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Armed Forces Act (Continuation) Order 2010

Volume 720: debated on Monday 19 July 2010

Motion to Approve

Moved By

That the draft order laid before the House on 2 June be approved.

Relevant documents: 1st Report from the Joint Committee on Statutory Instruments.

My Lords, this continuation order is required as part of the process whereby the sovereignty of Parliament has been established over the Executive’s powers. The noble Lord, Lord Lee, said to me on the way in that he wanted to ask whether we would continue to do this annually after the 2011 Act. The noble Lord, Lord Tunnicliffe, and I had an interesting exchange earlier this afternoon on whether the Bill of Rights had been passed in 1688 or 1689. After a certain amount of chasing around, I discovered that the Act was indeed passed in early March of what, in the old calendar, was still 1688, as the old calendar changed on 25 March. However, under the new calendar it was clearly 1689. That encouraged me to read the English Bill of Rights, which clearly states:

“That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law”.

That is the basis for our annual continuation order. It is better not to read the following paragraph, which states:

“That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law”.

It also complains that His Majesty King James II had caused,

“several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law”.

There are many things in our ancient constitutional rights which are not entirely appropriate to where we are now. However, that is the basis for this annual order.

Four years ago, the House passed a major change in the disciplinary orders, the Armed Forces Act 2006, which brought together the separate service discipline Acts. That was intended to last for five years, so that next year we will have another, rather more important, Armed Forces Act. That will be prepared over the next few months and presented to the House in the later stages of this Session. That said, and this being a formal duty to allow our Executive—whom we should all, as parliamentarians, distrust a little—to maintain a standing army with the necessary discipline for a further year, I beg to move.

My Lords, we on these Benches have no concerns about this order. I reflect that during the year or so when I used to move orders, I would receive 20 detailed questions, mostly about the primary legislation, after the opener on the opposition Benches had said that they were going to support it. I shall not do that. My only question has been answered. It was about the fascinating fact that our Armed Forces exist only by annual approval of an order and that every five years there has to be a fresh Act. It is a fair question whether that should be debated—I do not have a view on it because this is about debate—when we come to what will be the 2011 Bill and Act. I do not believe that many members of Her Majesty's Armed Forces understand, at least formally, how tenuous their existence is. It is extremely important—I would not dare hint otherwise—that the supremacy of Parliament should be restated now and again, but this is a particularly interesting example.

I shall use this occasion to comment on the bringing together of the various codes of discipline in the Armed Forces, and on any problems that seem to be emerging. However, I am pleased to report, with my limited research capability, that the 2006 Act—which, although it was an Act of my Government, noble Lords approached very consensually in debating, probing and passing it—seems to have worked very well. I have heard of no dissent. The order will not go in front of my friends at the other end until September, and they may unearth some disquiet, but I very much doubt it. It has been a successful Act and I do not expect it to be seriously amended in the 2011 Bill, when we see it. It has brought the forces together in—in the dreadful word of the 1998 defence review—joinery. Having worked for the MoD, I recall that we used to call it “purple”. That sounds rather better than joinery, which suggests woodwork or something. The Act is working well and I am delighted to support this order, which maintains our Armed Forces for a further year. As part of that, it also continues the single service discipline Act that seems to be working so well.

My Lords, I support this order. As a member of the Armed Forces, I have always recognised the primacy of Parliament over us, and it is right and proper that the order should be placed. The Minister mentioned the next review of the Armed Forces Act. I hope that it may then be possible to have a further look at the impact of the Human Rights Act on the Armed Forces and their discipline because it is quite clear from the passage of time that problems arise here. I do not have a solution to how they can be dealt with. When the Human Rights Bill was being passed, I attempted to have the Armed Forces excluded on the basis that they, uniquely, have other Acts, including this one, to do things and to respond to orders in a way that is quite unlike any other member of the public, and that can at times conflict with the strict application of the Human Rights Act, as we have seen. However, I support this Motion.

I rise briefly as a former Minister for Defence who was lucky enough to take two Bills through the House. This was quite rare: it was bad enough getting one, but to have two was an excessive pleasure. I rise to support this order and to say how important it is, at a time when our Armed Forces are under such pressure, that this Act retains support on all sides of the House and that the defence of the realm is governed by all-party consensus, as has been the case in recent years. If any problems arise with the Act, it would be good to get advance notice of them in this spirit of co-operation. I say in passing that, had it not been for my vehemence in support of the Armed Forces Act, I doubt that it would have been brought to the House by 2006, because there was every chance that it could have taken another three or four years. However, I am delighted to see that it is working well.

My Lords, I intervene briefly. Perhaps the Minister is surprised at the greater interest in this than he imagined might be the case. My own interest goes back 50 years-plus to my national service, when I had a lot to do with courts martial. I did a little background research, as did the Minister for his work today. The idea of a standing army being a threat to the populace in the 20th and 21st centuries, as compared with the 17th century, has always struck me as amazing and extraordinary, yet we have gone on, year by year—occasionally I have attended the appropriate proceedings in this House—with the order that allows a standing army to continue for another year.

Now that we have a coalition Government, of which I am somewhat suspicious from the opposition side, I am anxious about even suggesting that we should have anything different in the way of a thorough re-examination of our constitution, of those of other countries, of how they manage and so on, because, although I trust the Minister as an excellent man of high repute, I do not trust the coalition to come up with something ideal. Therefore, at present, I would rather the Minister did not pursue his researches too far and did only the minimum to secure the changes needed for another year.

My Lords, I thank all those who have intervened in this extremely brief debate. The noble Lord, Lord Borrie, is clearly worried about whether the coalition will stick to the constitution. We are assailed about this on the airwaves all the time. Mr Ed Balls has asserted that the coalition is already deeply unconstitutional. I would not have thought that he was one of the most constitutionally minded members of the previous Administration, but there we have it.

We should not take military acceptance of civilian authority for granted. We have seen many other countries in which the professional military has developed a sense of corporate identity and a conviction that it represents the nation that have led it to resist civilian authority. It is one of the great benefits of the military tradition in this country that the acceptance of civilian control has been unquestioning. Perhaps this annual ceremony is one way in which we maintain and reassert that worthwhile tradition.

The noble and gallant Lord, Lord Craig, raised the issue of human rights. The impact of the Human Rights Act is an important and delicate question that we all understand. My notes state that Her Majesty's Government are satisfied that the legislation is compatible with the rights provided in the European Convention on Human Rights. This whole area is one that we will need to look at in the coming Act, although there are many other aspects of changing circumstances which affect the operations of troops in the field. We all understand that service discipline needs to affect the immediate needs of operations at a distance. We also now understand that, with modern communications, the visibility of the way in which your troops behave in operations at a distance very often comes back immediately to the press and the media in one’s own country. So we are in a very delicate and rapidly changing area.

I also had in my notes that I would say a little about the military covenant, which, as some noble Lords will know, was one of the areas touched on in the coalition agreement. This order does not concern the military covenant, partly because the fulfilment of the promises made in that agreement to renew the military covenant will require a lot of work throughout Whitehall with other government departments—with the Department for Education and Skills, the Department for Business, Innovation and Skills and others—in order to fulfil some of the pledges that have been made. However, we are deeply committed as a coalition to carrying through that renewal of the covenant.

Having said that, and looking forward to the debate that we will have early next year in time for the expiry of the current five-year Act in November 2011, I commend this continuation order.

Motion agreed.