1. In this memorandum:

"PACE" means the Police and Criminal Evidence Act 1984 (c. 60); and "the Service Discipline Acts" means the Army Act 1955 (3&4 Eliz. 2 c.18), the Air Force Act 1955 (3&4 Eliz. 2 c. 19) and the Naval Discipline Act (5&6 Eliz. 5 c. 53). References to provisions of the Bill or of any Act are given in bold in this memorandum if they:

2. The main purposes of the Armed Forces Bill are to continue in force, and to amend, the Service Discipline Acts. As explained further at paragraph 7 below, the Service Discipline Acts cease to have effect after five years in force, unless renewed by statute. This is currently provided for in section 1 of the Armed Forces Act 1996 (c.46).

3. In connection with the preparation of renewing legislation the practice is to conduct a review to decide what changes, if any, should be made by the renewing statute to the Service Discipline Acts and to other law relating to the Armed Forces. The latest review resulted in proposals to introduce a bundle of measures, which are provided for in the Bill.

4. In addition to the renewal of the Service Discipline Acts (by clause 1 of the Bill) important provisions in the Bill include:

5. This memorandum deals below with the powers of subordinate legislation provided for in the Bill, in the order of the relevant clauses of the Bill. As preliminary points:

6. Clause 1 provides for the Service Discipline Acts to continue in force only until 31 August 2002, unless continued in force by Order in Council. Under clause 1 Orders in Council may continue those Acts in force for periods of not more than twelve months, and not beyond the end of 2006. Parliamentary control of the continuation of the Service Discipline Acts is maintained by a requirement that a draft of an Order in Council under clause 1 must first have been approved by a resolution of both Houses of Parliament (clause 1(4)).

7. The reasons for this provision are historical, relating to Parliament's assertion of control over the Army. Both the Army Act 1955 and the Air Force Act 1955, as originally enacted, provided that they were to continue in force for one year only, renewable by Order in Council for successive periods of one year. After 5 years in operation, however, the Service Discipline Acts would expire unless renewed by statute (section 226(2) to (5) of the Army Act as originally enacted and section 224 (2) to (5) of Air Force Act, as originally enacted). The Naval Discipline Act 1957, as originally enacted, was not subject to the same limits, but these were first applied to the Naval Discipline Act by section 1 of the Armed Forces Act 1971. Since the 1971 Act almost exactly the same time limits have continued to be applied to all the Service Discipline Acts by successive Armed Forces Acts. The current provision is in section 1 of the Armed Forces Act 1996, which provides for Orders in Council to continue the Service Discipline Acts in force until the end of 2001.

8. There are police units (referred to below as "the Service police") within each of the Armed Forces. At present their powers, and those of commanding officers, to prevent and investigate offences under the Service Discipline Acts are not defined in legislation. Their powers are under the Prerogative. One of the main aims of the Bill is to introduce statutory provision setting out the powers of entry which they may exercise over persons subject to Service law and their living accommodation in preventing or investigating Service Discipline Acts offences.

9. The new provisions are in Part 2 of the Bill. They are based on the provisions of Parts 1 to 3 of PACE, which relate to the powers of entry, search and seizure of civilian police.

10. Under section 113(1) of PACE the Secretary of State has power by order to direct that any provision of PACE which relates to investigations of offences conducted by police officers or to persons detained by the police is to apply with modifications in relation to the investigation of Service Discipline Act offences or to persons under arrest under any of those Acts. However, the differences between the PACE provisions and those intended in relation to Service Discipline Act offences are in some cases substantial and, it is considered, probably go beyond "modifications". In particular, it is intended that, in addition to powers for the Service police, there should be limited reserve powers for commanding officers to deal with certain types of emergency, where Service police are not available.

11. Part 2 of the Bill therefore sets out in detail the main Service police powers and all the intended reserve powers of commanding officers (principally clauses 2, 4, 5, 7, 9 and 10 of the Bill).

12. In addition, Part 2 contains provision to make subordinate legislation related to specified PACE powers. While the main powers are set out in the Bill, the powers in Part 2 to make subordinate legislation relate to less important or ancillary provisions of PACE, particularly ones which may need to be amended more frequently in the light of changing circumstances.

13. In order to allow a more flexible approach to drafting than under the existing power in section 113(1) of PACE, the powers to make subordinate legislation conferred by Part 2 of the Bill generally allow the making of provision equivalent to a specified provision of PACE, subject to modifications. By contrast, the existing power under section 113(1) provides for the application of PACE provisions, subject to modifications. The new provisions are explained in more detail in paragraphs 16 to 28 below.

14. All orders and regulations which may be made by the Secretary of State under Part 2 of the Bill will be subject to negative resolution procedure (clause 37(3)). Orders under section 113(1) of PACE are subject to the same procedure (section 113(13)).

15. In consequence of the new provision in Part 2 of the Bill, clause 13(2) of the Bill amends section 113(1) of PACE so as to exclude from its application those provisions of PACE which cover the same ground as provisions of Part 2.

16. Clause 3 is supplemental to clause 2, which sets out the circumstances in which service police may stop and search persons reasonably believed to be subject to the Service Discipline Acts and certain vehicles. Under clauses 3(3) and (4) the Secretary of State may by order make provision in relation to such searches. He may make provision equivalent to specified provisions of section 2, and the whole of section 3, of PACE, or apply those provisions. In either case he may make modifications. Sections 2 and 3 deal with such matters as information to be given to a person searched, and the details of searches to be recorded by the police. Differences in circumstances between civilian police searches of members of the public and Service police searches of Service personnel may justify considerable modifications in relation to these provisions.

17. Clause 5 enables Service police to obtain a warrant to search the living accommodation of persons subject to the Service Discipline Acts. Application is to a judicial officer, who is a suitably qualified officer appointed in accordance with the Service Discipline Acts. A warrant may only be given in respect of certain offences. These are stated in clause 5(2). Under clause 5(2)(c) the Secretary of State may by order specify other offences in relation to which a warrant may be sought.

18. Under clause 5(10) the Secretary of State is given two further order-making powers:

19. Clause 6 gives the Secretary of State power by order in relation to warrants to search for "excluded material" or "special procedure material". These are generally confidential material, such as business and medical records. The expressions have the same meaning in the Bill as in PACE. An application for a warrant in respect of such material cannot be made under the normal procedure under clause 5.

20. Clause 6(1) empowers the Secretary of State to prescribe the means of applying to a judicial officer for a warrant in respect of such material. Clause 6(2)(a) provides that the order-making power may be used to apply provisions of Schedule 1 to PACE. That Schedule relates to applications under PACE for access to excluded or special procedure material. For the same reason as is stated at paragraph 18(a) of this memorandum, the Secretary of State may by order permit the use of live television links (or similar arrangements) for hearing an application for a warrant under clause 6 (clause 6(2)(b)).

21. Clause 7 empowers commanding officers to authorise in limited circumstances a search of accommodation without a warrant, where a warrant under clause 5 would otherwise be needed. If anything is seized as a result of such a search, the search and seizure must be reviewed by a judicial officer (clause 8(1)). Clause 8(2) empowers the Secretary of State to prescribe by order the powers and duties of a judicial officer in such a review. It is envisaged that these may include, for example, matters which the judicial officer should take into consideration in deciding whether it was proper to order the search, a power to direct the return of things seized and power to direct their disposal in some other way.

22. Under clause 9(7) a commanding officer will have limited power to authorise entry to the accommodation of someone in his command. The power is primarily to allow the exercise of powers of arrest under the Service Discipline Acts. It may need to be exercised in an emergency, when the commanding officer is not available. Clause 9(10) accordingly permits the Defence Council to make regulations providing for the delegation of the power by commanding officers. Such regulations will essentially be administrative rules for the internal operation of the Armed Forces. The regulations are not subject to any parliamentary procedure.

23. Clause 10 deals with powers to search persons arrested under the Service Discipline Acts. Under the Service Discipline Acts, powers of arrest may be exercised in defined circumstances by Service personnel who are not Service police. When such an arrest is made, the commanding officer of the person arrested will under clause 10(5) have limited powers to order the person arrested to be searched by the person carrying out the arrest. Like the powers of a commanding officer under clause 9 (explained at paragraph 22 above), his power under clause 10 to authorise the search of a person arrested may need to be exercised in an emergency, when the commanding officer is not personally available. Clause 10(15) accordingly permits the Defence Council to make regulations providing for the delegation by commanding officers of their powers under clause 10. Such regulations will essentially be internal rules for the operation of the Armed Forces. They are not subject to any parliamentary procedure.

24. Under clause 10(13) and (14) the Secretary of State may by order make provision for the search of premises where a person was when arrested, or immediately before he was arrested, under the Service Discipline Acts. He may do so by making provision equivalent to the relevant provisions of section 32 of PACE, or by applying those provisions, in either case with modifications. Relevant provisions of section 32 of PACE include the power to search premises, limits on that power and provision dealing with the search of premises consisting of two or more separate dwellings.

25. Clause 11(1) and (2) empower the Secretary of State by order to make provision equivalent to sections 18 to 21 and 22(1) to (4) of PACE; in each case subject to modifications. In particular:

26. Clause 12(1) empowers the Secretary of State to provide by regulations for the disposal of property which comes into the possession of the service police or of a commanding officer in connection with the investigation of an offence. Civilian courts have power under section 1 of the Police (Property) Act 1897 to deal with property held by police (60 & 61 Vict. c. 30). Service courts and judicial procedures are different from civilian courts and judicial procedures in a number of respects. In particular, as regards the disposal of property, many cases in the Armed Forces are dealt with summarily by commanding officers, instead of by courts. Moreover, courts-martial are not standing courts and so are less suited to dealing with, for example, contested applications for orders in relation to property. Clause 12(2) expressly allows for the provision that may be made under clause 12(1) to enable Service courts, judicial officers or commanding officers to dispose of property held by Service police or commanding officers in connection with an investigation.

27. Clause 13(3) extends section 113(3) of PACE so as to require the Secretary of State to issue codes of practice for Service police and others who exercise the powers conferred by Part 2 of the Bill. Under section 113(5) of PACE the Secretary of State may by order bring into operation such a code of practice, if he lays a draft of the code before both Houses of Parliament. Under section 113(13) the order is a statutory instrument and subject to annulment in pursuance of a resolution of either House of Parliament.

28. The Service Discipline Acts provide for parts of those Acts to be applied by regulations of the Defence Council to passengers on Service ships and aircraft (sections 208A of the Army Act 1955 and section 187 of the Naval Discipline Act 1957). Clause 16(3) provides similarly for the application by Defence Council regulations of Part 2 of the Bill to such passengers. Defence Council regulations are not subject to any parliamentary procedure.

29. Clause 17 introduces Schedule 1. Paragraphs 9 and 12 of Schedule 1 amend the Naval Discipline Act 1957 to provide for summary trial of naval officers (summary trial of an officer is already possible in the Army and the Royal Air Force). Summary trial of a naval officer may under the new provisions be by the "appropriate superior authority". Paragraph 13 of Schedule 1 amends section 52F(2) of the Naval Discipline Act 1957 to enable the Defence Council to make regulations under that section as to the limits on punishments which may be imposed by an appropriate superior authority, and as to who may act as an appropriate superior authority. The regulations are not subject to any parliamentary procedure.

30. Clause 20 empowers the Secretary of State to provide by order for warrant officers to be eligible to sit on summary appeal courts. These courts were established on 2^nd October 2000 under changes to the Service Discipline Acts made by the Armed Forces Discipline Act 2000. They hear appeals against decisions in summary proceedings under the Service Discipline Acts. An order under this clause is subject to annulment pursuant to a resolution of either House of Parliament (clause 37(3)).

31. The reasons why the matter has been left to subordinate legislation are:

32. Clause 21: in the civilian criminal justice system, certain sentences imposed by the Crown Court may be referred by the Attorney General for review by the Court of Appeal on the ground that he considers the sentence to be unduly lenient (section 36 of the Criminal Justice Act 1988). The power of review applies to offences triable only on indictment, and also to any cases or offences of a description specified by order made by the Secretary of State. Clause 21 makes corresponding provisions in each of the Service Discipline Acts in relation to courts-martial. These similarly empower the Secretary of State to specify by order further descriptions of offences to which the powers of review will apply. The purpose is to enable the powers under the Service Discipline Acts to be extended in line with any extensions of the power under the 1988 Act (new sections 113B(1)(a) or (2)(b) of the Army Act 1955 and the Air Force Act 1955, inserted by clause 21(1), and section 71AB(1)(a) or (2)(b) of the Naval Discipline Act 1957, inserted by clause 21(2)).

33. An order under the new powers will be made by statutory instrument and will be subject to annulment by resolution of either House of Parliament (sections 113B(4) and (5) of the Army Act 1955 and Air Force Acts 1955 and section 71AB(4) and (5) of the Naval Discipline Act 1957, also inserted by clause 21(1) and (2) respectively). The same procedure applies to orders under the corresponding power in the 1988 Act (by section 35(4) and (5) of that Act).

34. The new provisions added by clause 21 to each of the Service Discipline Acts also empower the Secretary of State to make regulations in relation to references and applications under the new provisions. It is expressly provided that he may make provision equivalent to the provisions in Schedule 3 to the 1988 Act, which are supplementary to the power of review in section 36 of that Act. The powers to make regulations are to allow changes to reflect any future changes in Schedule 3 and to give flexibility in changing the detailed requirements for references and applications. The regulations will be by statutory instrument subject to annulment by resolution of either House of Parliament (sections 113C(8) and (9) of the Army Act 1955 and the Air Force Act 1955 and section 71AC(8) and (9) of the Naval Discipline Act 1957, inserted by clause 21(1) and (2) respectively).

35. Clause 25 inserts into each of the Service Discipline Acts new sections conferring power to compel the attendance of witnesses at courts-martial. Subsection (3)(c) of each of the inserted sections refers to the Secretary of State's powers under sections 103 of the Army Act 1955 and the Air Force Act 1955, and section 58 of the Naval Discipline Act 1957. Those sections empower the Secretary of State to make rules relating to courts-martial. Such rules are made by statutory instrument subject to annulment by resolution of either House. The new provisions also refer to regulations made by the Defence Council (these are not statutory instruments and are not subject to any parliamentary procedure). However, in making these references, the new provisions do not extend the powers to make rules or Defence Council regulations, nor do they require the exercise of those powers. They are intended only to identify the means by which provisions may be, or have been, made and are therefore only referred to here for completeness (new sections 101A(3)(c) of the Army Act 1955 and the Air Force Act 1955, and section 65A(3)(c) of the Naval Discipline Act 1957, inserted by clause 25(1), (2) and (3) respectively).

36. Clause 26 makes provision in relation to Service courts corresponding to section 19(1) and (2) of the Prosecution of Offences Act 1985. Under section 19 the Lord Chancellor may make regulations under which a party to criminal proceedings in the civilian courts may be ordered to pay costs where unnecessary or improper action taken by him results in another party incurring costs. Clause 26 enables the Secretary of State by regulations to make similar provision in respect of Service courts. The regulations are subject to annulment pursuant to a resolution of either House of Parliament (clause 37(3)). Regulations of the Lord Chancellor under section 19 of the 1985 Act are subject to the same parliamentary procedure (section 29(1) of the 1985 Act). The purpose of using regulations is to allow the service provisions to remain consistent with those applied to civilian courts by regulations of the Lord Chancellor.

37. Clause 27 makes provision in relation to Service courts corresponding to section 19A of the 1985 Act. Section 19A empowers civilian courts to make costs orders in certain circumstances against the legal, or other representatives of a party to proceedings. Under clause 27, the part of the costs to which an order may relate is to be determined in accordance with regulations of the Secretary of State. This corresponds to the Lord Chancellor's power to make regulations under section 19A. In both cases the regulations are subject to annulment by resolution of either House of Parliament (clause 37(3) of the Bill and section 29(1) of the 1985 Act).

38. Clause 28(2) extends the power to make regulations under clauses 26 and 27. This is to deal primarily with the problem of identifying, in relation to the Armed Forces, the costs of the prosecution as a party to the proceedings. In the civilian system, criminal prosecutions are brought by the Crown Prosecution Service, and what costs they have incurred is a comparatively simple issue. The Services' prosecuting authorities are individual officers, without a separate budget. It is therefore necessary to determine which costs may be regarded as those of the prosecution.

39. Clause 28(4) and (5) extend the Secretary of State's powers to make rules relating to courts-martial, to permit those rules to provide for the jurisdiction of courts-martial under clauses 26 and 27 to make costs orders to be exercised by the judge advocate sitting alone. The judge advocate of a court-martial decides all questions of law, practice and procedure. Rules relating to courts-martial are made by statutory instrument subject to annulment by resolution of either House (under sections 103(5) of the Army Act 1955 and the Air Force Act 1955, and section 58(5) of the Naval Discipline Act 1957).

40. Clause 29 introduces Schedule 4. Once an accused has been charged, he may be released from custody subject to conditions to ensure his attendance at a hearing. There is no power in the current legislation to vary or discharge those conditions, but such a power is available in the civilian system. Paragraph 2 of Schedule 4 amends the Army Act 1955 and the Air Force Act 1955 to allow the variation of conditions that have been imposed. Paragraph 9 has the same effect in respect of the Naval Discipline Act 1957. Paragraphs 5(2) and 11 of Schedule 4 amend respectively sections 75M of the Army and Air Force Acts 1955 and section 47N of the Naval Discipline Act 1957 to allow the Secretary of State to make rules dealing with the procedure for applications to vary conditions. Under sections 75M(3) of the Army and Air Force Acts 1955 and under section 47N(3) of the Naval Discipline Act 1957 rules are made by statutory instrument subject to annulment pursuant to a resolution of either House of Parliament.

41. Paragraphs 6 and 7 of Schedule 4 add a new Schedule (Schedule 1A) to each of the Army and Air Force Acts 1955. These Schedules give Standing Civilian Court magistrates powers to order an arrest or to deal with custody applications during a trial (only the Army and the RAF have Standing Civilian Courts, to deal primarily with the large number of dependants outside the United Kingdom of members of those two Services). Paragraph 5(3) of Schedule 4 amends section 75M of the Army and Air Force Acts 1955. It thereby empowers the Secretary of State to make rules allowing the use of live television and other links for the purpose of satisfying the requirements of both Schedules 1A for a person arrested to be brought before a magistrate of a Standing Civilian Court. As mentioned in paragraph 40 of this memorandum, rules under section 75M are made by statutory instrument subject to annulment pursuant to a resolution of either House of Parliament (section 75M(3)).

42. Clause 30(1) empowers the Secretary of State by order to make provision under which a person appealing against conviction or sentence by a Service court may be released on bail pending the outcome of the appeal. An order under clause 30 will deal with such matters as the court or person to whom application for release from custody is to be made, the required manner of application, the criteria to be applied in making a decision on bail, and conditions which may be imposed on release. These, and other matters, are listed in clause 30(3).

43. Clause 30(4) gives supplementary powers. In particular, it permits the conferring of powers of arrest and the creation of offences. It is envisaged that these powers may be used in relation to non-compliance with conditions that may be imposed on release. It also permits provision to be made equivalent to that in the civilian legislation for different types of civilian courts. It is envisaged that an order under clause 30 will closely follow civilian legislation, but taking into account that, among Service courts, Standing Civilian Courts are similar to magistrates' courts and courts-martial to the Crown Court.

44. Clause 30(4)(e) allows the amendment by order of any of the Service Discipline Acts, the Courts-Martial (Appeals) Act 1968 (c.20) or the Armed Forces Act 1976 (c.52). This power will be needed, for example, in relation to the determination of the duration of a sentence. The general rule is that a sentence runs from the date on which the sentence is passed. This appears, for example, in paragraph 13 of Schedule 3 to the Armed Forces Act 1976. An exception to the general rule may be needed where a person has been sentenced but is released from custody pending appeal. This would require an amendment to the primary legislation.

45. Under clause 37(2)(b) affirmative resolution procedure will apply to an order under clause 30 if it makes a textual amendment to any Act (the power to do so, in clause 30(4)(e), is referred to in paragraph 44 of this memorandum). In any other case, however, an order under clause 30 will be subject to negative resolution procedure (clause 37(3)).

46. Clause 32 introduces Schedule 5. Paragraphs 3 and 4 of that Schedule insert in the Ministry of Defence Police Act 1987 (c.4) new provisions concerning disciplinary procedures for the Ministry of Defence Police ("MDP"). Paragraph 3 inserts a new section 3A in the 1987 Act, creating a power for the Secretary of State to make regulations establishing disciplinary procedures for the MDP. Section 3A(2) will specify that the regulations may provide for decisions on these matters to be taken or reviewed by persons other than the Secretary of State or the chief constable or persons acting on their behalf, and for the appointment of such persons. This is to allow disciplinary decisions to be made by persons outside the Ministry of Defence and the MDP. The Bill does not prescribe what the procedures should be, so that they can be altered by statutory instrument as the need arises. The intention is to adopt procedures aligned with those of the Home Department police forces, and then to keep track of changes in these procedures. Regulations under the new section 3A will be made by statutory instrument (section 3A(1)) subject to the negative resolution procedure (section 3A(4)). Disciplinary regulations for the Home Department forces are subject to the same procedure (section 50(8) of the Police Act 1996 (c.16)).

47. Paragraph 4 of Schedule 5 inserts a new section 4A in the 1987 Act, providing members of the MDP who have been subject to disciplinary proceedings with the right of appeal to a tribunal. Section 4A(2) will empower the Secretary of State to make by regulations provision on a number of matters related to the appeals. The general purpose of this power is to allow the arrangements for the MDP to be brought as close as possible to those which apply to appeals by members of Home Department police forces. The provision for Home Department forces is made by or under section 85 of the Police Act 1996 and the related Schedule 6 to that Act. The new section 4A(2)(a) of the 1987 Act will permit provision equivalent to Schedule 6 to the 1996 Act. The new section 4A(2)(b) is similar to the power of the Secretary of State in section 85(3) of the 1996 Act to make rules on appeals procedure for Home Department forces. The new section 4A(2)(c) and (3) are similar to the power to make rules under section 85(4) of the 1996 Act. Regulations under the new section 4A will be made by statutory instrument (section 4A(2)) subject to negative resolution procedure (section 4A(6)). Rules under section 85 of the 1996 Act must be laid before Parliament after being made (section 85(5) of the 1996 Act).

48. Clause 33(3) enables the Secretary of State by order to make in respect of the Armed Forces provision equivalent to that made by any "criminal justice enactment" as defined in subsection (1). "Criminal justice enactment" is defined by reference to the subjects listed in clause 33(2). These include police powers, prosecutions, bail and evidence and procedure in criminal courts. They may be extended by the Secretary of State to include such other matters relating to criminal justice as he may prescribe by order (clause 33(2)(h)). The purpose of this power is to ensure that changes in criminal justice which should be applied to the Armed Forces do not have to wait until the next armed forces Bill in cases where there may be some doubt about whether a particular piece of legislation falls within one of the categories stated in clause 33(2)(a) to (g).

49. The definition of "criminal justice enactment" refers (in clause 33(1)(a)) to Acts passed after or in the same Session as the Bill. Clause 33(7) treats Chapter II of Part V of the Powers of Criminal Courts (Sentencing) Act 2000 (c.6), which relates to the detention and custody of young offenders, as being comprised in such an Act.

50. Legislation often operates by way of amendment, or can only be effectively applied together with subordinate legislation which supplements it. Clause 33(3) accordingly also provides for the Secretary of State to be able to make provision equivalent to enactments amended by the criminal justice enactment in question and provision equivalent to relevant subordinate legislation. The limit on the power is that the provision made by the Secretary of State must be in consequence of the relevant criminal justice enactment (clause 33(3)).

51. In order to be able to make provision equivalent to that in a criminal justice enactment, it may be necessary to amend inconsistent legislation which at the time applies to the Armed Forces. This is provided for in clause 33(6)(c). That paragraph extends to amending the relevant criminal justice legislation in question. This might occasionally be justified as being in consequence of the relevant criminal justice enactment (as required by clause 33(3)). For example, it might be justified where the simplest way to apply legislation to the Armed Forces would be to amend it to add a reference to courts-martial.

52. Orders under the power will normally be subject to the negative resolution procedure (clause 37(3)(a)). There are two exceptions. These are:

In these two cases, orders will be subject to the affirmative procedure and must be approved by both Houses of Parliament before being made (clause 37(2)).

53. The clause is intended to enable the Secretary of State to keep the system of investigation, trial and punishment under Service law as consistent as possible with the corresponding procedures in the civilian system. At present, the principal means of amending Service law is in the five yearly Armed Forces Bills. This means that differences can exist for a long period before an opportunity to make the relevant amendments of Service law arises.

54. Clause 34 creates a power to order the testing of persons subject to the Service Discipline Acts for alcohol or drugs, following an incident which is considered by a designated officer to have caused, or to have created a risk, of death, serious injury or serious damage. The clause enables the Defence Council to provide by regulations:

55. These Defence Council regulations are not subject to any parliamentary procedure. The purpose of the testing power is to help ensure that the cause of incidents is established and not to give rise to prosecutions for failing a test. Clause 34(6) provides that the result of tests shall not be admissible as evidence against any person in a Service prosecution.

56. Clause 35 defines "drug" and "sample" for the purposes of clause 34. It enables the Secretary of State by order to provide for additional drugs, or descriptions of drug, to be within the power to test (clause 35(2)(b)). Clause 35(3)(c) empowers him by order to provide that samples other than those specified may be taken (but the power is restricted to samples which can be taken from the mouth or by non-invasive samples, such as saliva or perspiration: clause 35(5)). Orders under clause 35 are subject to negative resolution procedure (clause 37(3)(a)).

57. Clause 37 sets out the requirements for orders and regulations made by the Secretary of State under the Bill. The requirements are specified in this memorandum by reference to each of the individual powers. It also enables orders and regulations made by the Secretary of State to include incidental, consequential or transitional provision.

58. Clause 38(1) has the effect of extending to clause 20 the existing power in each of the Service Discipline Acts to modify the provisions of the Act in their application to the Channel Islands and the Isle of Man. Clause 38(2) confers power to direct by Order in Council that any of the provisions mentioned in subsection (3) are to extend to the Channel Islands and Isle of Man subject to modifications. In accordance with the normal practice in relation to the Islands, these Orders in Council are not subject to any parliamentary procedure.

59. Clause 41(2) makes provision for much of the Bill to come into force on such day as the Secretary of State may by order appoint. Under clause 41(5) certain provisions relating to the Ministry of Defence Police will come into force as respects Scotland on a date to be appointed jointly by the Scottish Ministers and the Secretary of State. By virtue of clause 41(7), commencement orders may include transitional provisions or savings.