Armed Forces (Specified Aviation and Marine Functions) Regulations 2018

Earl Howe Excerpts

Wednesday 10th October 2018 Lords Chamber

Moved by

[Earl Howe]

That the draft Regulations laid before the House on 24 July be approved.

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, the background to this statutory instrument is as follows. At the moment, a commanding officer can require a person to take an alcohol or drug test if the commanding officer has reasonable cause to believe that they are committing a service offence by performing a safety-critical duty while over a set alcohol limit, or impaired by drugs or alcohol. A commanding officer has similar powers if they believe that a civilian subject to service discipline has committed similar offences under legislation relating to safety in shipping and civil aviation. This power and the linked offences help deter or detect the misuse of alcohol or drugs by those performing safety-critical duties, and so help prevent accidents. However, these powers are aimed at gathering evidence for a possible prosecution, hence the need for a commanding officer to have “reasonable cause to believe” that an offence has been committed.

When an accident happens, it may be important to determine whether anyone involved had been misusing alcohol or drugs, even if the commanding officer does not have any immediate cause to believe that an offence has been committed. Section 2 of the Armed Forces Act 2016 amends the Armed Forces Act 2006 to allow a commanding officer to also require a member of the Armed Forces, or a civilian subject to service discipline, to co-operate with a preliminary test for drugs or alcohol after an accident. Importantly, in these circumstances a person may be tested without the need for suspicion that an offence has been committed. This gives commanding officers the power to test those who performed aviation or marine functions relating to an aircraft or ship involved in an accident. They also apply to anyone who performed a safety-critical function connected to any serious accident. “Serious” in this context means an accident which resulted in or created a risk of death or serious injury to any person, serious damage to any property or serious environmental harm. This will improve our investigations of such accidents.

It is important that accidents in the military environment are investigated thoroughly with a view to contributory factors being identified and appropriate punitive or remedial action being taken. The test will be carried out by the service police, and the results of a preliminary test can be used in support of criminal and non-criminal investigations. The tests will mainly support service inquiries, but they may be used in any type of investigation arising from an aviation or marine accident or any other serious accident. The relevant aviation and marine functions must be specified by regulations made under the amendments in the 2006 Act. The safety-critical functions are already set out in the existing offences and powers that I mentioned.

The draft regulations we are considering today specify these aviation and marine functions and are based largely on existing safety-critical duties relating to aviation or shipping. The duties specified in the regulations reflect the wide range of duties undertaken in a military environment that are linked to aircraft or ships: for instance, maintenance; acting as crew on an aircraft or ship; loading and unloading fuel, cargo and weapons; and conducting hazardous operations such as parachuting or diving. The duties specified in regulations include similar functions carried out by civilians subject to service discipline. This would include, for example, any civilian working on an aircraft or ship overseas.

In the event of an accident, a commanding officer may require a person to co-operate with preliminary testing if he or she was carrying out, or had carried out, a specified function at the time of—or in some situations before—the accident. As I said, the testing will be carried out by the service police. It will be an offence for an individual without reasonable excuse to fail to provide a sample when required to do so. Reasonable excuse could include, for example, a medical condition that prevented a person from providing a breath sample.

We hope, of course, that serious accidents will not happen and that there will be no need to apply these regulations. But the very nature of military activity is, by necessity, dangerous, and our people are exposed frequently to risk. It is important that, in the event of a serious accident, we uncover whether alcohol or drugs may have contributed to the cause of an accident to enable appropriate corrective action to be taken. I beg to move.

[Baroness Smith of Newnham (LD)]

My Lords, I was nominated to speak from the Front Bench this evening and have very little to say on this matter. The regulations seem to be admirably sensible and not overly draconian. In civilian life, if there were an accident in a similar situation, one would expect to be breathalysed. Therefore, we on these Benches have nothing to add.

[Lord Tunnicliffe (Lab)]

My Lords, the Armed Forces have come a long way on this issue of alcohol and drugs. The railway industry faced this challenge some 20 years ago and the position that the Armed Forces have reached is very similar. I sense that there is an ongoing significant challenge in the military. I do not have statistical data but if one wanders through Google and looks at the events there was certainly the tragic event of the submarine that highlighted these cultural problems.

The Minister’s speech tonight was a great deal better than the EM, because I think that I understand the regulations now. It seems to me that this statutory instrument is virtually identical to another one that covered the suspected offence side of it, and this is really just a matter of writing it across—I do not know whether there are any detailed differences.

The regulations essentially state that if one is doing any of these activities one must have alcohol levels below the specified limits. That leaves me with one question, which we wrestled with in the railway industry but is a good deal more acute in the military. That is a situation where an individual is not performing one of these activities—the most obvious example is the captain of a ship—because he is not the officer on watch. He is actually in his bunk asleep after an interesting night out. His subordinate drives the thing into another ship. There is instantly an incident, at which point, presumably, the captain would take command. There must be parallel situations in the Army, and perhaps, although less likely, in the Air Force. Are we clear about our expectations of these individuals who are on duty but not actively performing a task? Do we expect them at all times to maintain their lifestyles so that they are below the appropriate limits?

[Earl Howe]

My Lords, I am grateful to the noble Baroness and the noble Lord for their comments and I am glad that they are supportive of these regulations, which I hope they will agree are fairly uncontroversial in their content.

The particular question that the noble Lord, Lord Tunnicliffe, posed, is an interesting one. It is one that I have discussed with my officials. The short answer is that it would very much depend on the circumstances of the situation as to whether the captain of a ship would be tested for drugs or alcohol after a particular accident took place and he or she were away from the bridge when the accident occurred. The key point, however, is that the powers commit a commanding officer to order a test if he or she has reasonable cause to believe that a person was carrying out a safety-critical function or duty at the time of the accident or had carried out a safety-critical function or duty before the accident.

In the example that the noble Lord suggested, the captain will still have command of the ship and he or she may have given orders for the control or navigation of the ship before repairing to their cabin—let us imagine that situation. It would largely depend on the circumstances of that order and whether the person to whom the order was given was a fit and responsible person and in a fit condition to accept the responsibility. However, I can imagine a situation where a captain was away from the bridge following an accident and was not, so to speak, in the line of fire when it came to taking a drug or alcohol test, but where a commanding officer might feel that it was prudent for the captain to take such a test. It would be very much back to the test that I have just articulated if a commanding officer has reasonable cause to believe that any given individual was involved in a safety-critical function.

[Lord Tunnicliffe]

I will explain my point just a little more. I am concerned not so much about the test as about what the Navy’s expectation is of a commanding officer. It seems to me that there is an implication that he should, in all circumstances, maintain a lifestyle whereby he is under the limit. Certainly in my organisation—fortunately, we did not have the same commanding officer situation—we did have a level of management where we ran a roster to make sure that we always had a sober general manager to handle any situation. The noble Lord probably cannot answer now, but I would have thought that there was an implied moral obligation that the senior person at sea, the captain, should maintain a situation below these limits.

[Earl Howe]

The noble Lord is absolutely right. He will see that in the regulations officers may be tested—they are one of the groups of people who can test. The alcohol limits for prescribed safety-critical duties have been set at two levels, higher and lower. The limits will not be amended by these changes. The majority of safety-critical duties correspond to the higher alcohol level for testing of breath, blood or urine; the lower levels apply to safety-critical duties that require a heightened speed of reaction in an emergency situation, such as aviation or carrying a loaded weapon.

I would not dissent from the noble Lord’s statement. He is absolutely right that the captain of a ship, to take that example, bears responsibility for the safety of the ship and its crew in all circumstances, which is why we have seen captains—on rare occasions—court-martialled for an accident that has occurred, even though the captain has sometimes not personally been on board the ship. I come back again to the point I made at the beginning: it would depend on the judgment of the person investigating the accident immediately after the event as to who was tested or not.

I hope that is helpful. If I can amplify those comments in a letter in any way, I shall certainly do so. In the meantime, I beg to move.

Motion agreed.