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Armed Forces, Army, Air Force and Naval Discipline Acts (Continuation) Order 2008

Volume 702: debated on Thursday 12 June 2008

rose to move, that the draft order laid before the House on 21 May be approved.

The noble Baroness said: My Lords, first, on behalf of the House, I offer sincere condolences to the families and friends of Private Nathan Cuthbertson, Private Daniel Gamble and Private Charles Murray of 2 Battalion of the Parachute Regiment, who were killed on operations in Afghanistan last Sunday. I am sure that the thoughts of the whole House are with them.

In moving the Motion I shall speak also to the Armed Forces (Alignment of Service Discipline Acts) Order 2008 and the Armed Forces (Service Complaints) (Consequential Amendments) Order 2008. I will say a few words about each of these, beginning with the continuation order. The Armed Forces Act 2006 provides for the three service discipline Acts—the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957—and the 2006 Act to continue in force for a maximum of five years, subject to an annual Order in Council in each of the intervening years. The continuation order that we are considering today is such an order. It is a routine item of business, but it is vital because it will ensure that the Armed Forces Act 2006 and the three service discipline Acts will remain in force for a further 12 months. When the 2006 Act was agreed by Parliament, it was expected that it would replace the three service discipline Acts. I can confirm that it remains our intention to repeal the service discipline Acts, but we need them to continue in force until the 2006 Act is fully in operation. That is why they are included in the order.

I will give a short update on progress in implementing the 2006 Act. As I reported during the corresponding debate last year, officials are engaged in delivering the significant amount of work that will be needed to deliver the new single system of service law for our Armed Forces. Foremost among this work is the large amount of secondary legislation that will add much of the necessary detail to the provisions of the 2006 Act. Altogether, we now expect to produce around 80 statutory instruments, directly or indirectly, as a result of the 2006 Act. This is more than the 65 that we anticipated last year, and is due to the need for consequential changes to be made through separate statutory instruments, rather than through a large single order in the way that we had originally envisaged. The figure also allows for commencement orders, though these are not subject to parliamentary procedure.

So far, we have laid about a dozen of the statutory instruments that we expect to produce. Many more are ready, apart from the need to add their transitional provisions. These transitional provisions will ensure that there is a working bridge between the old legal system and the new one. The overall transitionals regime will be complex, because of the extent of the changes made by the 2006 Act. The transitional provisions specific to particular statutory instruments will relate to a main transitionals order.

We propose to lay this main transitionals order during the summer. It will be subject to negative resolution. Once it has been laid, the way will be clear for us to lay the other statutory instruments that have a transitional element to them. Since it is not possible to introduce some parts of the new service disciplinary system in advance of the other parts, we intend that all the statutory instruments should take effect together. Our target date for this is January next year.

The majority of the statutory instruments are subject to negative resolution, so we propose to lay some during the summer months—the orders will still come into effect in January 2009—rather than lay them in much greater numbers in the autumn. We recognise that it would not help the House if they were all to be laid at the same time, so officials have looked to assemble statutory instruments in groups and lay them in relevant batches. We have done this in discussion with officials of the relevant parliamentary committees. By doing this, our aim has been to present the information in a way that assists parliamentary scrutiny and avoids the system being overloaded. The thinking here is that we give Parliament as much time as possible in which to consider the orders before they take effect. There can be no suggestion of them being quietly laid during the Recess and coming into force without proper time for parliamentary consideration. Officials have therefore been in touch with relevant committee staff to outline our approach. Although we make it clear that the programme is still subject to significant change, our efforts to plan and co-ordinate the work have so far been given a warm welcome.

There is a great deal to be done but we hope that it should be possible to have everything in place in time to meet the January 2009 deadline. This will then become the point at which the Armed Forces will move from the three separate systems in place at present to the single up-to-date system that will replace them. Among other things, this change to a single system will have a bearing on service police investigations, summary hearings by commanding officers, prosecutions and court martial trials. The statutory instruments are just part of the picture. The services will also need to have manuals, guidance, instructions and training for the wide range of personnel and organisations involved in the service justice system. Work is therefore going on to provide everything the services will need to ensure that they will be able to change to the new system with the minimum of disruption.

There are two other orders before us. The first amends various sections of the service discipline Acts in order to align them more closely with the 2006 Act. The changes are likely to help ease the transition to the new system if they are made before the main changes. They also introduce some safeguards which are in the new Act. This is being done now to ensure greater coherence between the legislation as it stands and the legislation as it will be when the 2006 Act comes into force. The order also ensures that some areas of incompatibility between the two systems are removed and introduces a number of safeguards to the current system.

One measure in the order aligns the service discipline Acts with new provisions in the Armed Forces Act 2006 in relation to powers of arrest. Changes made by the order will allow service policemen to arrest service personnel of all ranks without the need to seek prior approval and to arrest a person whom they reasonably suspect of being about to commit a service offence. At present, the service police need to have prior approval if they wish to arrest somebody above the rank of warrant officer and they can make an arrest only while an offence is being committed or afterwards. These are therefore important changes for the service police, which provide them with greater powers than they have at present. The new powers are, however, broadly similar to those enjoyed by the civil police.

The order also removes the ability of a judicial officer to authorise post-charge custody where the accused has previously deserted or gone absent without leave after being charged with an offence and released from custody. Authorising custody for this reason alone cannot be justified merely because the accused has previously absconded and the provision is therefore not relied on by judicial officers. The amendment clarifies the legal position.

Under the service discipline Acts, the prosecuting authorities can require an accused person’s commanding officer to consider a charge other than the charge on which the accused originally elected to be tried by court martial. This could create a disincentive to the accused electing trial by court martial and could therefore be subject to challenge. The amendments in the order allow the prosecuting authorities to refer a charge back to the commanding officer other than that on which the accused elected, but this may not be done without the consent of the accused. The one exception to this would be if the charge referred were to be one which the commanding officer could have heard if the accused had not elected trial by court martial.

The order also removes the ability of the reviewing authorities to activate suspended sentences. This will align the Service Discipline Acts more closely with the provisions of the Armed Forces Act 2006, ensuring that only a court can activate a suspended sentence. The one exception to this rule is in relation to the Royal Navy where, until the Armed Forces Act 2006 comes into force, RN commanding officers will still be able to activate a suspended sentence of detention passed by a court martial. The order also provides for appeals against the activation of suspended sentences.

Finally, the order repeals all powers of the reviewing authority to postpone the date on which a sentence is to take effect. The exercise of this power by a reviewing authority is not compliant with the European Convention on Human Rights, and the court martial will not have such a power under the 2006 Act.

I turn now to the third and final order. Section 334 of the 2006 Act and the regulations which have been made under that section allow members of the Armed Forces to make complaints about matters relating to their service. The Working Time Regulations 1998, the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the Employment Equality (Religion or Belief) Regulations 2003 and the Employment Equality (Sexual Orientation) Regulations 2003 provide that a complaint cannot be presented by a member of the Armed Forces to an employment tribunal established under any of those regulations unless a complaint under service complaint procedures has been made about the same matter and not withdrawn. Quite simply, the order that we are considering today amends each of these regulations so that they correctly refer to the service complaints system as amended by the 2006 Act.

I should say a word about ECHR issues. Her Majesty’s Government have given an undertaking that Ministers moving instruments subject to the affirmative procedure will tell the House whether they are satisfied that the legislation is compatible with the rights provided in the European Convention on Human Rights. The first order that we are considering is a brief document that raises convention issues only in that it maintains in force three Acts that, as they have been amended over the years, reflect convention rights. As for the 2006 Act, we consider that its provisions are compatible with convention rights. The second order will help to preserve convention rights and the third order has no bearing on them at all.

In conclusion, I hope that it is helpful to have a brief update on the progress towards full implementation of the legislation. We will look forward to further discussions not only today but in the autumn when other elements of the statutory instruments are available. I beg to move.

Moved, That the order laid before the House on 21 May be approved. 21st Report from the Joint Committee on Statutory Instruments.—(Baroness Taylor of Bolton.)

My Lords, I start by joining the Minister in sending my condolences and those of my party to the families and friends of those three members of the 2nd Battalion The Parachute Regiment, so tragically killed in Afghanistan. I thank the noble Baroness for presenting these orders and, through her, I also thank those responsible for drafting the Explanatory Memoranda, a duty performed with the utmost clarity. The continuation order is much the shortest of the documents before us and is altogether the most important. It serves to remind us and the Government that the existence of the Armed Forces is not simply a matter of executive decision but also a matter requiring continuing parliamentary consent. This should also serve to remind us—and again, remind the Government—that Parliament, having provided the existence of disciplined Armed Forces, also has duties with regard to their pay and conditions, their right equipment and their deployment, as is being increasingly recognised. Where the Government fall short of their duties in any of these matters, they must accept criticisms from within the Armed Forces themselves and from all parts of this House. This is not a party-political matter. It is a parliamentary matter. We and the Armed Forces themselves are entitled to expect that shortcomings will be recognised and will be remedied.

The stated object of the service complaints order is so that the service authorities will be put on notice of an incipient complaint by a service man or woman to civil jurisdiction. This is to be achieved by initiating a service complaint first. Both I and my honourable friends in another place expressed our concern generally at the intermingling of service law and civilian law. It was one of the deliberate influences on the formulation of the Armed Forces Act 2006. This order seems to me to exemplify just such confusion. I hope the Minister will be able in her reply to persuade me otherwise.

Finally, I turn to the much longer and altogether more complex order, the Alignment of Service Discipline Acts Order, designed to amend the three single service Acts until the omnibus Armed Forces Act comes fully into effect. This, we are told, should be in January next year, some six or seven months from now. Thus, it is very much an interim measure. Noble Lords who have looked at the order will have observed that it comprises 14 pages of closely printed insertions and deletions and a three-page schedule of transitional provisions. It prompts me to ask the Minister how these changes will be promulgated. Will the Acts be reprinted? If not, how will those affected—to say nothing of those advising or representing them—be able to ascertain clearly what the law is in relation to these matters at this particular juncture?

My Lords, first I associate these Benches with the earlier tributes to the three members of the Parachute Regiment who so tragically lost their lives in Afghanistan. On these Benches we also support the thrust of these orders, but there are a small number of detailed questions which I would like the noble Baroness to answer. I appreciate that one or two may be of a certain technical nature. Therefore, if she would prefer to write to me I would totally understand. First, on the subject of the continuation order itself, what progress has been made on producing some form of loose-leaf volume which would contain all these separate Acts and orders for the use of practitioners both inside and outside the Services and for the judge advocates?

I have two questions on the Armed Forces (Service Complaints) (Consequential Amendments) Order. First, what happens if, on a complaint being made, a complainant is dissatisfied with the redress offered? I refer to where a complaint has been accepted by the defence council. Is the individual then entitled to make his complaint to an employment tribunal? Secondly, linked to that question, what is the effect on the tribunal proceedings of a decision made by the defence council? Do the employment tribunal proceedings start afresh or will the findings of the defence council be in evidence before it? In other words, to what extent is the employment tribunal influenced by the findings of the service authorities, or do they hear the case de novo?

On the Armed Forces (Alignment of Service Discipline Acts) Order, I am glad to see that there is an attempt to bring uniformity of powers and procedures to the three services. That makes it even more questionable why the Government resisted the Liberal Democrat attempts to allow courts martial to be heard by a mixed panel of all three services during the passage of the Bill.

When we had this debate last year, my noble friend Lord Thomas of Gresford spoke from these Benches. I should like to quote a paragraph from what he said:

“The noble Lord, Lord Astor, referred to the acquittals that have taken place. They have occurred not because of any weaknesses in the military justice system but, in my view—I merely give my opinion and have declared my interest—because of a lack of resources in the investigation phase and mistakes made at that point which led to the prosecutions that did not succeed. However, if the Government are prepared to provide the investigatory branch of the Armed Forces with full and proper resources and training so that they are on an equal footing with the investigation forces in the United Kingdom—if they are capable of doing the same sort of thing forensically and so on—I have no doubt that the procedures will be fair for everyone”.—[Official Report, 20/6/07, col. 301.]

The question to the noble Baroness that follows from that is: has there, during the past 12 months, been any increase in the resources made available to the prosecuting authorities?

Finally, what is the proportion of courts martial between the three services? Does any difference indicate a differentiation of resources? Having put those specific points to the Minister, I confirm that we are happy to support the orders.

My Lords, I thank those who have contributed to the debate for their overall welcome of the orders before us. They are, as has been pointed out, quite detailed. Some of the points go very wide and we may return to them on other occasions.

First, I agree with the comments of the noble Lord, Lord Astor, about those responsible for drafting the Explanatory Memorandum. It is no mean task to explain these regulations in anything like simple English. When I was in another place, I made changes to the Explanatory Memorandum system that came before Parliament because those documents used to be as technical as the Bills. I do not underestimate the challenge that often faces those responsible for translating legalese into language that we can understand, and therefore I welcome the reminder of that work.

With regard to the points that the noble Lord, Lord Astor, made about the continuation order, we absolutely accept that Parliament has a role. In my opening remarks, I tried to outline the degree to which we had attempted to involve Parliament and committees such as the House of Commons Select Committee and the Joint Committee on Statutory Instruments to ensure that there was sufficient consultation about the way in which we went about getting authority and approval for these very complex issues.

On the comments about our duty of care—the issues of pay and conditions, equipment and deployment—all in the Ministry of Defence accept those responsibilities directly. We talk about them on many occasions. On accepting responsibility, noble Lords will be aware that in another place today my right honourable friend Bob Ainsworth, Minister for the Armed Forces, made in his Statement on “Tireless” a direct acknowledgement that the Ministry of Defence had been at fault. He issued an apology. We are not slow to accept responsibility where mistakes are made, even though our first priority should be to avoid incidents that require apology. We need to maintain our systems as highly as possible.

On service complaints procedure and worries about the intermingling of service law and civilian law, I can reassure the noble Lord that a great deal of care has been taken on this issue. This is one reason why all these SIs are so complex and there are so many of them. We have to make sure when it comes to complaints that those in the Armed Forces have the right balance of rights and responsibilities, just as anybody would in a civil court. There are many parallels. The safeguards in the system should be appropriate.

The noble Lords, Lord Astor and Lord Lee, raised similar points about the need to make sure that everybody is informed about the complex changes taking place. At the end of the day the process will be simplified because we will have some more common systems, but it is right to say that we will have to be careful to ensure that people are aware of the changes that take place. I mentioned in my opening remarks that we will have written guidance. We will be drawing information together. As well as a new manual of service law, we will have to have extra training for those who are involved so that they are completely aware of what the new system entails. We are aware of that.

I was glad that the noble Lord, Lord Lee, mentioned service complaints and welcomed the move that we are making from three strands to one single approach. That should work in the end. He referred to complainants going to an employment tribunal where their issue is one of discrimination, equal pay or something of that nature. There will be an opportunity to go to an employment tribunal in those cases. Other issues can go to the courts only by way of judicial review—for example, if relevant evidence has been ignored. It is important to make that distinction at this stage.

On resources, the noble Lord, Lord Lee, mentioned comments from last year. I have not been aware of any problems with resources from the prosecuting authorities. I have not got the figures on the balance of courts martial between different services, but going down the path of courts martial is not something that people do lightly. All the services will take a lot of factors into account before anybody goes down that route. Those involved in both complaints and discipline take their responsibilities seriously. The new regulations that we are introducing are based on being fair to everybody. We are making sure that we have regulations that are easily understood, comprehensible and fair. I accept that we still have some work to do to make sure that everybody realises that, but I am grateful for the general welcome for the direction in which we are going.

On Question, Motion agreed to.