Justice 1 Committee, 27 Mar 2001

Meeting date: Tuesday, March 27, 2001

Official Report 323KB pdf

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Armed Forces Bill

We now move to item 3 on the agenda. We have with us the Deputy Minister for Justice, who will speak to the memorandum on the Armed Forces Bill.

Before I start, may I introduce Gerald Byrne from the Scottish Executive police division and Alan Williams from the Scottish Executive office of the solicitor. They will help me out if I get stuck.

An armed forces bill is required every five years to extend the acts that provide for discipline in the armed forces. Those acts also contain other measures relating to defence. The bill that is currently before Westminster contains provisions on the search powers of armed forces policemen and on the updating of the system of courts martial. It also contains provisions that relate to the jurisdiction of the Ministry of Defence police. Those provisions require the consent of this Parliament.

The details of the proposals are in the memorandum that accompanies the bill. Briefly, the Parliament's agreement is sought on the Ministry of Defence police having jurisdiction: to meet a request from the local chief constable for policing assistance in the vicinity of Ministry of Defence land; to act in response to a request for assistance with a particular incident or operation from a member of the local force anywhere in the local force area; to act in an emergency, without prior request from a member of the local force, when there has been an offence involving violence against a person, or when action is necessary to save life or minimise injury; and finally, to act as a constable when on secondment or loan to a local force.

The bill also allows the chief constable of a local police force to request assistance from the Ministry of Defence police to meet special demands on his resources anywhere in the force area. That measure does not extend the jurisdiction of the MDP, but it allows the MDP to provide officers or other resources by way of assistance. Under the bill, the measures would commence for Scottish police forces, or in Scotland, by a joint order made by the Secretary of State for Scotland and Scottish ministers.

We believe that those proposals should extend to Scotland. Most of them would be used only at the request of Scottish forces or constables and would allow them to take advantage of useful additional resources when they wished and required. We also think that the MDP should be able to act in emergencies when the local police cannot attend quickly enough. We do not believe that trained MDP officers—possibly in uniform—should have only the powers of normal citizens to react to incidents involving violence and personal injury. However, that power should be used only rarely. MDP estimates are of between 12 and 20 incidents a year in Scotland.

Although the Scottish Parliament may be able to legislate to introduce these measures in Scotland, the Executive believes that the measures in the Westminster bill should be extended to Scotland as part of a coherent UK-wide jurisdiction. The interest of the Scottish Parliament and Executive is recognised in the giving to Scottish ministers of a joint power with UK ministers to commence the provisions in Scotland.

In addition to these measures, we expect an amendment to be tabled later this week that will place the inspection of the MDP by Her Majesty's inspectorate of constabulary on a statutory footing. Currently, the MDP invites inspection on a voluntary basis. The expected amendment follows the Secretary of State for Defence's undertaking to look kindly on such a proposal during select committee consideration of the bill in the House of Commons. In anticipation of that amendment, we have changed the Sewel motion slightly from the version that I sent to members last week. I hope that that was communicated to the convener yesterday.

The Sewel motion now reads:

"That the Parliament agrees the principles contained in the provisions of the Armed Forces Bill as they relate to the Ministry of Defence Police in Scotland and that the Scottish Ministers should consent to the measures on jurisdiction being commenced in Scotland; and agrees that the relevant provisions to achieve those ends in the Bill should be considered by the UK Parliament."

You may not be able to answer this, minister, but will the Sewel motion be able to be debated in the chamber, or will it simply be voted on?

My understanding is that it is in the business bulletin for Thursday, which is when it will be moved formally.

So this is the only opportunity that the Parliament will have to discuss the provisions.

That is my understanding, but I have not checked that this morning.

I do not know about other members, but my concerns centre around items 4(iv) and 4(vi) of the Executive memorandum, which indicate that Ministry of Defence police are being given powers that are in effect outwith the control or request of the local constabulary. The MOD police have existed for some time, so why has it been thought necessary to implement such powers now? Have problems arisen that have led to this?

There have been instances. One example, which was referred to in evidence to the select committee, involved an attack on a United States Air Force officer. A Ministry of Defence policeman intervened, but appeared to do so outside his legal ability. The key to it lies in the comment that Ministry of Defence police have been around for a while. The statute under which they operate—the Ministry of Defence Police Act 1987—is 13 years old. Ministry of Defence police have 13 years of experience and there may have been changes in the way that they operate. They feel that their officers can sometimes be put in difficult positions, which would be alleviated by the measures contained in the bill.

Item 4(vi) says that there is a proposal in the bill

"to give MDP jurisdiction in cases where defence personnel are victims."

Does that imply that, in such cases, civilian police would lose their jurisdiction?

I do not think that it does; it gives Ministry of Defence police jurisdiction too. The measure is a clarification. There is a view that Ministry of Defence police have jurisdiction in cases where defence personnel are victims, as they do in cases where defence personnel are involved in criminal activity. However, there has been some difference of opinion in the past—this is an opportunity to clarify the situation.

Clarify for me what happens when both forces are involved in such a situation.

In every area where the MDP are involved there is a memorandum of understanding with local police forces. Protocols have been agreed on how matters will be handled.

Is that a matter for local decision? If police in both forces are involved in a case such as that described in item 4(vi), someone presumably has to be in charge. Who is generally in charge? Is it the senior officer of whichever force is present?

The memorandum of agreement would be made with the chief constable for that area. The force in charge of the crime would be the force that is best placed to deal with it. The memorandums of agreement are devised with chief constables in the areas in which the MDP are operational. That would continue to be the case.

Sorry, I am not familiar with all the bill's provisions and the memorandum of understanding is not written into the bill. Does that mean that we could have a situation where the MDP say, "The bill gives us jurisdiction. We are exercising that jurisdiction," regardless of a local objection?

That has not been the experience of the past; indeed, when the Association of Chief Police Officers in Scotland gave evidence to the select committee in Whitehall, it was asked about relations between local forces and the MDP. The reply was that the relationship was excellent in all circumstances.

Is it normal for Ministry of Defence police to be armed?

They are entitled to carry arms—that is also covered in the memorandum of understanding and the protocols. Normally, they will carry arms on Ministry of Defence land. However, if they are not on Ministry of Defence land—for example, if they are travelling between two MOD establishments—their firearms must be locked away securely.

I see that the local force could call upon them for assistance. Would they normally be armed when that happened?

No, their firearms would normally be locked away.

So, in an emergency, if they had to leave a Ministry of Defence site, they would first lock away their arms.

Their vehicles have the facility to lock firearms away, so that would not take up a great deal of time.

The Executive note refers to there being between 12 and 20 incidents a year in Scotland. What was the nature of those incidents? You referred to a case in England involving an American serviceman, but what incidents have there been in Scotland?

One of the changes that has taken place in the way in which the MDP operate arises from a change in the way that MOD establishments operate. They tend to have few personnel, so the MDP are a more mobile force and are less tied to a particular establishment than they were 13 years ago. The suggestion is that they might see a violent assault when travelling between two defence establishments. They are police officers in uniform, but as things stand in statute, they would have no greater power to intervene than you or I would in such circumstances. Members can imagine that it would be puzzling for a victim of an assault if someone who appeared to be a police officer in uniform did not respond in the way that the victim would expect. The provision would allow the officer to respond as a police officer would in such circumstances. The nature of the incident is defined—it must involve violence or the saving of a life.

It would be serious matters.

It would be incidents of violence or where a life was at stake.

The Executive memorandum talks about officers who are "possibly in uniform". What does that mean? Will it be different when officers are off duty and out of uniform?

If they were not in uniform, they would have to identify themselves in another way. However, if they were off duty, the circumstances would be different. We are talking about circumstances where they are on duty but not on Ministry of Defence land.

So, at such times they would have to show their warrant card or something.

Yes.

Is it normal for Ministry of Defence police officers to operate in a covert—or plain-clothed—manner?

It is our understanding that the patrols are mainly in uniform.

Do they do covert operations that mean that they would be in plain clothes?

Our understanding is that that would be unusual, but if Mr Matheson wishes I would be happy to get back to him in writing with a fuller answer.

That would be helpful.

Are there any further questions?

I have a brief question. Is there much interchangeability between MDP officers from bases south of the border and those from bases north of the border? In such cases, do officers who are assisting local constabularies have any problems understanding the differences between Scottish and English law?

That is a concern, in that they are a UK police force, so officers will be transferred from one posting to another and that could mean that they transfer from a posting in England to a posting in Scotland. That was addressed in the select committee evidence that was taken in Whitehall—assurances were given that training is available to officers. It is not a new aspect of their service. Service personnel are already subject to Scots law while they are resident in Scotland and the force is already delivering the training requirement. It is important, but it ought not to pose a problem.

Finally, my understanding is that ACPOS fully approves of the measure. Is that correct?

ACPOS supported it in its evidence. Other bodies that represent the police—the Police Federation, for example—have raised concerns, such as the one that Mr Gallie mentioned. However, the evidence is that the relationship between the local police forces and the MDP is excellent. In general, there is support for the changes.

If MOD police were operating in a covert manner, would they have to work under the provisions of the Regulation of Investigatory Powers (Scotland) Act 2000?

Yes.

You have indicated that some of the other police organisations were not 100 per cent happy with the bill or with certain provisions of it. As you explained, the bill is subject to a Sewel motion, which means that this is the only scrutiny that it will get in the Parliament. There will be no opportunity for anyone to think through the particular consequences of the enactment of the bill in Scotland, in so far as it relates to devolved areas. Was any thought given to making the proposals the subject of separate legislation? I presume that the clauses are already there, so to put them in a Scottish bill would not have strained the resources of the justice department too much.

Consideration was given to that. However, we would have required a legislative vehicle to allow us to do that and the likely outcome would have been a difference—at least for a period—between the jurisdictions in Scotland and in the rest of the UK. We felt that the MDP was a UK police force, as are the British Transport Police, so it made sense that they operate in a UK-wide jurisdiction. If they did not, it would exacerbate rather than alleviate the kind of concerns that we discussed following Mr Gallie's question. We felt that the provision ought to be scrutinised in the Parliament—which is what is happening today—and that Scottish ministers ought to have a role in the commencement of the provisions. That is why the Sewel motion seemed to be the most appropriate vehicle.

If there are no further questions, I thank the minister and his officials for their attendance.