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Armed Forces Act 2006 (Amendment of Schedule 2) Order 2017

Volume 788: debated on Monday 22 January 2018

Motion to Approve

Moved by

My Lords, the instrument that we are considering today is the Armed Forces Act 2006 (Amendment of Schedule 2) Order 2017.

The Armed Forces Act 2006 established a single system of service law that applies to the personnel of all three services, wherever in the world they are operating. The Act provides nearly all the provisions for the existence of a system for the Armed Forces of command, discipline and justice. It covers matters such as offences, the powers of the service police, and the jurisdiction and powers of commanding officers and of the service courts, in particular the courts martial.

The draft instrument amends Schedule 2 to the 2006 Act. Schedule 2 lists serious service offences to which special rules on investigation and charging apply. The offences listed in that schedule are commonly referred to as Schedule 2 offences. They include serious disciplinary offences, such as mutiny and desertion, and serious criminal offences, such as murder, manslaughter and certain sexual offences.

The 2006 Act imposes a special duty on commanding officers with respect to the investigation of allegations of Schedule 2 offences and of circumstances which indicate that a Schedule 2 offence may have been committed by someone under their command. Under Section 113 of the 2006 Act, a commanding officer who becomes aware of such allegations or circumstances must ensure that the service police are aware of them as soon as reasonably practicable.

The Act also imposes a duty on members of the service police forces with respect to the investigation of Schedule 2 cases. Under Section 116 of the 2006 Act, the service police must refer a case to the Director Service Prosecutions if they consider that there is sufficient evidence to charge a person with a Schedule 2 offence. The offences listed in Schedule 2 include all offences under Part 1 of the Sexual Offences Act 2003, except: sexual assault, voyeurism, exposure and sexual activity in a public lavatory.

There has been much debate in recent years about whether these four offences should be listed in Schedule 2. Indeed, this House was instrumental in making the case for change. At the heart of those debates was the question of whether a commanding officer should have a role in the investigation of any allegations or circumstances which would indicate to a reasonable person that one of these offences has, or may have been, committed by a person under their command.

For the avoidance of doubt, I want to make clear what the Armed Forces Act 2006 requires of a commanding officer who becomes aware of allegations or circumstances which indicate that a service offence other than a Schedule 2 offence has or may have been committed. The commanding officer may ensure that, as soon as reasonably practicable, the matter is reported to the service police. Alternatively, he or she may ensure that the matter is appropriately investigated. An investigation other than by the service police will in some cases be appropriate because service offences include all offences which may be committed by service personnel under the 2006 Act, including the less serious disciplinary offences.

The Manual of Service Law gives special guidance to commanding officers about allegations of the four offences to which I have referred—sexual assault, voyeurism, exposure and sexual activity in a public lavatory. The manual requires that a commanding officer who becomes aware of an allegation of one of these offences must take legal advice on whether it would be appropriate to call in the service police. Access to such legal advice is available 24 hours a day, seven days a week. The manual also makes it clear that there is a presumption that allegations of such offences will normally be reported to the service police, and the Armed Forces have policies in place which require all allegations of sexual offences to be referred to the service police. So it will rarely be appropriate for the commanding officer not to report an allegation of sexual assault to the service police.

I recall, however, the strength of feeling with which noble Lords argued, during the passage of the Armed Forces Act 2016, that our existing policies and procedures did not go far enough. Recognising the importance of this issue, the Government decided that the time was right to take a fresh look at whether the four offences to which I have referred should be listed in Schedule 2. That review happened and the then Minister for Defence Veterans, Reserves and Personnel announced in November 2016 that the offences of sexual assault, voyeurism and exposure should be included in Schedule 2 to the Armed Forces Act 2006. This will mean that a commanding officer who becomes aware of an allegation or circumstances which indicate that any of these offences has or may have been committed must refer the matter to the service police.

As I have said, this happens already as a matter of policy, but the instrument we are considering today will ensure that it must happen as a matter of law. I am sure noble Lords will welcome this change. Perceptions about how we fulfil our obligations are just as important as the mechanisms we actually have in place to do so. We recognise the great courage it takes to come forward and report a sexual offence, which is precisely why the Armed Forces have extensive support in place for those affected. Steps are being taken to provide better education. Helplines, awareness campaigns and training presentations around sexual consent are helping to ensure that service personnel know how to report concerns and what support is available to them. It is therefore right that the Government have listened to the concerns of Parliament and others to make sexual assault, exposure and voyeurism Schedule 2 offences.

For completeness, I should also say something about the fourth offence to which I referred earlier. The offence of sexual activity in a public lavatory is a public order offence which covers a very wide range of activity, including consensual activity. It also applies only to activity in a lavatory to which the public have access and therefore it is likely to be prosecuted as a civilian offence, not a service offence. For these reasons, we do not believe that it would be appropriate to add the offence of sexual activity in a public lavatory to Schedule 2.

In conclusion, we are continually looking for ways to enhance our processes and to make sure that the service justice system continues to be relevant and as effective as it can be. The order that we are considering today contributes to that effort. I beg to move.

My Lords, I have considered the Motion and concluded that this is almost a tidying-up order that is compatible with public opinion. I was convinced of its value before I heard the Minister, and he failed to unconvince me. So I have just a couple of questions, and to some extent he has answered them.

On service law instruments, I always worry about the level of consultation. When one reads what the consultation has been, it seems—how can I put it?—top-heavy. Clearly, many heads have been consulted. I have two questions. One is about the extent of consultation in the chain of command. Are commanding officers seeing in this change any problems that have not been brought out in the Explanatory Memorandum? Secondly, with service law there is always a question about the extent to which the service personnel concerned have been consulted. We know about the very atmosphere of the military. There are no trade unions or consultative systems. I wonder whether the Government should think more about this area. At the end of the day, this piece of law is about how day-to-day soldiers, sailors and airmen behave towards one another.

Finally—perhaps this has been partially answered—the issue of sexual assault now has more saliency, which has the benefit that people have a higher propensity to report it, with the result that, for those who commit these offences, there is a higher likelihood of punishment under the law. But the object of the exercise is not to have the offences in the first place. That seems to go to the other side of the equation. The Minister talked about making sure that personnel were advised of their rights. We know that the complex area of sexual behaviour can vary between President Trump’s definition of what is not a sexual assault through to the more modern attitude that our young people in the forces are likely to have. As part of the ongoing relationship with our service personnel, is there training, first, in what service law says on the matter, and, secondly, in what I call the almost ethical issues behind sexual behaviour, and in particular the concept of mutual respect? If one could create an overall atmosphere of mutual respect among individuals, where they think more about the impact of their behaviour on others, it would be helpful in every way in service life, and would be particularly helpful in this area. With those very minor comments, we on this side support the order.

My Lords, I give a very hearty welcome to this statutory instrument. It follows on from our debates in Committee and on Report on what became the Armed Forces Act 2016—and, in particular, on an amendment moved by the noble Lord, Lord Touhig, and my noble friend Lady Jolly. I, too, spoke in that debate. At that point the Minister was not prepared to accept the amendment because he said that the wide ambit of the concept of sexual assault could even include putting your arm around someone’s shoulders. However, he told us that the Service Justice Board was taking a fresh view in light of the arguments and concerns expressed by outside bodies, including in particular Liberty. This is the excellent result.

Military life has its own constraints: there is a very enclosed, if important, society within the Armed Forces. There is an atmosphere in which people do not want to make complaints. As a result, there is a reluctance to complain of and report offences of this nature. It is interesting to look at the American experience. Some noble Lords may recall that I spoke of an inquiry about the CO’s role in military justice in the United States. I gave evidence in September 2013 at a Department of Defense hearing in Washington on what the law was in this country. It was a privilege at that time to hear Senator Kirsten Gillibrand, the junior senator for New York, give evidence. She has been engaged in a campaign to remove military commanders from prosecuting decisions in the United States, as they have been in serious offences in this country. Although she was not successful at that time, she has pursued the matter and brought forward a number of Acts to Congress. Although the Military Justice Improvement Act has bipartisan support, it has been filibustered out of Congress twice. However, she is still pursuing the matter. Her description of the Act is worth quoting because it highlights the problem:

“The carefully crafted Military Justice Improvement Act is designed to professionalize how the military prosecutes serious crimes like sexual assault, and to remove the systemic fear that survivors of military sexual assault describe in deciding whether to report the crimes committed against them. Repeated testimony from survivors and former commanders says that the widespread reluctance on the part of survivors to come forward and report is due to the bias and inherent conflicts of interest posed by the military chain of command’s sole decision-making power over whether cases move forward to a trial”.

She very much looks to the British example and the way we handle it in this country and points out that, in the most recent report in America, 6,000 sexual assaults were reported in the military, which was thought to be only 30% of all assaults committed. Importantly, 60% of the people who made those 30% of reports complained of further retaliation and reprisal after their complaint was made. It is important that we are aware in this country of the possibility of reprisal and retaliation within that closed community. One has only to think of the tragic case of Anne-Marie Ellement, who committed suicide after charges she brought against two members of the Military Police were dismissed, because of the bullying she received for having made the complaint in the first place. I am sure things have improved, but this is an important matter that I hope the Minister and the Ministry of Defence in this country will think about.

Another matter discussed while the Bill was going through in 2016 was the production of statistics. That has been followed through, as the Minister promised at the time, and we see from the statistics produced that there were 104 investigations in 2016. I am sure that is only a tiny minority of the actual assaults that have taken place. Again, this is because of the atmosphere that prevents reporting within the military community.

So far as the United States is concerned, only 9% of the 6,000 complaints of assault led to a conviction. Indeed, Senator Gillibrand concluded that a victim was 12 times more likely to suffer retaliation and reprisal than to see the person about whom they had complained convicted. I hope that is not the position in this country. The importance of dealing with sexual assaults is very much at the forefront of life today. In the military context, it is very important from the point of view of recruiting and retaining military personnel. I am very grateful to the Minister and to the Government for taking this important step in this statutory instrument.

My Lords, I pick up a point arising from the two speeches from these Benches and the Liberal Democrat Benches respectively. It is a long time since I did my two years’ national service, but I was for 35 years after that a trade union official. I pick up a point made by my noble friend Lord Tunnicliffe—namely, the services should reflect that in some respects service life is becoming more like civilian life, and is not just in a separate silo. For example, a lot of people deal with technical work, sitting in front of computers like everybody else. The long-standing civilian arrangements, which include a mandatory grievance procedure on the one side and a disciplinary procedure on the other, may be applicable to service personnel on a charge. Having been on a charge, I add that little twist to the matter. It is interesting to note the cultural changes that have occurred in the services. Women now hold senior ranks. I do not know what the most senior rank is that is held by a woman. For example, I do not know whether there is a female general, but women hold very senior ranks, including that of commanding officer. It would be interesting to get some feedback on how much the culture in the services has changed. Formerly, in any consultation where a parliamentarian was present, a senior officer would say, “Private, you agree with that, don’t you?”, and the reply was, “Yes, sir”. The point made by my noble friend Lord Tunnicliffe, and that made in a wider context from the Lib Dem Benches, are pertinent to the change in that culture.

My Lords, I am very grateful for the continued interest noble Lords have expressed in these matters. Lest there be any doubt, the Government have always made it clear—as have the services themselves—that there is no place for sexual offending in the Armed Forces. We have listened to the concerns raised in this House. I hope noble Lords are reassured by the steps we are taking today; it is indeed true that the Armed Forces take any allegation of any type of sexual offence very seriously. I noted with interest the comments of the noble Lord, Lord Lea of Crondall, on this subject. He is right: there is no doubt that since he undertook national service there has been a dramatic change of culture in all sorts of ways. One change is that there is now zero tolerance of this type of unacceptable behaviour. As to whether the increasing presence of women and women officers has made a difference in that regard, I would not hazard a guess, but it can only have been a beneficial influence, if there was any such influence from that quarter.

The noble Lord, Lord Tunnicliffe, asked me a number of questions, the first of which was whether we have consulted the service chiefs in drawing up this order. Our proposals to amend Schedule 2 to the 2006 Act have been agreed by the Service Justice Board, which includes the Second Sea Lord, the Deputy Chief of the General Staff and the Air Member for Personnel. The service chiefs collectively are of course absolutely clear that there is no place for sexual offending in the Armed Forces.

As to whether we have consulted the rank and file personnel of the Armed Forces, the answer is: not specifically at ground level. Each of the services is involved in the policy-making process and guidance will be issued by the chain of command to let people know of the changes being made. However, it is important to remind ourselves that the changes that we are making today already happen as a matter of policy—policy which the services themselves introduced.

I think the noble Lord’s concern on that aspect of the issue can be addressed in part by the measures that the Armed Forces are taking to prevent sexual allegations and offences arising in the first place—the subject of his third question. I assure him that the Armed Forces are committed to addressing sexual harassment and sexual assault through a range of actions, including awareness campaigns and training presentations around sexual consent. The Chief of the General Staff has made permanent cultural and behavioural change one of his priorities. To that end, there have been poster campaigns and training packages to better educate personnel on social norms, as well as on what is expected of them arising from Armed Forces rules and regulations. The noble Lord, Lord Thomas of Gresford, cited the experience of the United States armed forces in this context.

As regards the potential bias or perception of bias that can arise in cases of this kind, we recognise the great courage that it often takes to come forward and report a sexual offence. To ameliorate the tendency that some would have to refrain from coming forward, we strive to ensure, through training and awareness campaigns, that personnel know how to report any inappropriate behaviour and what will happen should they do so. It is to be hoped that these measures are gaining traction.

As the noble Lord is aware, we publish annual statistics on sexual offences in the service justice system on the GOV.UK website. Statistics are currently available for 2015 and 2016 for cases where the service police have been the lead investigating agency and where the service justice system has retained jurisdiction of a case throughout. Information for 2017 will be published in the spring. I remind noble Lords that data are drawn from the three main components of the service justice system: the service police dealing with the investigation of a crime; the service prosecution authority dealing with cases referred; and the Military Court Service, which lists the cases and reports on outcomes. Our annual statistics are in accordance with the requirements of the Office for National Statistics.

I hope that covers the questions that noble Lords have put to me.

Motion agreed.