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Armed Forces Act (Continuation) Order 2015

Volume 764: debated on Monday 7 September 2015

Motion to Consider

Moved by

That the Grand Committee do consider the Armed Forces Act (Continuation) Order 2015

Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments

My Lords, the purpose of the order that we are considering today is to continue in force legislation governing the Armed Forces—the Armed Forces Act 2006—for a further period of one year, until November 2016. This reflects the constitutional requirement under the Bill of Rights that the Armed Forces may not be maintained without the consent of Parliament.

The legislation which makes the provision necessary for the Armed Forces to exist as disciplined forces is renewed every year. There is five-yearly renewal by Act of Parliament. That is the primary purpose of Armed Forces Acts. Between Acts, there must be an annual Order in Council. That is the purpose of the draft order that we are considering today.

If the Order in Council is not made by the end of 2 November 2015, the Armed Forces Act 2006 will automatically expire. The effect of this would be to end the powers and provisions necessary to maintain the Armed Forces as disciplined bodies.

The order will continue in force the 2006 Act until the end of 2 November 2016, when a new Act of Parliament will be required to provide for the legislation to continue for the next five years. We expect the next Armed Forces Bill to be introduced into Parliament soon, and I look forward to our debates on the Bill and on matters of great importance to our Armed Forces during its passage in your Lordships’ House. Indeed, before then, I look forward to enjoying a full and interesting debate next week on the role and capabilities of the UK Armed Forces in the light of global and domestic threats to stability and security.

Turning back to the business in hand today, I should say something about why we need to keep the 2006 Act in force. The Armed Forces Act 2006 applies to all service personnel wherever in the world they are operating. It provides nearly all the provisions for the existence of a system of command, discipline and justice for the Armed Forces, covering such matters as offences, the powers of the service police and the jurisdiction and powers of commanding officers and of service courts, in particular the courts martial. It is the basis of the service justice system that underpins the maintenance of discipline through the chain of command which is so fundamental to the operational effectiveness of our Armed Forces.

The 2006 Act also provides for a number of other important matters for the Armed Forces, such as for their enlistment, pay and redress of complaints. Members of the Armed Forces have no contracts of employment and so no duties as employees. Although members of the Armed Forces owe a duty of allegiance to Her Majesty, their obligation is essentially a duty to obey lawful orders, but without the 2006 Act, commanding officers and the courts martial would have no powers of punishment for either disciplinary or criminal misconduct. That is why the Armed Forces Act 2006 is so important and why we need to continue it in force. I beg to move.

My Lords, I thank the Minister for his explanation of the purpose and need for the order. We have this debate on the Armed Forces continuation order each year, and I must say that I am no clearer at present than I was when I was first involved in these debates what would be the implications if the order was not carried.

I do not intend to speak at any length. We support the order and, as the Minister said, we have a separate defence debate in the Chamber next week. However, bearing in mind the wide-ranging nature of the order and the apparent consequences if it was not agreed, it has always seemed to me—if, apparently, to no one else—that consideration of the order each year could be used as the basis for an annual general defence debate in the Chamber. There is, after all, very little, if anything defence and Armed Forces-wise that it could be argued would not be relevant in a debate on an order which if not agreed calls into question the continuation of our Armed Forces as a disciplined fighting force.

As paragraph 7.1 of the Explanatory Memorandum states, the Armed Forces Act 2006, which the order extends for a further year from 2 November 2015,

“provides nearly all the provisions for the existence of a system for the armed forces of command, discipline and justice … It also contains a large number of other important provisions as to the armed forces, such as provision for enlistment, pay and redress of complaints”.

Paragraph 7.3 of the Explanatory Memorandum states:

“The central effect of expiry of the 2006 Act would be to end the powers and provisions to maintain the armed forces as disciplined bodies”.

I take this opportunity to ask the Minister: what precisely are the implications of paragraph 7.4 of the Explanatory Memorandum? Paragraph 7.4 says:

“The requirement for renewal (under Section 382 of the 2006 Act) is based on the assertion in the Bill of Rights 1688 that the Army (and by extension now the RAF and the Royal Navy) may not be maintained within the Kingdom without the consent of Parliament”.

Does that mean that if this order is not agreed by Parliament before the end of 2 November 2015, there is either no statutory authority or only limited statutory authority for the continued maintenance of our Armed Forces? If that is the case, does that mean that any or some actions within or by our Armed Forces would be outside the law? For example, could our Armed Forces still take lawful military action or lawfully incur current levels of expenditure if this order extending the 2006 Act is not agreed by Parliament within the required timescale? Further, what in practical and legal terms does the statement mean at the end of paragraph 7.3 of the Explanatory Memorandum that:

“If the 2006 Act were to expire, members of the Armed Forces would still owe a duty of allegiance to Her Majesty”,

in the light of the statement in paragraph 7.4 to which I have already referred? Would the consent of Parliament have been withdrawn if this order was not agreed by Parliament and the 2006 Act expired as a consequence, and what in practical terms would the reference in paragraph 7.3 to our Armed Forces owing,

“a duty of allegiance to Her Majesty”,

actually mean in those circumstances?

I thank the Minister for his explanation of the order and note that his speech is somewhat familiar, as I delivered it myself last year. These things do not change an awful lot so I shall not take long.

The order reflects the constitutional requirement under the Bill of Rights that the Armed Forces may not be maintained except with the consent of Parliament. The noble Lord, Lord Rosser, has repeated some of the points and questions that I probably failed to answer last year around this whole issue of what happens should we not agree. But I would like to highlight an area that had its own legislation passed earlier this year—the Armed Forces (Service Complaints and Financial Assistance) Act 2015—in particular, complaints, which are covered in this order.

The 2014 continuation order covered the old complaints system. The 2015 legislation to set up the new Service Complaints Ombudsman amended the Armed Forces Act 2006. Will the Minister confirm that this continuation order incorporates the service complaints paragraphs of that Act? The ombudsman set up in the Act will have stronger powers than the current commissioner to investigate any maladministration in the handling of a service complaint. Will the Minister also confirm that as the Act goes live in 2016, the system set up is on track to meet the change in legislation?

I note, too, my responses last year with regard to the letter from noble Lord, Lord Tunnicliffe, to the department, and Mr Morrison’s response on the 2014 order. Can the Minister confirm whether he believes that the Explanatory Memorandum of this year reflects the contents of Mr Morrison’s letter? Will the noble Earl also confirm that next year we will be debating a 2016 Armed Forces Act, which we expect to, as it is done every five years, and does the Minister have any inkling of that timetable?

As the Minister has highlighted, we have the opportunity in next week’s debate on role and capabilities of the UK Armed Forces to explore in more detail issues of a more specific nature, and I hope that the Minister will accept the point made in last year’s debate, which the noble Lord, Lord Rosser, repeated today, that a general debate is useful. The issue could helpfully be swept up in the debate next week and the Minister could respond to areas that are defence related but are only tangentially connected with role and capability. In the mean time, I am happy to agree to the continuation order.

My Lords, I am grateful to the noble Lord, Lord Rosser, and the noble Baroness, Lady Jolly, for their comments and questions. I shall address them in turn.

The noble Lord, Lord Rosser, devoted his remarks to questions around the hypothesis that were this order not to be approved, the effect on the Armed Forces would be to render them, in practice, completely ineffective. I can confirm that. The practical effect of not renewing the Act would be that the Armed Forces as we know them would cease to exist because, among the many important provisions in the Act, the key provisions are perhaps the duty to obey lawful commands and the mechanism for enforcing that duty. Without these, the Armed Forces would be unable to continue as disciplined forces. They would continue to owe allegiance to Her Majesty but to deploy the Armed Forces in practice or in theatre would be rendered almost impossible because the system of obeying duties would fall away.

Perhaps I should clarify. I understand fully the point that the noble Earl has made. Is the Minister saying that it would be impractical to undertake military action because there would be no duty to obey commands, or is it also the case that if this order was not passed it would be illegal for our Armed Forces to undertake any action? Is it an issue about practicality or is it an issue about whether it is legal?

It is both, as I understand it, in that the requirement for annual renewal can be traced back, as noble Lords have pointed out, to the Bill of Rights 1688. It declared that the raising or keeping of a standing Army within the kingdom in time of peace, unless it be with the consent of Parliament, is against law. That means, essentially, that it would be illegal to have a standing Army or, indeed, a standing Royal Navy or Royal Air Force. It has not been a matter for any Government in living memory to contemplate a scenario whereby Parliament might not approve the continuation of the Armed Forces.

My Lords, I am not advocating that either but I am not entirely clear that the Explanatory Memorandum actually says that about the legality, in words of one syllable.

I shall naturally take advice from those who are expert in this field. If anything that I have said is wrong or requires expansion I will of course write to the noble Lord. I agree that this is a subject of theoretical interest. I am glad to hear that there is no proposal to take the questions to their logical conclusion, but I recognise the importance of the questions that the noble Lord poses and will be happy to clarify, perhaps at greater length in writing, what the legal position amounts to.

The noble Baroness, Lady Jolly, also referred to the Bill of Rights, but focused her remarks on the system of complaints and asked whether the changes that are being introduced are on track. They are. As she knows, the Ministry of Defence worked closely with Dr Susan Atkins, the first Service Complaints Commissioner, to make the service complaints process more efficient and to strengthen the commissioner role. That was the basis of the Armed Forces (Service Complaints and Financial Assistance) Bill that received Royal Assent on 26 March this year. As she is aware, the Act shortens the complaints process and replaces the commissioner with a new Service Complaints Ombudsman. Implementation is expected in January. The ombudsman will have significant new powers, while maintaining the right balance between the authority of the military chain of command, which must be responsible for looking after its own people, and strong independent oversight through the ombudsman.

Nicola Williams, the former ombudsman in the Cayman Islands, with whom I had a useful conversation the other day, took over as the commissioner in January and will become the first ombudsman, subject to approval by Her Majesty the Queen. Nicola Williams’s first annual report on the fairness, effectiveness and efficiency of the service complaints process was published on 24 March. The Government’s response was published on 16 July 2015.

The noble Baroness, Lady Jolly, asked me whether the Explanatory Memorandum reflects the content of Mr Morrison’s letter. I will have to get back to her on the answer to that.

As for the timetable for the Armed Forces Bill, I anticipate that it will be introduced into Parliament shortly. I cannot comment on its content before that happens, but my understanding is that the Bill should be under way in October.

Motion agreed.