Eighth Standing Committee on Delegated Legislation
Tuesday 8 June 1999
[Dr. Michael Clark in the Chair]
Draft Army, Air Force and Naval Discipline Acts (Continuation) Order 1999
4.30 pm
The Minister for the Armed Forces (Mr. Doug Henderson): I beg to move,
That the Committee has considered the draft Army, Air Force and Naval Discipline Acts (Continuation) Order 1999.
It is a great pleasure and privilege, Dr. Clark, to be a member of a Committee under your chairmanship. We have known each other for many years and I know that you will be extremely fair and even-minded when dealing with our debate—a view that is shared by other members of the Committee.
The purpose of the order is to continue in force for a further year the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957, which together provide the statutory basis for discipline in the three services. The Committee will be aware that, since 1961, an Armed Forces Bill has been brought before the House every five years with the primary purpose of continuing in force the Acts that provide the disciplinary powers of the three armed services.
Each Armed Forces bill is an opportunity for the services and Parliament and, indeed, the Special Select Committee that is constituted to consider the Bill to review service discipline. Between each five yearly Bill, the disciplinary code is renewed annually by the continuation order procedure which involves an Order in Council that is approved by a resolution of each House. The Committee will be aware that the most recent Armed Forces Bill was considered and enacted in 1996. I am asking the Committee to give the necessary annual renewal to the discipline Acts by agreeing to the order.
I also take this opportunity to advise the Committee of some of the changes that have been made to the service discipline structure and to provide an update on the progress that has been made on several social matters. Hon. Members may recall that, at the time of the passage through Parliament of the Armed Forces Act 1996, it was suggested that the death penalty should be abolished. In response, the Ministry of Defence carried out a fundamental review of the matter and, in July last year, my predecessor announced that it had been agreed that the death penalty for service offences should be abolished—as it was under the provisions of the Human Rights Act 1998. I am pleased to inform the Committee that the necessary legislative steps are being taken to effect that decision. However, detailed consequential amendments must be made to the service Acts and I am still considering how best to achieve that as soon as possible.
I conclude my remarks by paying tribute to the men and women who serve in our armed forces. Their professionalism and dedication continue to be admired by the House and by the nation as a whole—a point that strikes me each time I visit service communities or communities, in general. Some personnel do, however, occasionally stray from the disciplined conduct to which we expect them to adhere, but they are exceptions. The majority of our men and women maintain excellent standards and should be recognised for that. The service discipline Acts are designed to create a suitable environment to enable that good order and discipline to be sustained. I therefore invite the Committee to approve the order.
4.34 pm
Mr. Robert Key (Salisbury): I echo the Minister's words and I wish to say what a pleasure it is to serve under your chairmanship, Dr. Clark, in this special Committee. It is sometimes assumed that a continuation order is a formality and not a subject for great debate. However, it is a particularly important subject and we should take it seriously. I am grateful to the Minister for flagging up some of the issues that have caught his attention during his time as Minister for the Armed Forces.
I served on the Committee considering the Armed Forces Bill in 1996. I know what an important Bill it was for all three armed services. The way in which that Committee operates is unique; it is a lesson for the House. It turns itself from a Standing Committee into a Special Select Committee; it travels, takes evidence, listens to the forces in all three services and to their families; and then deliberates and reports to the House in a special report. It is, I suspect, an important way forward for other Committees of the House—indeed, there is already some progress in that direction—and, as someone who has had the privilege to work in the House for 16 years, I commend it.
We read from time to time in the press of high profile disciplinary cases. Whether they be cases of soldiers misbehaving overseas or inter-service cases involving deep human emotions, traumas and problems, they do little to improve the image of the forces. That, of course, has an impact on recruitment and retention. Even if the subject is acquitted, high profile courts martial can sometimes end in administrative discharge—a sort of double jeopardy for our service men and women.
We need to be particularly careful in what we propose. The fact is that Ministers will have a particularly difficult choice to make when considering what to propose in the next Armed Forces Bill. We, of course, support the continuation: it would be unthinkable that we should not, because wherever in the world they serve, our forces deserve a framework of justice in which they—and we—can have confidence.
I echo the Minister's words in praise of our armed forces, but the military now face a starker choice than ever between being a reflection of society and a breed apart. That is a real and difficult choice for every soldier, sailor and airman and woman. For instance, the Secretary of State for Scotland, the right hon. Member for Hamilton, North and Bellshill (Dr. Reid), formerly the Minister for the Armed Forces, believed passionately that members of the forces should be a reflection of society at large. Some would say that that is a German concept and that he was talking of citizens in uniform. That contrasts sharply with the uncompromising views of others such as General Sir Michael Rose, who believe that the military can never be civilians in uniform but that they are a people apart, who operate to higher and different standards. The chiefs of staff will have to make harsh and difficult judgments, and politicians should tread with extreme caution.
The forces will have to conform to civil law, except where a derogation is in place or if fighting or operational effectiveness has been impaired. But the forces also face the absolute need to recruit. That can lead to unrealistic demands for particular standards or a particular way of doing things that would not be acceptable to most young people. The forces will find a way to achieve that, as they always have in the past. However, they will need not only firm leadership but the help of the House in getting the balance right.
I have made it my business to find out what the young men and women now going into the forces think. They have different attitudes, if not values, from those of my generation. They have a different approach to life, are more tolerant, probably more mature, are considerably less prejudiced, lead more complex lives and have always faced more and more difficult moral choices but are better able to handle them. I suspect that some of the deeper fears expressed by the phrase ``falling standards'', in society and in the forces, are unfounded.
When the order was considered in another place, on 21 May, the Minister for Defence Procurement made an astonishing statement, which I would be grateful if the Minister for the Armed Forces could endorse—or deny—today, although he may not find it fair to have to respond in that way. He was asked by my noble Friend Lord Burnham if he could assure the House that discipline in the armed forces would in no way be affected by the Human rights Act 1998. The Minister replied
``I am now sure and can tell him that the position is unchanged since the last time we discussed these matters.''
The substance of his argument was that there would be no change. He went on to say
``I have no concerns over these matters.''
That is extraordinary. He said that the Ministry of Defence's plans for the next two years were under review—that is the best way of putting it—
``to ensure that we have all our existing summary discipline procedures in place and that they are all consummate with the requirements of the Human Rights Act.''—[Official Report, House of Lords, 21 May 1999, Vol. 601, C. 267-8.]
I hope that that is found to be the case.
I was astonished by the Minister's assertion because wherever I go commanding officers and others express extreme concern about the effect of the Human Rights Act on military discipline; they are much more worried about that than they are about, for example, homosexuality in the armed forces. Some people argue that article 3 of the European convention on human rights—which the Act implements—on the prohibition of inhuman or degrading treatment or punishment, would cover the supposed exploitation of young recruits by being forced to carry heavy weights on their backs cross-country, for example, and that military personnel who sought to exercise their right to complain would be victimised. Under article 5, the right to liberty and security, no one is to be deprived of liberty save in several specific cases; that would strike at the heart of a commanding officer's power of summary discipline. He would no longer be able to detain a soldier or any other service man or woman.
The right to a fair trail under article 6 has serious implications for the court martial system. On the face of it, that right and the right to the prohibition of discrimination, under article 14, would require the right of access to courts for military personnel to be no less favourable than for civilian personnel, unless the differences in treatment could be justified. There are huge grey areas such as, for example, article 8, which provides the right to respect for private and family life, home and correspondence. Members of the forces are currently forbidden from talking to the press. That prohibition could, under article 10 on freedom of expression, be construed as a deprivation of a human right. Article 14, on the prohibition of discrimination, would apply to the question of homosexuality in the armed forces. All those factors would have an impact on ordinary service life as we know it.
Those are some of the Opposition's concerns about military discipline, which we shall undoubtedly address in the next Armed Forces Bill. In addition, Army Legal Services are dramatically under-resourced. In February 1998, I asked the then Minister for the Armed Forces how many qualified lawyers Army Legal Services employed in the United Kingdom, Germany and elsewhere. He answered that 41 qualified lawyers were employed as Army officers in the United Kingdom, 15 in Germany, and five elsewhere and that the establishment was expected to increase over the next year to approximately 70. That is quite inadequate for the volume of work now coming before the courts. In answers to parliamentary questions, I have received statistics about the number of cases being brought against the Ministry of Defence, and it is very substantial.
The Army legal services branch of the Adjutant-General's Corps does an extremely fine job. I have visited Upavon twice in the past couple of years, and I know how hard the people work there. I hope that the Minister will accept this not as a criticism but as encouragement to ensure that the Army legal services are strengthened substantially as we face an ever-growing burden of legislation.
My final point relates to the consolidation of the three service Acts. In the previous Parliament, I served on the Select Committee on Defence, which was extremely critical of the previous Administration. The Committee considering the most recent Armed Forces Bill, on which I also served, recommended in its special report
``that the Government ensures that the necessary resources and Parliamentary time are made available to allow for the consolidation of Service law before the passage of the next Armed Forces Bill.''
That means that we should expect consolidation to have taken place. However, in a memorandum from the Lord Chancellor's Department prepared on behalf of the Law Commission, we were told the most extraordinary story about how legislation is presented to the House. That memorandum, in annex C, on page 175 of ``The Select Committee on the Armed Forces Bill'', states:
``Substantial consolidation work can be undertaken only by some of the Parliamentary Counsel who are seconded to the Law Commission; and lengthy and complex consolidations may need to be handled by one of the senior draftsmen (of whom there may be only one seconded to the Commission at any one time). It is estimated that it would take a draftsman about two years to complete the consolidation of the three Service discipline Acts if he or she took it over now.''
That was in 1996. It follows that the work could have been completed by now if it had been started in 1996. However, it was started much earlier. In the same memorandum, we are told:
``It has been a shortage of resources which has prevented the completion of the consolidation of the Service discipline Acts, rather than the priorities of the Law Commission . . . Work on the project was begun in July 1991 by a senior draftsman on secondment to the Commission and continued until the time when he returned to the Parliamentary Counsel Office in the summer of 1993. At that time work on the disciplinary provisions relating to the three Services was at an advanced stage.''
We were then told:
``The Law Commission understands that, unfortunately . . . demands on his time generated by current Bills have been such that the time needed to complete the armed forces consolidations never materialises.''
It goes on to say that
``the current proposals relating to courts-martial''
—that is, in the previous Bill—
``would make such substantial changes to the original legislation that consolidation in advance would be wholly inappropriate.''
They started in 1991, realised that it was too much work, and subsequently realised that it was ``wholly inappropriate'' even to try. That is unacceptable for service men and women. Members of our armed forces are in the Balkans with their lives on the line, and we do not have the resources to provide the proper legal framework in which to revise the military law on which they may ultimately depend for their life and safety. I hope that the Minister will put that right. I asked some questions that probed the Lord Chancellor's Department. I hoped that I would have received the answers before the Committee met as they were due at 3.30 pm, but had not arrived by 4.28 pm. I stress that my criticism is not of the Minister but of the system in our country as it relates to the three service discipline Acts.
Given those few remarks flagging up some problems and suggesting subjects to which we will have to return, I repeat the Opposition's support for the continuation of the order.
4.50 pm
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