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Armed Forces Act 2006 (Continuation) Order 2023

Volume 830: debated on Thursday 15 June 2023

Considered in Grand Committee

Moved by

My Lords, for those of us who have served as deck hands on the good ship HMS “Defence” for some time, this continuation order will have a certain familiar resonance, but formalities must prevail.

The purpose of the order is to continue in force the legislation governing the Armed Forces, the Armed Forces Act 2006, for a further period of one year until December 2024. Our annual consideration of the legislation governing the Armed Forces, the 2006 Act, reflects the constitutional requirement under the Bill of Rights that the Armed Forces may not be maintained without the consent of this Parliament. So, while this is a routine item of parliamentary business, it is also one that must be done.

I remind your Lordships that there is a five-yearly renewal by Act of Parliament, which is the primary purpose of the Armed Forces Act. As noble Lords will recall, the most recent was in 2021, and another will be required before the end of 2026. Between each five-yearly Act, annual renewal is by Order in Council, such as the one before us today.

If the Order in Council is not made by the end of 14 December 2023, the Armed Forces Act 2006 will automatically expire, in effect ending the powers and provisions to maintain our Armed Forces as disciplined bodies. As your Lordships will understand, this would have real consequences, as servicepersons have no contract of employment and thereby no duty as employees; instead, they owe a duty of allegiance to His Majesty and an obligation to obey lawful commands. This duty is enforced through the 2006 Act, which contains the provisions for the maintenance of the Armed Forces, including the systems of command, justice and discipline. If the order were not to be renewed, while servicepersons will continue to owe a duty to His Majesty, Parliament will have removed the power of enforcement—that 2006 Act. Consequently, this will leave courts martial and commanding officers powerless to punish transgressors for criminal conduct or disciplinary matters.

Therefore, the continuation of this Act is essential for the maintenance of discipline wheresoever in the world servicepersons do serve—that sounds straight out of the 17th century, I have to say.

Importantly, the act of renewal also presents Parliament with an opportunity to reflect on and pay gratitude to those who protect us and defend our country’s interest in a very uncertain world—a world which will see the Defence Command Paper refresh tackle the issue of how the UK’s Armed Forces will keep pace with, and be able to counter, the evolving threats in the international environment, while building on the original work of earlier Command Papers.

It is vital that our Armed Forces maintain a state of readiness to work with and support our NATO allies and partners to combat today’s—and tomorrow’s—threats, wherever they arise, as exemplified by the professionalism of our service personnel in their unstinting efforts, for example, to instruct and train thousands of Ukrainian men and women in our combined arms approach to warfare, which may prove pivotal to the outcome of the ongoing counter-offensive.

At present, the stakes could not be higher, with the very fabric and stability of the rules-based international system under threat from rogue actors with delusions of imperial irredentism, threatening to abandon law and diplomacy in favour of a “might is right” attitude. That is why we in the United Kingdom, along with our Armed Forces, stand shoulder to shoulder with our Ukrainian partners, providing them with much-needed assistance in the form of kit, equipment, training and funding.

I also salute the courageous and unstinting efforts that saw the UK complete the largest and longest evacuation by any western country during the recent emergency operation in Sudan, where thousands of people were successfully and safely airlifted out of that troubled country.

That warmth of sentiment towards our brave service people reflects this Government’s drive to do more for those who protect us. That is why the Ministry of Defence is currently considering the comprehensive report by the independent Haythornthwaite review, which has looked in depth at what more we can do to incentivise and retain our service personnel, in a way that better balances the entirety of the package we offer them in return for their service. This report will provide an invaluable guide to developing a holistic strategy for defence, enabling it to recruit, incentivise and retain people with the skills that we will need over the coming decades. Importantly, the measures stemming from the review will help to ensure that defence keeps pace with the ever-changing ways of modern working and living. For noble Lords’ information, the report has been submitted to my right honourable friend in the other place, the Secretary of State for Defence, who will respond in due course to its invaluable contents.

Lastly, our consent for the order is an opportunity for us all to acknowledge the debt that we owe to those who serve us so bravely and professionally. I hope that noble Lords will support and approve this draft continuation order, which will provide the sound legal basis for our Armed Forces to continue to protect us. I beg to move.

My Lords, this annual request to approve the Armed Forces Act 2006 (Continuation) Order is a bit like Christmas or birthdays—it seems to come round ever more frequently. In particular, the fact that we have to renew it in June in order for the continuation to happen in December really seems to speed up the process.

It is an annual request to give approval to which the only thing we can really do is say “Yes, we are content”. On the previous item of business, there was one question to the Minister and one answer, which was in the negative. For this statutory instrument, it would be very easy to say that we endorse everything the Minister has said, we wish His Majesty’s Armed Forces well, and let us move on.

However, the Minister has invited us not only to give approval to the continuation order but to reflect on and pay tribute to His Majesty’s Armed Forces. As so often from these Benches, I am very happy to do so, and I am assuming that the noble Lord, Lord Tunnicliffe, will do something similar from the Labour Benches because, on questions of defence, we tend to agree. We are committed to supporting our Armed Forces and doing precisely what the Minister has indicated we need to think about, which is looking at the recruitment and retention of, and incentivisation and motivation for, our Armed Forces. I was very pleased to hear that the Government are looking at a new report; we look forward to hearing more about that.

His Majesty’s Armed Forces serve this country incredibly well, whether it is responding to domestic crises, whether it is doing something which perhaps they never anticipated doing, such as covering in the case of strikes, or whether it is doing the jobs that they have perhaps anticipated, such as the evacuation in Sudan or giving support to Ukraine. So there are many roles that we ask of His Majesty’s Armed Forces, and they always come up to the mark and serve us incredibly well.

A question for the Minister is: do we serve our Armed Forces so well? Are we giving them the support that they need? Obviously, the Minister has already said that the Secretary of State will come forward at some point with a response to the new report, but it would be good to know whether she feels that we really are doing what we need to be doing. We have a very small Armed Forces. Are they sufficiently large? Should we look again at increasing their size because of the increased challenges that we are facing? It was fine to have a peace dividend in the wake of the Cold War. We are no longer in a peaceful situation. Have His Majesty’s Government considered whether the size of the Armed Forces is adequate?

When thinking about what support they give to the Armed Forces, have the Government given any further thought to whether they themselves should be subject to the Armed Forces covenant? I know that I have asked the Minister about this before, to which she has responded, but I want to come back to it because there is a question of imposing duties on local authorities and other employers when perhaps the Government should be doing that themselves.

Obviously, we have a formality to do. This statutory instrument is essential, and I am very happy to say that we support the continuation of the Armed Forces Act 2006. We look forward to rubber-stamping it in the main Chamber when it is agreed that the Grand Committee has indeed considered this statutory instrument, even if I think that there will not be too many questions detaining the Minister.

I wish I had taken the trouble to count the number of times I have done this order.

I welcome the opportunity today to speak for the Opposition on this instrument. It is important not because it has any significant policy or legislative impact but because it provides this House with an opportunity to further demonstrate its support for our Armed Forces by providing a continuance to the system of command, discipline and justice to which they operate.

However, it is of course important, because without the continuation of the 2006 Act, in January we would have a military with no legal requirement to follow orders and implement other disciplinary and criminal procedures. This is something that we have repeated annually since the 1689 Bill of Rights, one of the foundational pieces of our constitutional jigsaw. Given the formality of repeating something for hundreds of years, it is important to re-emphasise, as we have rightly done many times recently, the pride we share in our military, which embodies the very best of Britain. This has been demonstrated particularly in response to the Russian invasion of Ukraine, throughout Covid, and continually for a long time before. Those who serve in our Armed Forces spread and share the finest of our values across the globe, putting themselves in harm’s way to guarantee the safety of us, our friends and our families, and they are an essential part of our national defence, resilience, and obligations under NATO to our allies.

That is why it is disappointing that, in the Defence Secretary’s own words, our forces, for which we have so much responsibility, have been “hollowed out and underfunded”. The fact that this instrument is focused on the disciplinary system of the Armed Forces and that it is that which must be renewed annually implicitly makes the point that it is people, whether those in uniform or the civilians who support their work, and not just equipment, weapons, vehicles and ammunition, who make up the bedrock of our Armed Forces.

Yet just a few weeks ago, the very same Defence Secretary who said that the Armed Forces had been hollowed out confirmed that the Government were continuing with their plans to shrink troop numbers to an all-time low, in his words to “shield them from further reductions”. I cannot say that I understand the logic there, but I have heard the views of wise and vastly experienced military leaders who fear the impact of these cuts.

Over the past year and a half especially, our Armed Forces have done a tremendous job. I will even acknowledge the defence leadership shown by the Government since Russia invaded Ukraine. However, I also hope that the Government go away and reflect on these decisions so that, alongside the provisions maintained by this instrument, their capacity to continue operating at such a high level also remains year after year.

My Lords, I thank the noble Baroness, Lady Smith, and the noble Lord, Lord Tunnicliffe, for the brevity of their remarks, as I think the prevailing temperature in the Moses Room is not designed to afford maximum comfort to its occupants. I am very grateful to both noble Lords for their thoughtfulness. I also very much appreciate their tributes to our Armed Forces. As I have said before in the Chamber, a lot of what we say and do in this Parliament resonates far beyond it, including to an audience of our Armed Forces. It is very important for them to know that there is absolute unanimity in Parliament on our regard and respect for them, our desire to do our best for them and our undoubted gratitude to them for the tremendous contribution they make to our country—not just in keeping us safe and the wider obligations we require of them, but in the incredible contribution they have made to civilian life in MACA, which has been prominent in recent times, as your Lordships will be aware.

The noble Baroness, Lady Smith, raised the important issue of recruitment and retention and asked the pertinent question of whether we serve our Armed Forces well. The answer is that we try; we certainly hope that we do, but that is where parliamentary scrutiny and the call for accountability of the Government by opposition parliamentarians is so important. I refer again to the Haythornthwaite review, which was designed to look at the current offer to our people. The offer has many positive financial and non-financial elements—there is no doubt about it—and our Armed Forces acknowledge that, but it needs to be modernised to reflect how we will ask them to operate in future against the changing threats we face, as set out in the integrated review and the integrated operating concept.

We need a modernised offer to allow our Armed Forces to better harness valuable skills, whether that is regular or reserve. We need to improve recruitment and retention and to be consistent with family life and people’s changing expectations of work in the 21st century. The Haythornthwaite review will be a very important contributor to that thought and decision-making process; it will be a signpost as to how we take things forward. As I said earlier, the review has concluded and the report is with the Secretary of State. He will determine the Government’s response in due course, but there will be a desire to place it in the public domain.

Both the noble Baroness and the noble Lord asked, “Do we have enough of them?” The noble Lord referred to the acceptance of having hollowed out, over decades, our land capability in particular. I say in response that, in the combination of the Integrated Review Refresh 2023 and the defence Command Paper refresh—which is very much a live and vibrant document, requiring constant ministerial involvement, and expected to become public in early course—we have the whole question of what we are trying to plan for. What is the threat? Where is it? What is its character and how do we formulate our Armed Forces to be in a position to respond to it? In this challenging day and age, with a maelstrom of activity, the hybrid character of threat and the opportunity for new technology, we will need to make some important decisions about how we marry all that in an intelligible fashion to ensure that we have the capability we need to deal with the hybrid character of the threat as it now exists.

I cannot be drawn much further on the detail of that; suffice it to say that I give your Lordships my assurance that the MoD is very cognisant of the need to be able to demonstrate—not just for the satisfaction of opposition politicians but, very importantly, to potential adversaries—that we have a serious, workable, effective capability.

The noble Baroness asked whether I could give a little more information on the covenant. She is absolutely correct: this arose when we were looking at the Armed Forces Bill in 2021. Helpfully, that Act extended the reach of the covenant to providers of housing, education and health services across the United Kingdom. The question arose of whether it should extend to central government and the devolved Administrations. I say to both the noble Baroness and the noble Lord that we provided an update in The Armed Forces Covenant and Veterans Annual Report 2022 in December last year, outlining the scope and methodology for conducting the review. The Government will report on the results of this review in the 2023 covenant and veterans annual report, when we will provide more information.

I think I have dealt with the specific points raised. I thank noble Lords for their contributions and I commend this instrument to the Committee.

Motion agreed.

Committee adjourned at 2.27 pm.