the course of an investigation carried out by Service
police, although they do not rule out the possibility completely.
They point out that at present the powers of the Service police
to search for such material is not defined; they are not required
to obtain a search warrant; and there are no safeguards in place
for sensitive materials.
In this respect, we accept that the Clause 6 provisions are a
Eligibility to serve on courts-martial
26. Clauses 17 to 30 deal with amendments to procedures
for trial and punishment. Clause 19 gives effect to a long-heralded
change in allowing warrant officers to sit on courts-martial dealing
with ranks subordinate to them. The Chief of the Defence Staff
welcomed this change
as do we. Our only concern was a specific proposition relating
to warrant officers in the Royal Navy. Warrant officers subsequently
promoted to commissioned rank in the Navy are given the rank of
sub-lieutenant and may thereafter be promoted to lieutenant. Young
people entering the Navy at officer rank are not able to serve
on courts-martial as sub-lieutenants but have to wait until they
are promoted to lieutenant. This rule makes perfect sense for
young officers with little experience. But it is clearly nonsensical
for experienced warrant officers to lose their right to sit on
courts-martial on promotion to officer rank and to have to await
further promotion to regain this right. This situation does not
arise in the Army and Air Force, as they do not have a sub-lieutenant
rank, although warrant officers who are commissioned will still
be required to undertake a period of commissioned service before
being eligible for the full range of courts-martial. Their initial
eligibility will be limited to trials where they could have sat
before they were commissioned. We raised the Royal Navy anomaly
with Ministry of Defence officials who agreed to look again at
We welcome the government's subsequent amendment of the Bill during
its formal consideration in this Committee, to take account of
IV THE MINISTRY OF DEFENCE POLICE
Policing and security forces
27. There are a number of policing and security organisations
operating in the Service environment and it is important to be
clear about their respective roles and attributes.
- Service police (also
known as military police) are Service personnel and act as the
specialist police forces of the Armed Forces. They are: the Royal
Navy Regulating Branch; the Royal Marines Police; the Royal Military
Police; and the Royal Air Force Police. They are responsible for
exercising jurisdiction over Service personnel in respect of offences
against military law and discipline and in respect of offences
committed against the civilian law covered by the Service Discipline
Acts which involve only other Service personnel and property.
The jurisdiction of the Service police also extends to civilians
when they are subject to the SDAs.
- The Ministry of Defence Police
(MDP) is a civilian police force whose primary role is the investigation
and prevention of crime within the defence estate. Its jurisdiction
is defined in the Ministry of Defence Police Act 1987. Its officers
have full constabulary powers within the area of their jurisdiction.
All uniformed officers are firearms trained.
- Other guarding and security forces
perform a defined role within the MoD estate. The Ministry of
Defence Guard Service (MGS) undertakes all unarmed guarding tasks
including access control and patrols. The Military Provost Guard
Service (MPGS) employs military personnel on local service engagements
to provide an armed guarding service.
Private security firms are also used on the defence estate.
- Armed Forces personnel also carry out armed and
unarmed guarding and patrol duties within military establishments
as part of their normal duties.
Current status of the Ministry of Defence Police
28. The Ministry of Defence Police force was formed
in 1971 from the unification of separate service constabularies.
Its present role and jurisdiction were defined in the Ministry
of Defence Police Act 1987: the force has formal responsibility
for policing MoD establishments in the United Kingdom. It became
an MoD Agency in 1996 and the force is headed by a Chief Constable
who is also the chief executive of the Agency.
MDP officers have had the authority since 1987 to operate 'in
the vicinity of defence land' when an officer from a local force
requests them to do so but, beyond this definition, the jurisdiction
of the MDP is confined to the defence estate and Crown property.
29. The MDP's complement today is 3,629, reduced
from 5,000 since 1987.
This reduction has arisen from a decision to replace some of the
armed guarding posts filled by MDP officers with the new Military
Provost Guard Service of locally engaged Service personnel. The
grounds for this decision were that police officers with full
constabulary powers were over-qualified for a straightforward
guarding role and that using personnel specifically engaged for
guarding duties would provide a more appropriate and cheaper option.
Our predecessors on the 1996 Select Committee on the Armed Forces
Bill, and the Defence Committee in the previous Parliament, commented
on these proposals.
The reduced number of MDP officers has affected the way they perform
their duties: the MDP now includes 16 area policing teams, each
covering a number of MoD establishments, and travelling between
them as necessary.
The Bill's proposals
30. Clause 31 of the Bill seeks to extend the jurisdiction
of the Ministry of Defence Police in two main areas. First, the
present power of an MDP constable to act in the vicinity of defence
land in response to a specific request from a member of a local
police force would be extended to a more general power to take
on policing duties in areas 'close to defence land' based on 'standing
arrangements agreed at a high level' between the MDP and Home
Department police forces. The ability to respond to a request
for assistance in a specific case made by a local force would
also be available.
31. Second, an MDP officer in uniform (or having
proof that he is an officer) would be empowered to act without
a request for assistance from a local police force, in emergency
situations, where it was not possible to obtain authority to act
in advance, and where the MDP officer had reasonable grounds for
believing action is necessary to save life or to prevent or minimise
An example of where this might arise would be where MDP officers
come across a road traffic accident while travelling between MoD
establishments. At present, an MDP police officer has only the
same jurisdiction as a member of the general public in attempting
to deal with incidents which he comes across outside the defence
estate: that of citizen's arrest.
Areas of concern
32. We identified the following areas of concern
in assessing the desirability of extending the jurisdiction of
- the expanding role of the MDP
- accountability and independence
- co-operation with local police forces
- training and experience in dealing with the general
THE EXPANDING ROLE OF THE MDP
33. Some witnesses, and outside commentators, expressed
concern about the expanding role of the Ministry of Defence Police
since the 1987 Act and believed this Bill represented another
significant step in this process. Ms Gillian Linscott, of the
National Union of Journalists, described the growth of MDP powers
as 'jurisdiction creep'. Her view was that
... certain assurances were
given after the 1987 Act was passed about limitations and controls
on the activities of Ministry of Defence Police which have, in
some circumstances, been broken ...
These assurances included an undertaking from the
then Minister, Mr Archie Hamilton, that
Serious crime, like all crime,
is the responsibility of the Home Department forces ... The Ministry
of Defence police would hand over responsibility for such crimes
at once. If the case involved murder, rape or any such thing there
would be no question and the investigation would be handed, straight
away, to the Home Department forces, although, conceivably, the
MDP may be first on the scene of the crime.
Practice has clearly changed since then: the MDP's
Annual Report for 1999-2000 says that 30 allegations of rape were
investigated last year by the MDP, and the Deputy Chief Constable
told us that there were instances where the MDP, with the agreement
of a local force, would investigate a murder.
He believed the MDP now had the experience and the technical ability
to investigate serious crimes, which they did not have in 1987.
The representative of the Association of Chief Police Officers
in Scotland (ACPOS), Mr Colin McKerracher, Assistant Chief Constable
of Strathclyde Police, did not believe the MDP investigated rape
and murder in Scotland.
34. The MoD's view is that the principles set out
by the Minister in 1987 'remain valid' but that there has been
'a shift in emphasis in the handling of cases' which is recognised
in the Protocols between the MDP and local forces (see below).
The Chief Constable of the MDP (who has been in post for only
three months, following 31 years in Home Department forces) agreed
that the MDP's role had changed in the 14 years since the 1987
Act but regarded this development as a natural evolution to more
fully recognise the changing needs of the force's 'customers'.
He assured us that he did not envisage the role and responsibilities
of the force expanding; he believed the Bill's proposals would
change the way the MDP carried out its role, not the role itself.
The Deputy Under Secretary of State for Civilian Management (DUS
(CM)) (Mr Michael Legge) agreed that the changes proposed in the
Bill arose from experience of operating the 1987 Act, and were
attempting simply to remove difficulties which MDP officers currently
face in fulfilling their duties.
The Secretary of State reinforced this view and was emphatic that
the Bill was proposing 'modest' amendments to the MDP's powers.
He said that he did not 'anticipate any significant further changes'
to the MDP's jurisdiction, although he could not rule out the
35. Some commentators went as far as to say that
the Bill's proposals to broaden the MDP's jurisdiction beyond
the narrow definition of the vicinity of defence land 'raised
concerns about the creation of a national force of paramilitary
The NUJ's witnesses agreed that a consequence of the Bill might
be to introduce a national police force 'by the back door' which
... a non-accountable national
police force, technically owned by a senior civil servant at the
Department of Defence, technically an agency, accountable only
to the Secretary of State for Defence with a committee appointed
only by the Secretary of State for Defence, that would quite specifically
be used nationally in things like industrial disputes ... 
The Secretary of State's view was that the MDP was
a national police force already, in the sense that the MoD estate,
for which it was responsible, was organised nationally and that
it was comparable to the British Transport Police in this respect.
The ACPO representative refuted the more alarmist press reaction
I give no credence at all
to the suggestion that this is some cunning plot to bring about
a national police organisation 
He did not believe that the MDP would seek to increase
its role, given the challenge of its 'core task' of policing defence
property, nor did he anticipate that there was any likelihood
that the policing of town centres would become the 'domain of
the MoD police'.
DUS (CM) believed press reports about the creation of a national
police force to be 'misleading' and emphasised that
... in all cases where the
proposed changes in legislation will take effect, save in the
very limited one of the Ministry of Defence Police coming across
an emergency situation where they have to act, all the other changes
would relate to where they are acting in response to a request
from a Home Department force or a Home Department chief constable.
The Secretary of State agreed that this was the case.
36. We explored with Ministry of Defence witnesses
where the impetus and motivation behind the Bill's proposals on
the jurisdiction of the MDP had arisen. DUS (CM) was clear that
... the proposed changes
in legislation originated with the Ministry of Defence Police,
with the former Chief Constable.
and that the MoD was not being pressured by the Home
Office, for example, to extend the MDP's jurisdiction in this
way. We asked him
why the MoD was seeking to change the way in which the MDP is
able to respond to requests for assistance from Home Department
police forces. We
wished, in particular, to establish whether this proposed change
was inspired by experience of the protests over fuel prices which
occurred in September 2000. Under the present legislation, MDP
police officers would not have constabulary powers to assist local
police forces in such situations away from the immediate vicinity
of MoD establishments. The outgoing Chief Constable of the MDP
made specific reference to policing the fuel protests in respect
of the present limits on MDP jurisdiction in his speech last October
to the Defence Police Federation
... we still have anomalies
in respect of our jurisdiction which is presently legislated for
in the MDP Act of 1987. A more recent and poignant example was
that of a request from 2nd PUS for us to supply police
officers on a mutual aid basis during the fuel crises. I wrote
back to the 2nd PUS and told him that he could have
as many officers as reasonably practicable but he wouldn't be
able to use them for the specific role that the Home Office had
intended (that of aiding fuel convoys or policing picketed oil
refineries). Having explained our dilemma in great legislative
detail it wasn't long before the 2nd PUS was on the
case. It has always been a point of great concern that fundamental
issues such as where and when we can exercise the power of Constable
have taken such a long time to be formally recognised. At last
we have the final pieces of the jigsaw in place and ironically,
it is the Armed Forces Bill 2001 which is the vehicle we are using
to make these final changes.
If the Bill becomes law as presently drafted, the
MDP Chief Constable would be able to provide assistance to local
forces, if he had the resources and wished to use them in this
way. The Chief Constable
would retain the authority to decide whether or not to use his
officers to assist another force in response to any request. He
I am very clear about my
operational independence ... I would have no hesitation in terms
of an operational decision of not committing MDP resources.
The Secretary of State said there was no 'ulterior
motive' behind the proposed changes.
There were three reasons for them
Firstly, we now have some
considerable experience, 13 years I think, of the operation of
the 1987 Act which consolidated the powers in relation to the
Ministry of Defence Police, which has demonstrated certain weaknesses,
not significant weaknesses but areas where we judge it appropriate
to bring the law up to date to reflect the current reality, and
therefore these modest changes are designed to achieve that in
the first place. Secondly, there have been some changes in the
way in which the Ministry of Defence Police have operated since
1987, and in particular they have become more mobile, they have
a jurisdiction in defence establishments but when they are organised
to travel between defence establishments it seems to make sense,
to me at any rate, that they should have certain rights between
defence establishments. Thirdly, and perhaps most importantly
as far as the number of changes are concerned, to facilitate co-operation
between the Ministry of Defence Police and other police forces,
to ensure that there is mutual support between people wearing
police uniforms, and really the existing arrangements do not allow
that to happen to the extent we believe should be appropriate.
37. The Chief Constable of the MDP agreed that increased
mobility, public expectation about police officers, and the need
to provide a secure legal basis for MDP officers acting outside
the defence estate were the motivation behind changing their powers
to act in emergency situations.
The MoD has provided us with a dossier of cases demonstrating
circumstances in which MDP officers have encountered incidents
when moving between bases.
In responding to these incidents in a way they felt was incumbent
upon them as police officers, they risked legal challenge because
their constabulary powers do not currently extend beyond the defence
estate. In dealing with incidents outside MoD property they currently
have only the same powers as a member of the public. ACPO are
anxious that the MDP should not use the 'emergency' powers which
would be conferred on them by the Bill actively to increase their
involvement outside the defence estate
... many more mobile patrols
seem to be undertaken by the MDP officers and in doing so we would
be determined to make sure that officers were not leaving their
bases and patrolling in order to find incidents to attend.
But accept that
The last thing any of us
would wish to see is a marked police vehicle with what appears
to be a police officer in it driving past the scene of an accident.
The ACPO witness believed the legislation would improve
the current position by providing clarity and transparency in
what was currently 'a grey area'. There would be increased accountability
because it would be clearer to all concerned where the MDP fitted
into the chain of command.
The ACPOS representative believed that the emergency situations
which the Bill's proposals are addressing were not numerous but
that clarification of responsibility was important.
38. We do not share the more extreme concerns about
the motivation behind the extension of the jurisdiction of the
MDP. However, less suspicion might have arisen about the intention
of the legislation if the government had introduced a separate
Bill, specifically to amend the 1987 Ministry of Defence Police
Act, rather than tacking these proposed changes on to a Bill primarily
intended to deal with Service discipline. The Secretary of State
pointed out that
It has always been the case
that the quinquennial legislation dealing with Armed Forces discipline
has been used to deal with a wider range of issues.
That is so, but we do not accept that this means
it was necessarily the most appropriate approach in this case
and we hope this will be borne in mind when similar legislation
is brought before Parliament in the future.
39. We believe that there is a case for giving
MDP officers greater powers than that of a citizen when they are
attempting to deal with emergency situations which they come across
in fulfilling their normal duties. However, we would be completely
opposed to the MDP actively seeking to increase its involvement
in general policing duties which are the proper responsibility
of local police forces. We recommend that, if and when these powers
are conferred, the number of incidents dealt with by the MDP under
their new powers are scrupulously monitored and that the MoD and
the Chief Constable ensure that action is taken if there is any
evidence emerging that the MDP are beginning to act frequently
outside their specified areas of responsibility.
ACCOUNTABILITY AND INDEPENDENCE
40. The Chief Constable of the MDP told us he was
'very comfortable' with the levels of accountability which he
believed existed for the MDP: to the law, to Parliament, to the
MoD Police Committee, and to his fellow senior police officers.
However, the MDP's accountability is different from Home Department
police forces, as the Chief Constable acknowledged.
There is a police authority for each Home Department police force,
with a statutory responsibility for securing the maintenance of
an efficient and effective police force for its area and with
a membership of local councillors, magistrates and independent
members. Under the Police and Criminal Evidence Act 1984, police
authorities have a legal responsibility to consult the general
public: police community consultative groups, (in different forms
and with different names) exist for all Home Department forces
and hold regular public meetings. In contrast, MDP accountability
procedures are contained within the Ministry of Defence. It is
accountable to the Secretary of State, as an MoD Agency and the
Secretary of State saw no difficulty in political accountability
being exercised in this way.
Day to day responsibility for the MDP is delegated to the Second
Permanent Under Secretary who is the owner of the Agency and who
chairs the Ministry of Defence Police Committee. The committee's
membership includes senior Service and police personnel, MoD officials,
and what the Secretary of State described as 'three lay members'.
It was not immediately apparent to us, from the list set out in
the MDP's last Annual Report, which of the Police Committee members
could be described in this way.
The MoD has subsequently informed us that the membership of the
Police Committee has changed and now includes three independent
members, of whom one is a trade union representative, and another
represents the Army Families Federation.
41. Witnesses from the National Union of Journalists,
two of whom had had direct and well-publicised experience of the
MDP, believed that accountability was a key issue. They told us
that some of their concerns about the proposals to extend the
MDP's jurisdiction would be allayed if public accountability was
introduced alongside the Bill's proposals.
We agree that this lack of public accountability is a negative
and singular feature which sets the MDP apart from other civilian
police forces. It may be possible to justify this if the MDP's
activities are solely concerned with defence personnel and property
but, if the MDP is to come into more frequent contact with the
general public, we believe this should be accompanied by a form
of external accountability comparable to the role performed by
police authorities and police consultative committees in Home
Department police forces.
42. We were pleased to have confirmation that the
MDP's relationship with the Police Complaints Authority is identical
to that of other civilian police forces, whether its officers
are operating on or off the MoD estate.
The Secretary of State also agreed to look at putting the MDP
on the same statutory basis as other civilian police forces in
relation to inspections by HM Inspectors of Constabulary, to replace
the current more informal arrangements.
We welcome the recent addition of three independent members to
the MoD Police Committee but believe it is important that accountability
is further enhanced by the inclusion of representatives of the
wider community. We recognise that the MDP does not serve a geographically
defined community in the same way as Home Department police forces,
but it should not be beyond the imagination of those responsible
to devise ways of changing the composition of the committee so
that it more closely mirrors the functions performed by police
authorities and community consultative groups for other civilian
police forces. We recommend that the composition of the MoD
Police Committee should be reviewed and that at least a third
of its members should be drawn from outside the civil service,
the police service or the Armed Services.
CO-OPERATION WITH LOCAL POLICE FORCES
43. At the time of the passage of the Ministry of
Defence Police Bill through Parliament it was stressed that the
MDP would work in close co-operation with Home Department and
Scottish police forces. Guidelines for co-ordination of activities
between the MDP and local forces are now contained in Protocols
agreed by the two parties.
The first assertion in the Protocols is that primary responsibility
for the maintenance and enforcement of the criminal law rests
with the Chief Constable of the local police force, and the Deputy
Chief Constable of the MDP assured us that
The absolute primacy of geographical
constabularies is not challenged ... We respect that, we recognise
it and we understand it.
The ACPO witness told us that
... the protocol has worked
exceptionally well, both at a political (with a small 'p') level
and at a practical level. Both sides invested a great deal of
time and effort in ensuring that that protocol did capture the
reality of the situation that it was going to have to deal with,
and as a result of that there are no fundamental flaws or issues
within it at all.
The ACPOS representative said that the success of
the relationship between the MDP and Scottish police forces hitherto
had resulted from close co-operation and joint planning, based
on the Protocol, and that he expected that to continue in the
future. Neither of
these witnesses believed there was an issue of rivalry between
the MDP and their own forces and assured us that when they were
required to work together, such as in policing demonstrations
at military bases, the process worked well.
The Defence Police Federation, the representative organisation
for MDP officers, agreed that the MDP and Home Department forces
complemented each other.
44. It is envisaged that new Protocols will be drawn
up to take account of the Bill's provisions
and evidence we received from local police forces made clear how
important this will be to the success or otherwise of the Bill's
proposals on the MDP. ACPOS stressed that it was 'extremely important'
that such an extension of the MDP's jurisdiction
... is properly managed and
controlled to prevent a situation where we have various forces
empowered to lawfully perform duty in the same area, thereby leading
to considerable confusion, ambiguity and differing working practices
which will undoubtedly impact on service delivery to the public.
and reiterated in oral evidence that the detail set
out in the revised Protocols would be fundamental to the process
... I do not think this Bill
can stand on its own; it has to lie alongside a protocol between
the local force and the Ministry of Defence Police ...
The Chair of ACPO's General Policing Committee assured
I have an agreement with
the Ministry of Defence Police that we will sit down as soon as
this legislation is passed to draw up a new concordat ... so that
it is clearly outlined in what circumstances Ministry of Defence
Police officers are able to act with statutory powers.
45. The ACPOS witness gave us an example of one of
the ways in which the Bill's provisions, giving the MDP full constabulary
powers to deal with emergencies outside of defence property, might
create additional complications for the working relationship.
Having arrested a member of the general public in such a situation,
a question arises at what point, if any, would the MDP hand over
responsibility for taking the case through the legal process to
the local police force.
The MDP Deputy Chief Constable told us that MDP officers are trained
in the same way as any other civilian police officer to prepare
case files for the Crown Prosecution Service and its equivalents,
and that they deal with these matters now as part of their normal
duties. In relation to the extension of the jurisdiction, a case
arising from an emergency would be handed over to the local force
at the earliest opportunity, with MDP officers contributing to
reporting the case as necessary. The DUS (CM) confirmed that the
precise details of how this would work would be spelt out in the
46. It is clear to us that the detailed agreements
reached in the revised Protocols between Home Department police
forces and the MDP will be the determining factor in how well
the extension of the MDP's powers works in practice. It is difficult
for us, confronted by the bare bones of the proposals contained
in the Bill, to be confident that no problems will arise in practice.
We are reassured to some extent by the previous success of the
Protocols; by the obvious conviction of those on the ground that
these proposals can be made to work; and their determination to
achieve this. We believe that it would contribute to accountability
and ensure all parties are clear about the detail of the arrangements
if the Protocols were more obviously public documents than their
current status, as departmental circulars, allows. The Secretary
of State saw no problem with this.
Continued effective co-operation and co-ordination of activities
between the MDP and local police forces is a matter fundamental
to public confidence in policing. We welcome the Secretary of
State's assurance that the revised Protocols, once agreed, will
be published and made readily available to the general public.
We expect the MoD and the Home Office to monitor the operation
of the revised Protocols with great care, with a view to further
early revision if this proves necessary.
47. The Ministry of Defence Police differ from other
civilian police forces in that all uniformed officers are trained
in the use of firearms and they more routinely carry firearms
when on duty. The rules controlling the bearing of firearms by
the MDP need to be beyond doubt or misunderstanding if the MDP
is to take on a role which brings them into more frequent contact
with the general public. The ACPOS witness told us
... what we jealously guard
in Scotland, and I am sure our English and Welsh colleagues do,
is the fact that we do not routinely arm our police officers.
What we do not want is a situation whereby Ministry of Defence
Police officers, who I have already said to all intents and purposes
are police officers in the public eye, are seen to be routinely
armed and coming out of bases with arms on show to the public.
In written evidence ACPOS stressed that the firearms
issue is one
... which requires to be
addressed ... it will be necessary to fully explore the implications
of self-arming and whether a policy is required in this respect.
The overriding principle must be that members of the public and
indeed other police officers will not be at risk by the armed
intervention of MDP officers.
48. The Deputy Chief Constable of the MDP gave us
a very clear statement of the circumstances in which MDP officers
... Ministry of Defence police
officers who are required to be armed within the MoD estate ...
generally do not carry firearms outside of the MoD estate. I said
'generally' because there are a very small number of exceptions.
We escort very sensitive loads of material up and down the country
and there are a very small number, one or two other special circumstances
... other than in the special circumstances I have alluded to
today MoD officers cannot carry firearms and ammunition outside
during their duty. If we have to move firearms from one establishment
to another very special arrangements are in hand. Ammunition and
firearms are not transported together ...
and there is nothing in the Bill which will alter
The Defence Police Federation assured us that the MDP follow ACPO
and ACPOS guidelines on the carrying and use of firearms and the
Deputy Chief Constable also confirmed this.
The issue of firearms is not dealt with specifically in the Protocol
between the MDP and Home Department police forces. The Scottish
Protocol is more detailed: it acknowledges that the MDP are 'legally
entitled to possess firearms' but requires consultation with the
local Chief Constable before they are taken outside MoD property.
The ACPOS witness was content with the way this operated in practice.
49. The proposals in the Bill do not alter the
circumstances in which the MDP will carry firearms. The present
arrangements for keeping local forces informed when armed MDP
officers escort sensitive convoys seem to work effectively. Nevertheless,
we believe that the increased visibility of the MDP on the public
highways as a result of their more mobile pattern of working,
and their likely increased contact with the general public arising
from the Bill's provisions, necessitate precise, formal agreements
on the carrying of firearms by the MDP being in place. We recommend
that the revised Protocols between the MDP and local forces address
the matter of where and when firearms are carried by MDP officers,
specifically and in detail. The Chief Constable of the MDP should
agree with his counterparts in local forces whether any additional
measures are necessary to ensure that the provisions on firearms
in the revised Protocols are clearly understood by all MDP and
other civilian police officers, and that they are strictly adhered
TRAINING AND EXPERIENCE
50. The Ministry of Defence Police are trained at
their own Police Training Centre at Wethersfield in Essex. The
Deputy Chief Constable of the MDP told us that recruits were selected
from the same pool as Home Department forces, to the same nationally
agreed standards, and that, like other civilian forces, their
training follows the national police training curriculum. Instructors
at Wethersfield are certified to the same standard as other police
trainers; they also train Home Department recruits; and the MDP's
CID training course is franchised to enable such training to be
provided to other police forces.
The Defence Police Federation confirmed that they believed their
members' training was 'identical' to Home Department forces.
It seems, however, that Chief Constables of Home Department forces
are either not aware of these parallel standards or do not have
complete confidence in them. ACPO believe that the proposed extension
of MDP jurisdiction should 'include a requirement that their training
be up to a certain standard',
although in oral evidence their representative said that
We recognise that the MOD
in their selection and recruitment have mirrored, to a great extent,
what has been going on in the Home Office forces.
He believed that the new Protocols should seek to
reassure Home Department forces and the public that the training
MDP officers receive gives them the necessary skills to cope with
their new powers.
ACPOS, too, apparently believe that MDP officer training differs
from Home Department forces, and their representative, the Assistant
Chief Constable of Strathclyde Police, believed local force commanders
would need an assurance about the training levels of MDP officers
if they are to operate within their areas.
51. We accept that the training of MDP officers is
of a standard comparable to Home Department forces; however, theoretical
training on a course is one thing, learning 'on the job' is another.
Our concern centres on the range of experience of MDP officers,
particularly in dealing with the general public. The Deputy Chief
Constable told us that the level of public complaints against
the MDP are about a tenth of what would be normal for a Home Department
force of a comparable size. We regard this as laudable; however,
the Deputy Chief Constable himself accepted that this was largely
because the MDP deal with 'a more restricted public ... in a more
restricted number of situations'.
This is not to say that the MDP have no contact with the public:
their jurisdiction brings them into frequent contact with civilian
residents in Service family quarters and with civilian employees
and contractors on defence property; and they often work with
local police forces in the difficult circumstances of dealing
with protestors at defence establishments.
52. It is difficult to foresee at this stage precisely
how the nature of the MDP's role might change if this Bill becomes
law because so much depends on the detail contained in the resulting
Protocols. It is at least possible that the Bill's proposals will
result in greater MDP contact with the general public, rather
than simply giving them a stronger legal basis for the role they
already perform. If it becomes clear that implementation of the
Bill's provisions has resulted in the MDP having an expanded public
role, we would expect the MoD to monitor any adverse effects and
to take appropriate remedial measures in MDP initial and in-career
training. Secondments between the MDP and local police forces
already take place and are considered valuable by both sides.
The Bill includes a provision to give MDP officers on secondment
to Home Department forces full constabulary powers, which clears
up some technical difficulties which exist at present.
We regard secondments as a sensible way to build on the relationship
between the MDP and local forces and to broaden the experience
of MDP officers and we believe they should be actively promoted.
V OTHER ISSUES
Legal representation for Service personnel
53. In examining the operation of the Service Discipline
Acts (SDAs), we wished to establish whether Service personnel
have the same access and choice in the legal representation available
to them as civilians and whether they might be disadvantaged by
any lack of entitlement to legal aid. Forces Law, a network of
solicitors who frequently represent Service personnel, told us
of their concerns in this respect, which were
- the differences in legal representation available
to Service personnel stationed in the UK and overseas;
- the point at which Service personnel become eligible
for legal aid, compared to civilians; and
- whether Service personnel have sufficient access
to what they would regard as independent legal advice.
54. A member of the Services interviewed at a police
station in the UK (whether a Service police station or a civilian
police station) may be represented by a civilian duty solicitor
or another solicitor prepared to accept duty solicitor rates of
We regard this as an acceptable arrangement. However, we wished
to clarify the current position on the availability of legal representation
at the Service police interview stage for Armed Forces personnel
serving overseas. Until the end of 1999, Service personnel
overseas had access in these circumstances, under Legal Aid Board
arrangements, to civilian duty solicitors but this provision was
withdrawn as part of an overall change in the legal aid system
for UK citizens overseas.
The position at present, therefore, is that a Service man or woman
is limited to advice from Service legal officers during a Service
police interview, unless they are prepared to meet the costs of
a civilian solicitor out of their own funds. Under reciprocal
arrangements, Army personnel are offered an RAF legal adviser
and vice versa. Army and RAF personnel may also contact
a civilian legal representative of their choice by telephone,
or by video link if this is available.
(Navy personnel serving overseas are almost always repatriated
to the UK and dealt with under the UK system of legal representation.)
55. The Ministry of Defence accept that this change
in provision 'may be seen to some extent to represent a decline
in the availability of choice'
and have informed us that new arrangements will be introduced
in April this year, under the provisions of the Criminal Defence
Service Bill currently before the House, to be administered by
the Legal Services Commission (which has replaced the Legal Aid
Board). These arrangements will, amongst other things, restore
access to civilian solicitors for Armed Forces personnel at Service
police interviews overseas. We welcome the acceptance that
the 1999 changes disadvantaged Armed Forces personnel serving
overseas and the reintroduction of their entitlement to legal
advice from civilian solicitors proposed in the Criminal Defence
56. The second concern of solicitors with experience
of legal cases in the Armed Forces is that, unlike civilians,
Service personnel are not charged at the end of the police interview.
At this stage, they are informed that their case will be reported
for disciplinary action and the equivalent to the 'charge' stage
of the process does not occur until the prosecuting authority
has examined the case and instructed the commanding officer to
serve papers on the accused person. Legal aid is not available
until these papers are served, and witnesses told us that this
process could take as long as six months, or even a year.
Solicitors believe that this disadvantages Service personnel in
that the time lapse arising from their inability to appoint a
legal representative before prosecution papers are served (unless
they pay for this themselves) means that the opportunity to obtain
witness statements and gather evidence in support of their defence
may be lost.
57. The MoD view is that it is necessary for the
commanding officer to be satisfied that the case should proceed;
and that if he is unable to deal with a case under the summary
discipline system, he has to refer it to a higher authority (ie
the officer to whom he is immediately responsible in the disciplinary
chain of command) if the case is to go to court-martial. This
process takes time but the MoD told us that there have only been
'a very few cases' where it had taken as long as 12 months for
prosecution papers to be served and that the Services were seeking
to reduce delays wherever possible.
The Director General of Service Personnel Policy at the MoD said
that he had not previously been aware of this problem and undertook
to look again at the time which elapses before legal aid becomes
available to Service personnel.
In the Army, a Director of the Office of Standards of Casework
has been appointed to monitor and eradicate delays and the Army's
Director of Personal Services was confident that this would give
the Army much greater 'visibility' of the administration of casework.
The MoD told us that 'Of course, the CO [commanding officer] has
a responsibility towards the accused to make sure that they have
access to advice and representation'.
We agree, and we hope that procedures will be reviewed to ensure
that they do not prevent commanding officers fulfilling this responsibility.
58. The representatives of Forces Law believed that
there was a perception amongst some Armed Forces personnel that
Service legal officers are not always sufficiently independent
in the advice they provide because they are too closely associated
with the chain of command.
In some cases, this perception led Service personnel to choose
to have no legal representation at all rather than use a Service
The MoD told us
There is no evidence to show
that Service personnel are dissatisfied with arrangements that
allow them to be represented at Service police interviews free
of charge by Service legal advisers.
although no surveys have been undertaken to assess
levels of satisfaction.
The MoD believed there was no question of Service lawyers having
divided loyalties and emphasised that they worked to the standards
laid down by their professional bodies; in practice the only way
to judge the service they provided was on their performance.
59. We have no reason to doubt that Service lawyers
provide a proper service and that they are professional in the
way they undertake their duties. MoD tell us that it is a 'rare
occurrence' for personnel to request civilian rather than Service
and we believe this reflects a generally high level of confidence
in Service legal officers. However, it is important that Service
personnel believe that they have access to justice on the same
basis of fairness which civilians enjoy. This is one area where
differences between the Armed Forces and wider society, which
are appropriate in some aspects of military life, are not acceptable.
We believe that, wherever possible, Service personnel should be
given access to civilian lawyers, if that is their choice, and
that sufficient levels of legal aid should be available to facilitate
this. There is scope for extending the use of video links to enable
individuals to consult legal representatives when they are stationed
overseas, without travel costs being incurred, and we believe
that the MoD should take the necessary steps to ensure the appropriate
technology is available wherever possible.
60. Our predecessors in 1991 and in 1996 looked at
the issue of the terms of service of Armed Forces personnel recruited
under the age of 18 and recommended that the rules be reviewed.
Under-18s can give two weeks' notice to leave the Services at
any time between one month and six months' service. After the
six-month period has elapsed, they cannot then give notice to
leave the Services until they have served for three or four years
from the age of 18, when they can give 12 months' notice.
Our predecessors commented that under-18s were disadvantaged in
that their minimum time to serve (MTS) was not calculated from
the time they joined the Services, which would be the case for
personnel over 18, but from the age of 18.
At Ease, a voluntary advisory organisation for Service personnel
and their families, described the position of under-18s in the
Armed Forces as 'bonded servitude'.
61. We cannot accept this. In addition to the ability
to give notice within the six-month period, there is also a facility
for 'unhappy juniors' to be discharged up to the age of 18 (or
18 and three months in the Army) if their service in the forces
is clearly the cause of their unhappiness.
Nor is this simply left to the discretion of the commanding officer
(CO): the Army's Director of Personal Services told us that, under
Queen's Regulations, there was a 'specific requirement' on COs
closely to supervise young people who were clearly unhappy and
not to prevent them leaving if they wished.
The Director General of Service Personnel Policy said that he
had 'never known of cases in which a commanding officer was difficult
about a youngster wanting to leave' and that it was not in the
interests of the Services, or young people themselves, to keep
them if they wished to leave.
62. At Ease believed that the requirement to serve
for four years from the age of 18 was not made sufficiently clear
to recruits or their parents during the recruitment process and
that many believe they will 'sign on again for adult contracts
at the age of 18'.
The MoD believed that the commitment recruits were making was
... spelled out very clearly
to them during the recruiting process ... the procedures are there
and it is laid out. The extent to which an individual comprehends
what is being meant by the term for which he is signing is something
which is impossible to judge.
At Ease were also concerned by the focus in Service
advertising campaigns on education and training opportunities,
because they believe any Service man or woman taking up an education
or training course is required to sign a waiver forfeiting their
right to give 12 months' notice to leave the Services.
In response, the MoD asserted that, with the exception of university
... there is no possibility
that a soldier, sailor or airman, under the age of 18, would be
required to extend his service as a result of a training course
which he could have undertaken at that stage.
63. We welcome the clarification of the position
of under-18s in the Armed Forces which the MoD has provided and
we are satisfied that the provisions in place are adequate to
allow those who are genuinely unhappy to leave. Healthy levels
of recruitment to the Services are crucial to their continued
ability to meet the requirements placed upon them. We believe
it continues to be important to recruit young people straight
from school, including at the age of 16; if they are not caught
at this point, they are likely to take up other careers and be
permanently lost to the Armed Forces. We agree with the Defence
Committee, that publicising the education and training opportunities
available in the Armed Forces is a key recruitment tool which
the Services must exploit if they are to continue to attract sufficient
numbers of young people from a shrinking pool in a competitive
The Defence Committee did comment, however, that it was necessary
to ensure that 'appropriate safeguards are in place to guard against
poor recruitment practices'.
We believe it is poor practice to recruit any young person, but
particularly those under 18, without ensuring that they and their
families fully understand the commitment they are entering into.
We recommend that the information provided to potential recruits
under 18 is examined and if necessary revised to ensure that it
is clear and unequivocal about the length of time they will be
required to serve. Recruitment officers have a responsibility
to ensure that this information is understood by recruits, before
they are asked to sign any documents.
64. As is clear from this Report, few of the Bill's
clauses are controversial, but those relating to the Ministry
of Defence Police are, and have occupied a great deal of our consideration.
65. The need for a comprehensive overhaul of the
Service Discipline Acts was a matter of great concern to our predecessors
in 1991 and 1996 and the requirement for this becomes more crucial
every time the Acts in their existing form are amended. We have
accepted that consolidation is no longer worthwhile and that the
focus should now be on moving to a tri-Service Act as expeditiously
as possible. We do not agree with the MoD that this can await
the next five-yearly review of Service discipline, which will
not take place until the 2005-06 parliamentary Session, and we
expect, in response to our recommendations, that a draft tri-Service
Bill will be presented to Parliament within three years.
66. The way in which the House examines future
proposals to amend Service discipline will depend to a great extent
on the timing and nature of the proposed legislation. Our examination
of this, quite limited, Bill has necessitated many hours of detailed
work. The controversy surrounding the composition of this Committee
does not detract from our belief that a select committee process
of some kind will continue to be necessary and valuable for future
Billsand indeed provide a model which could be followed
with benefit for other types of legislation. There are some minor
defects to the procedures which we have pointed outwe hope
these will be taken into account in the course of considering
future scrutiny of the tri-Service Act.
67. We have reported the Bill to the House, with
1 Bill of Rights, 1688-9, Article VI Back
Report from the Select Committee on the Army Act and Air Force
Act, Session 1953-54, HC 223, paras 111-112 Back
Clause 1 of the Bill Back
No. 152 Back
list of Amendments tabled in the Committee is appended to this
Association of Chief Police Officers of England, Wales and Northern
Ireland (ACPO) and the Association of Chief Police Officers in
Scotland (ACPOS) Back
pp li-liii for a full list of witnesses Back
Volume II, Ev pp 167-269 Back
itinerary and list of interlocutors for the visit to Kosovo and
Cyprus is annexed to this Report. Back
HC Deb, 9 January 2001, c 1028 Back
motion to appoint the Committee was considered by the House on
the same day as the Second Reading debate, see HC Deb, 9 January
2001, cc 893-1028 Back
1996 Select Committee on the Armed Forces Bill included four members
of the Defence Committee Back
223, Session 1953-54, op cit, para 111 Back
Special Report of the Defence Committee, Session 2000-01, Annual
Report of the Committee for Session 1999-2000, HC 177, para
Report from the Liaison Committee, Session 2000-01, Shifting
the Balance: Unfinished Business, HC 391, para 82 Back
the most recent examples, see Special Report from the Select Committee
on the Armed Forces Bill, Session 1990-91, HC 179, and Special
Report from the Select Committee on the Armed Forces Bill, Session
1995-96, HC 143 Back
1991 Select Committee on the Armed Forces Bill was nominated on
6 December 1990 and reported to the House on 24 April 1991; it
held seven sessions of oral evidence and made five visits. The
1996 Select Committee was nominated on 10 January 1996 and reported
to the House on 30 April; it held nine sessions of oral evidence
and made three visits. Back
Report from the Defence Committee, Session 2000-01, Strategic
Defence Review: Policy for People, HC 29-I Back
3, Ev pp 172-174 Back
143, Session 1995-96, op cit, paras 25-29 Back
29-I, Session 2000-01, op cit, paras 35-41, 121-128 Back
4, Ev pp 175-229, and Appendix 11, Ev pp 249-255 Back
179, Session 1990-91, op cit, para 44 and HC 143, Session
1995-96, op cit, paras 36-37 Back
143, Session 1995-96, op cit, para 37 Back
Report from the Defence Committee, Session 1999-2000, HC 253,
Armed Forces Discipline Bill [Lords], para 28 Back
Defence Review, Ministry
of Defence, July 1998, Cm 3999, para 133 Back
Deb, 9 January 2001, c 894 Back
12, 31 Back
5, 31-32 Back
HC 253, Session 1999-2000, op cit Back
Appendix 1, Ev pp 167-170 and QQ 1-493 Back
Appendix 6, Ev pp 232-233 Back
6, Ev p 233, para 11; Appendix 17, Ev p 266; see also HC Deb,
6 February 2001, c 462w Back
6, Ev p 233, para 10 Back
6, Ev p 232, para 4 Back
206-209; 407-408 Back
to create the MPGS were considered by the 1996 Select Committee
on the Armed Forces Bill (see HC 143, Session 1995-96, op cit,
paras 6-10) and by the Defence Committee in its Eighth Report,
Session 1995-96, Ministry of Defence Police and Guarding,
HC 189, paras 68-83 Back
a detailed description of the range of policing and guarding organisations
on the MoD estate, see Private Security, B George and M
Button, Chapter 16, Ministry of Defence Security Back
QQ 445-460 Back
6, Ev p 234 Back
143, Session 1995-96, op cit, paras 6-10; HC 189, Session
1995-96, op cit Back
321, 487. See also Explanatory Notes to the Bill, para 107 Back
Deb, 27 January 1987, c 279 Back
Constable's Annual Report and Accounts 1999-2000,
HC 609, July 2000; QQ 436-437, 442 Back
6, Ev p 234, para 3 Back
1096, 1097, 1104 Back
4 February 2001 Back
807, 840 Back
699, 705 Back
726, 730 Back
Department' police force is used here and elsewhere for convenience
and should be taken to include Scottish police forces, which
are the responsibility of the Scottish Executive Back
by Mr Walter Boreham OBE, then Chief Constable of the MDP, to
the Defence Police Federation Conference, 17 October 2000, available
on the Defence Police Federation website at www.dpf.org.uk Back
6, Ev pp 234-238; see also Q 489 Back
p 86; see also Q 676 Back
p 86 Back
736, 738 Back
Constable's Annual Report and Accounts 1999-2000,
HC 609, p 5 Back
full membership of the MoD Police Committee is as follows: Sir
Roger Jackling KCB CBE, Second Permanent Under Secretary, MoD
(Chairman); Admiral Sir Peter Abbott GBE KCB, Vice Chief of Defence
Staff (Vice Chairman); Mr Michael Legge CB CMG, Deputy Under Secretary
Civilian Management; Major General P A Chambers, Deputy Chief
of Staff HQ Land Command; Rear Admiral R G Lockwood, Chief of
Staff to the Second Sea Lord and Commander in Chief Naval Home
Command; Air Vice-Marshal A J Burton OBE, Air Officer Administration;
Mr N Evans, Director General Defence Logistics (Finance and Business
Planning); Sir David O'Dowd CBE QPM, HM Chief Inspector of Constabulary,
Adviser to Police Committee (England and Wales); Mr William Taylor
OstJ QPM, HM Chief Inspector of Constabulary, Adviser to Police
Committee (Scotland); Ann Kelly, independent member; Mr Bob Bowman,
Secretary, MoD Council of Civil Service Unions; Mrs Sally Osment,
Vice Chair of the Army Families Federation; and Mrs Gloria Craig,
Director General Security and Safety (Clerk to the Police Committee) Back
94 Q1116-18 Back
England and Wales, the latest version is the Co-ordinated Policing
Protocol between the Ministry of Defence Police and Home Office
Police Forces, contained in Home Office Circular 17/1999;
in Scotland, this is the Protocol between Ministry of Defence
Police and the Police Forces in Scotland, contained in Scottish
Executive Police Circular 14/1999. Back
435, 489 Back
495, 518-526, 682, 721 Back
p 65 Back
p 86 Back
pp 64-65 Back
594 and 430 Back
Circular 14/1999, op cit, para 7 Back
p 86 Back
p 64; Q 518 Back
438, 471 Back
18, Ev p 267, para 4 Back
18, Ev pp 267-268, para 8 Back
18, Ev p 267, paras 5-6 Back
940; Appendix 18, Ev p 267, para 6 Back
18, Ev pp 267-268, para 8 Back
p 118, para 8b Back
p 118, para 12 Back
18, Ev p 268, para 15 Back
18, Ev p 268, paras 15-16; Q 942 Back
18, Ev p 268, para 14 Back
18, Ev p 267, para 7 Back
18, Ev p 267, para 7; QQ 950-951 Back
18, Ev p 267, para 7 Back
963, 971. The minimum time to serve varies from three to four
years, depending on training and organisational requirements:
see Appendix 3, Ev p 174. See also Ev p 126 Back
179, Session 1990-91, op cit, paras 25-28 and HC 143, Session
1995-96, op cit, paras 38-43 Back
p 129; Q 903 Back
969, 967 Back
p 126 Back
904-905; Ev p 127 Back
HC 29-I, Session 2000-01, op cit, paras 90-99 Back
para 53 Back