Skip to main content

Armed Forces, Army, Air Force and Naval Discipline Acts (Continuation) Order 2009

Volume 711: debated on Thursday 18 June 2009

Motion to Approve

Moved By

Relevant Document: 16th Report from the Joint Committee on Statutory Instruments

My Lords, as the House will know, the statutory instruments are all affirmative and follow the Armed Forces Act 2006. The current service discipline Acts date back to the 1950s, and over the years they have been renewed and amended at regular intervals.

Work to consider a possible single system of service law began in 2001 and culminated in the Bill that was introduced at the end of 2005. This was the largest and arguably the most significant piece of legislation that the Ministry of Defence has ever put before Parliament. The resulting Armed Forces Act 2006 harmonises and modernises the legislation while keeping the commanding officer at the heart of service discipline. Full implementation of the 2006 Act is due on 31 October this year.

One part of the work needed to achieve full implementation is the significant number of statutory instruments that we need to bring into force. Close to 50 have been laid in the past few months. Of these, eight are subject to affirmative resolution and must be debated by both Houses. This afternoon we are debating all eight.

I begin by saying a few words about each of these orders, starting with the continuation order. The 2006 Act continues the constitutional arrangements under which service legislation must be renewed by Parliament each year. The continuation order, therefore, provides for the renewal, for a further year, of the Act itself, and of the old Armed Forces legislation, until they are repealed when the 2006 Act comes into force in October.

The 2006 Act and the three service discipline Acts will expire on 8 November 2009 unless they are renewed before then by such an order. The Armed Forces, Army, Air Force and Naval Discipline Acts (Continuation) Order 2009, therefore, provides for all four Acts to continue in force for a further year. Notwithstanding this, I can confirm that the service discipline Acts will be repealed when the 2006 Act comes into force in October.

I turn to the Part 5 regulations. The Armed Forces (Part 5 of the Armed Forces Act 2006) Regulations 2009 provide for matters connected with the investigation of service offences and charging. Part 5 of the 2006 Act introduces a brand new set of provisions for the Armed Forces, in terms of how the roles of the commanding officer, the service police and the Director of Service Prosecutions—the DSP, as he is known—will interact in future.

The main changes are to ensure that allegations of more serious offences are investigated by the service police, and that such allegations must be sent by the service police direct to the DSP for a decision on whether a charge should be brought. Similarly, a commanding officer may not deal with certain serious allegations at a summary hearing. Rather, he must refer the case to the DSP for him to consider.

The Act itself specifies certain offences, such as murder, which are subject to these safeguards. However, the regulations also specify circumstances that become subject to these safeguards too. These are important safeguards since they will help to ensure that the service police and the Director of Service Prosecutions will be able to investigate and consider all appropriate cases.

I turn to the enlistment regulations. The Armed Forces (Enlistment) Regulations 2009 are to be made under Section 328 of the 2006 Act. They describe the process leading to the enlistment of a civilian into the Armed Forces and, largely, replicate the current procedure, with updates to the language and harmonisation of previous minor differences. The regulations are now on a tri-service basis. So, for example, a person previously “entering” service in the Royal Navy will now “enlist” just like the two other services.

Enlistment provisions are administrative matters that the Defence Council is best placed to be responsible for. Historically, therefore, they have been promulgated in Defence Council regulations that have not been subject to any parliamentary scrutiny. However, because service personnel do not have contracts of employment, it was considered appropriate that the regulations should be subject to parliamentary scrutiny. The Defence Council regulations under the 2006 Act are therefore being made by statutory instrument.

The regulations are subject to affirmative resolution because they include provisions about the enlistment of young people under the age of 18, with the consent of people specified in the regulations. The regulations also make it clear that no one under the age of 16—the school leaving age—may validly be enlisted into the Armed Forces. However, the regulations do recognise the possibility of recruiting officers acting in good faith but nevertheless enlisting people who are under the age of 16, and provide protection to recruiting officers in such circumstances. This is most likely to occur if young people from outside the United Kingdom seek to enlist in the Regular Forces because their documentation might not be as clear as in the UK.

For young people aged between 16 and 18, the regulations include safeguards to provide added protection for this potentially vulnerable group. Most importantly, a young person cannot be enlisted without the consent of his or her parents or a person with parental responsibility. If the young person lives with both of his or her parents, he or she must obtain the consent of them both before enlisting into the Armed Forces. The regulations require the consent of both parents where the recruit lives with them both to avoid the potentially difficult situation of one parent agreeing to the enlistment and the other not. On the other hand, if the young person lives with only one parent, then that person must consent to the enlistment, and if the young person does not live with either parent, then he or she need obtain the consent of only one parent.

Once a young person is enlisted into the Regular Armed Forces, the services themselves have additional safeguards for the protection of such young people. Hence, until a young person reaches the age of 18, he or she cannot be deployed into an operational theatre.

I turn now to the court martial rules. The 2006 Act establishes a standing court martial, replacing the current system of ad hoc courts martial that are convened for trying individual offences. The rules of procedure for this new standing court are set out in the Armed Forces (Court Martial) Rules 2009. These broadly follow the rules that apply in the civilian system, but they also reflect the different make-up of the court martial, involving a civilian judge, known as a judge advocate, and lay members who are usually officers or warrant officers but might be civilians in the rare circumstances when a civilian is tried in the court martial. These rules have been the subject of extensive consultation with the services themselves, the Director of Service Prosecutions and the Judge Advocate-General, who recently wrote to the Minister for the Armed Forces confirming that he is satisfied with them.

The Armed Forces (Civilian Courts Dealing with Service Offences) (Modification of the Criminal Justice Act 2003) Regulations 2009 are to be made under Section 271 of the 2006 Act. In rare circumstances, a civilian court may try and sentence a member of the Reserve Forces for a service offence. The main offences are ones involving failure to attend for duty. A civilian court is also able to deal with members of the Armed Forces who act in breach of a service community order imposed by a service court. The aim of the regulations is to ensure that the service offender is sentenced in a comparable manner to a civilian being sentenced for a civilian offence. So, if the service offender being sentenced has committed the service offence while released from service custody, the civilian court must take this aggravating factor into account in the same way as it would where a civilian commits an offence while on bail. On the same basis, the civilian court can give credit for periods when an offender was kept in service custody since being charged in the same way that it can give credit for periods of remand in civilian custody.

The Court Martial (Prosecution Appeals) Order 2009 provides for the prosecution to appeal against rulings made in court martial trials where, if the ruling is not overturned, the accused will have to be acquitted. These powers and procedures closely follow those in the civilian system. The order also makes provision for offences of contravention of reporting restrictions. The order replaces and revokes two earlier statutory instruments which contained similar provisions in order to align the provisions with the scheme and language of the 2006 Act.

There is one small matter in connection with the order that I should like to draw to the attention of the House. Article 26(2)(b) of the order refers to a “single judge” of the Court Martial Appeal Court which should in fact be a reference to “the full court”. It is clear from the context that this is a straightforward error. There is no room for doubt about the intended purpose and effect of the provision and my department therefore intends to correct this small error at the printing stage. I mention it here in order that Members with an interest in the subject are aware of the correction that is being made.

The Armed Forces (Powers of Stop and Search, Search, Seizure and Retention) Order 2009 supplements the provisions of the 2006 Act which lay down the broad powers of the service police to stop and search members of the Armed Forces, carry out searches following arrest and enter places to search for and seize evidence. The order includes provisions broadly equivalent to ones in civilian legislation. For example, the order allows the service police to enter certain premises in order to search for evidence when a person is arrested for a serious service offence. It also includes reserve powers under which a commanding officer can act in an emergency where the service police are not available.

On the Armed Forces Act 2006 (Consequential Amendments) Order, commencement of the 2006 Act will require consequential amendments to be made to a wide range of existing primary and secondary legislation in order to ensure that it properly reflects the changes that the 2006 Act is introducing. Schedule 16 to the 2006 Act sets out the majority of the amendments that need to be made to primary legislation. Under Section 379 of the 2006 Act, the Secretary of State for Defence has the power to make amendments to any legislation that is not covered in Schedule 16, and that is the purpose of the Armed Forces Act 2006 (Consequential Amendments) Order 2009.

The departments that own the legislation have been consulted about the amendments we are making. The amendments are mainly being made to secondary legislation, although the order does amend some primary legislation.

I should like to make a further observation about the orders we are considering today in relation to the ECHR. The 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 continuation order raises convention issues only in that it maintains in-force service legislation. We consider that this legislation is compatible with the convention rights. We also believe that all the other orders are compatible with convention rights.

The orders that we are considering today are a fundamentally important part of the work that is being done to bring the Armed Forces Act 2006 into force in October. They are very detailed and it is right that I should spell out some of that detail today. The orders add a further level of detail to the primary legislation which is itself a considerable piece of work. They replace a much greater volume of primary and secondary legislation, as well as replacing three separate systems of law with a single system. Taken together, they set out a comprehensive system of service law that we hope will serve the Armed Forces well for many years to come. I commend them to the House.

My Lords, I thank the Minister for explaining the statutory instruments. We welcome them and the continued attention to discipline, enlistment and other issues in the three services of our Armed Forces.

All these orders regulate and affect in some way the working relationship between the Armed Forces and the population as a whole. The first is of fundamental importance, of course, because it is the mechanism whereby the Executive draws authority from Parliament to maintain the Armed Forces for a further year. To debate this issue gives us the opportunity to remind ourselves and the Government that the Armed Forces, although an instrument of the Executive, are in fact a creature of Parliament. With that goes the opportunity to reflect that this is a two-way relationship: Parliament creates the Armed Forces, and that gives us in Parliament the responsibility to ensure that they are properly sustained.

Our fellow citizens who serve as members of the Armed Forces are exactly that—members of a lawfully armed and disciplined force. In appropriate circumstances they have to use force, including, as necessary, lethal force—a lawful power to kill; in fact, a duty. It is precisely that body of law that so authorises them and disciplines them in the power and duty that is now before us for our careful consideration.

As our Armed Forces are so exceptionally entrusted, do the Government consider it necessary to revise the relationship between our troops and the Human Rights Act? Over the past decade, many senior military professionals have voiced discontent with this legislation being applied in a combat environment. We debated this issue, and the recent Court of Appeal judgment, at Question Time on Monday. As I mentioned then, that judgment is causing serious operational problems for the Armed Forces. Will the Minister undertake to discuss with her colleagues the potential use of the proposed constitutional renewal Bill to include provisions relating to combat zones?

I want to call attention to the need for the Armed Forces Act 2006 to be wholly renewed by 2011. What feedback have the Government received from those within the Armed Forces and from other interested parties as a result of the distribution of the Armed Forces manual? Are there any loose ends waiting to be sorted out that might be incorporated in later versions? Will the Minister confirm that her department is giving serious thought—I am sure it is—to the new version of the Armed Forces Act to ensure that it is implemented as smoothly as possible?

My Lords, from the Liberal Democrat Benches, I support these eight orders. They represent a thorough updating of Armed Forces law, particularly in relation to enlistment, court-martial and other disciplinary and prosecution matters.

The Armed Forces (Enlistment) Regulations 2009 will have a somewhat historic impact on the Royal Navy, in that it will mean recruits will no longer enter service but will be enlisted and, for the first time, will be required to swear an oath of allegiance. We understand that the reason for the Royal Navy’s historic exemption is that it is the oldest of the three services and was established by the Sovereign’s prerogative rather than by an Act of Parliament. The significance of this change, at least on a purely constitutional level, must not be overlooked; it raises many questions about why it is taking place now. Will it really improve or make any difference to the way the services interact with each other? How does the Royal Navy see itself, and how does it feel about this change? Will existing servicemen be required to make a retrospective oath?

I return to the bulk of these orders, which are largely uncontroversial. The House of Lords Merits of Statutory Instruments Committee had little to say about them. The Armed Forces, Army, Air Force And Naval Discipline Acts (Continuation) Order 2009 is an order that we consider each year, and we welcome it again as we have done on so many other occasions previously.

The Armed Forces (Court Martial) Rules 2009 is a sensible way to proceed and we emphasise our commitment that the composition of the court martial be drawn from each and every branch of the Armed Forces. With regard to the Armed Forces (Part 5 of the Armed Forces Act 2006) Regulations 2009, which deal with the procedure for investigating offences and referring cases and charges to the Director of Service Prosecutions, on 11 October 2006 the noble Lord, Lord Ramsbotham, made an important point about the need for a commanding officer to be kept regularly informed by the service policemen throughout an investigation and not merely when the case is referred to the DSP. The Minister at the time, the noble Lord, Lord Drayson, gave an undertaking that this would be the case. Are the Government satisfied that this order retains the spirit of that commitment and will the noble Baroness confirm that the experience of the last few years has been one where commanding officers have had regular communication in such situations? The Explanatory Memorandum for this regulation indicates that the statutory instrument can come into force at different times for certain situations. Why is this being suggested and why the split? What is the point of the differential?

Turning to the Armed Forces (Powers of Stop and Search, Seizure and Retention) Order 2009, our view is that this is wholly commendable and it is wholly commendable that the PACE provisions should be extended in suitable form to members of the Armed Forces. The Explanatory Memorandum refers to a new manual of service law which is currently being prepared to provide guidance,

“on the single system of service law established under the Armed Forces Act 2006”.

Will the Government consider a simplified, general brochure for servicemen?

Turning to the Court Martial (Prosecution Appeals) Order 2009, Regulation 16(5) now requires the judge advocate to issue a written certificate that he is given leave to appeal. This is eminently sensible in our view and to be welcomed.

Finally, I turn to the Armed Forces (Civilian Courts Dealing with Service Offences) (Modification of Criminal Justice Act 2003) Regulations 2009. Here also the provisions are to be wholly welcomed, especially in modification to Sections 143 and 240 of the Criminal Justice Act 2003. Committing offences while on bail is at the core of the overall criminal sentencing process. Time spent in custody, to which the noble Baroness referred, pre-trial or sentence being taken into account for the purposes of the overall sentence is a fundamental principle to which each defendant is entitled. It is only right that both differing principles should apply equally to service personnel.

My Lords, I am very pleased that there has been broad welcome for the moves that we are making and for the statutory instruments that we are discussing today. I will try to deal with all points that have been raised.

The noble Lord, Lord Astor, mentioned the relationship of Parliament with the Armed Forces and the fact that there is a body of law which both authorises them and disciplines them. It is right that we should remind ourselves of that relationship from time to time because we depend so much on the work that they do and we do not always have sufficient opportunity to record our admiration and thanks for that work.

The noble Lord also raised some questions about where they stood and went back to the point that we were discussing on Monday about the impact of the Human Rights Act, and in particular the case that was the topic of that question in terms of Article 2. He suggested that perhaps we should use the constitutional renewal Bill to change that situation. I am not sure that that would even be possible were there a problem, but I think that the noble Lord has got to understand that we are still, as I said on Monday, discussing and taking advice on what is the best way forward. We are strongly committed to the protection of the human rights of our Armed Forces and we are extremely worried about the implications of the recent court judgment.

We do not want to open the door to routine legal challenges to decisions made by service personal entrusted with the conduct of operations. As I said on Monday, the Chief of the Defence Staff has sent a message to operational commanders. The noble Lord said that that decision was causing serious operational problems, but that should not be the case. As I think anyone who has read the message from the CDS will see—I have arranged for a copy to be placed in the Library—it makes it very clear that we cannot have decisions made in split-second situations ploughed over, in a totally unreal way, many months and possibly years later. We are still considering what we should be doing to take that forward, but we will certainly not allow a situation to develop where commanders cannot take the decisions they need to take. We have said that as clearly as possible and the CDS has said it. I hope that that is reassuring to those who are charged with that significant responsibility.

The noble Lord also asked about the renewal situation and whether the 2006 Act will have to be renewed in 2011. That is indeed the case because it is a quinquennial review. I think that much of the work done in recent months to achieve this level of agreement on all of these orders will help make the renewal process that much easier, because so much work has already been done. I pay tribute to all those who have been working on the many statutory instruments that have arisen as a consequence of the changes in the 2006 Act. It is a formidable task and they deserve recognition for it.

The noble Lord, Lord Lee, mentioned a specific point—while welcoming all the updating, he asked a question about the Royal Navy. I am told that the enlistment regulations do not require all recruits to swear an oath of allegiance, but the services’ intention is that in future all newly enlisted people will do so, and the Royal Navy is content with that change. It will not be a retrospective change, but it will come across the board in the future. The noble Lord also asked about the situation with commanding officers and whether they will be kept informed as has been suggested. In fact, the order requires that the commanding officer be informed. So I can repeat the reassurance given when the legislation was initially going through Parliament.

As for parts of the order coming into effect at different times, it is true that Article 5 will come into effect at a different time. However, one early provision allows procedural steps to be taken in advance to ensure that everything moves as smoothly as possible later. The other point raised concerned the manual, which both the noble Lords, Lord Astor and Lord Lee, asked about. It is not available yet. Because these regulations do not come into force completely until the end of October, the manual is still being drafted in close consultation with the services. It is important that that is the case and that it is as user-friendly as possible. The noble Lord, Lord Lee, suggested that there could be a slimmed-down version. I am not sure whether that is appropriate but I am sure that it will be possible to look at it and move towards it if at all possible.

Finally, the whole intention behind all the consultations and the time taken is to ensure that the new system is implemented as smoothly as possible. It is helpful that we are discussing these orders this evening so that there can be even more time to ensure that everything moves smoothly. I thank noble Lords for their support.

Motion agreed.