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Armed Forces Bill (HC Bill 202)

A

BILL

[AS AMENDED IN THE COMMITTEE]

TO

Continue the Armed Forces Act 2006; to amend that Act and other enactments
relating to the armed forces and the Ministry of Defence Police; to amend the
Visiting Forces Act 1952; to enable judge advocates to sit in civilian courts; to
repeal the Naval Medical Compassionate Fund Act 1915; to make provision
about the call out of reserve forces; and for connected purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Duration of Armed Forces Act 2006

1 Duration of Armed Forces Act 2006

For section 382 of AFA 2006 (duration of armed forces legislation) substitute—

382 Duration of this Act

(1) 5This Act expires at the end of one year beginning with the day on which
the Armed Forces Act 2011 is passed (but this is subject to subsection
(2)).

(2) Her Majesty may by Order in Council provide that, instead of expiring
at the time it would otherwise expire, this Act shall expire at the end of
10a period of not more than one year from that time.

(3) Such an Order may not provide for the continuation of this Act beyond
the end of the year 2016.

(4) No recommendation may be made to Her Majesty in Council to make
an Order under subsection (2) unless a draft of the Order has been laid
15before, and approved by resolution of, each House of Parliament.

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Armed forces covenant report

2 Armed forces covenant report

After section 359 of AFA 2006 insert—

359A Armed forces covenant report

(1) 5The Secretary of State must in each calendar year—

(a) prepare an armed forces covenant report; and

(b) lay a copy of the report before Parliament.

(2) An armed forces covenant report is a report about effects of
membership, or former membership, of the armed forces on service
10people, or particular descriptions of such people—

(a) in the fields of healthcare, education and housing; and

(b) in such other fields as the Secretary of State may determine.

(3) In preparing an armed forces covenant report the Secretary of State
must have regard in particular to—

(a) 15the unique obligations of, and sacrifices made by, the armed
forces;

(b) the principle that it is desirable to remove disadvantages arising
for service people from membership, or former membership, of
the armed forces; and

(c) 20the principle that special provision for service people may be
justified by the effects on such people of membership, or former
membership, of the armed forces.

(4) An armed forces covenant report must state whether, in the Secretary
of State’s opinion, any effects covered by the report are such that
25service people or particular descriptions of service people are at a
disadvantage as regards the field or fields in question, when compared
with other persons or such descriptions of other persons as the
Secretary of State considers appropriate.

(5) Where the Secretary of State’s opinion is that service people or
30particular descriptions of service people are at a disadvantage as
mentioned in subsection (4), the report must set out the Secretary of
State’s response to that.

(6) As regards effects covered by an armed forces covenant report—

(a) the Secretary of State must consider whether the making of
35special provision for service people or particular descriptions of
service people would be justified; and

(b) where the Secretary of State considers that such provision
would be justified, the report must contain a reference to that
fact.

(7) 40In this section “service people” means—

(a) members of the regular forces and the reserve forces;

(b) members of British overseas territory forces who are subject to
service law;

(c) former members of any of Her Majesty’s forces who are
45ordinarily resident in the United Kingdom; and

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(d) relevant family members.

(8) In this section—

  • “British overseas territory force” means any of Her Majesty’s
    forces that is raised under the law of a British overseas territory;

  • 5“membership or former membership” of a force, in relation to a
    person, includes any service in that force that that person is
    undertaking, undertook or may be expected to be called on to
    undertake;

  • “relevant family members” means such descriptions of persons
    10connected with service members, or with persons who were
    service members, as the Secretary of State considers should be
    covered by a report or part of a report;

  • “service member” means a person who falls within any of
    paragraphs (a) to (c) of subsection (7).

(9) 15In this section any reference to membership or former membership of
the armed forces is to be read, in relation to a person who is—

(a) a service member, or

(b) a relevant family member by reason of connection with a person
who is or was a service member,

20as a reference to the service member’s membership or former
membership of a force mentioned in subsection (7).

(10) In relation to any particular description of service people covered by a
report, the reference in subsection (2)(a) to the fields of healthcare,
education and housing is to such of those fields as the Secretary of State
25considers are ones in which people of that description are affected by
membership or former membership of the armed forces.

Service Police and Ministry of Defence Police

3 Provost Marshal’s duty in relation to independence of investigations

After section 115 of AFA 2006 insert—

30Provost Marshal’s duty in relation to independence of investigations

115A Provost Marshal’s duty in relation to independence of investigations

(1) This section applies in relation to each service police force.

(2) The Provost Marshal of the force has a duty, owed to the Defence
Council, to seek to ensure that all investigations carried out by the force
35are free from improper interference.

(3) “Improper interference” includes, in particular, any attempt by a
person who is not a service policeman to direct an investigation which
is being carried out by the force.

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4 Inspection of service police investigations

After section 321 of AFA 2006 insert—

CHAPTER 4A Inspection of service police investigations

321A Inspection of service police investigations

(1) 5Her Majesty’s Inspectors of Constabulary (“the inspectors”) are to
inspect, and report to the Secretary of State on, the independence and
effectiveness of investigations carried out by each service police force.

(2) In this section “investigations” means investigations of matters where
service offences have or may have been committed, and includes
10investigations outside the United Kingdom.

(3) For the purposes of subsection (1) the inspectors may—

(a) undertake such number of inspections as they think
appropriate;

(b) undertake inspections when they think it appropriate; and

(c) 15decide which aspects of, or matters related to, investigations by
a service police force are to be the subject of a particular
inspection;

but this is subject to subsection (4).

(4) The Secretary of State may at any time require the inspectors to inspect,
20and report to the Secretary of State on, any or all of the following—

(a) the independence of investigations carried out by a particular
service police force;

(b) the effectiveness of such investigations;

(c) a particular aspect of, or matter related to, such investigations.

321B 25Inspectors’ reports to be laid before Parliament

(1) The Secretary of State must lay before Parliament each report made
under section 321A.

(2) The Secretary of State may exclude from a report laid before Parliament
under this section any material whose publication, in the Secretary of
30State’s opinion—

(a) would be against the interests of national security; or

(b) might jeopardise the safety of any person.

5 Provost Marshals: appointment

(1) After section 365 of AFA 2006 insert—

35Provost Marshals

365A Provost Marshals: appointment

(1) No appointment of a person to be Provost Marshal of a service police
force may be made except by Her Majesty.

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(2) To be eligible for appointment as a Provost Marshal, a person must be
a provost officer.

6 Ministry of Defence Police: performance regulations

In section 3A of the Ministry of Defence Police Act 1987 (regulations relating to
5disciplinary matters), in each of subsections (1)(a) and (1A) after “conduct”
insert “, efficiency and effectiveness”.

Powers of entry, search and seizure

7 Power of judge advocate to authorise entry and search

For section 83 of AFA 2006 (power of judge advocate to authorise entry and
10search) substitute—

83 Power of judge advocate to authorise entry and search

(1) On an application made by a service policeman, a judge advocate may,
if the relevant requirements are met, issue a warrant authorising a
service policeman to enter and search—

(a) 15one or more sets of premises specified in the application; or

(b) any relevant residential premises occupied or controlled by a
person specified in the application, including such sets of
premises as are so specified.

(a)(a)one or more sets of premises specified in the application; or

(b) 20any relevant residential premises occupied or controlled by a
person specified in the application, including such sets of
premises as are so specified.

(2) The relevant requirements are met (subject to subsection (3)) if the
judge advocate is satisfied that each set of premises specified in the
25application is relevant residential premises and that there are
reasonable grounds for believing—

(a) that a relevant offence has been committed;

(b) that material which is likely to be of substantial value (whether
by itself or together with other material) to the investigation of
30the offence is—

(i) in the case of a warrant authorising entry and search of
specified premises, on those premises;

(ii) in the case of a warrant authorising entry and search of
any relevant residential premises occupied or controlled
35by a specified person, on one or more sets of such
premises occupied or controlled by that person;

(c) that the material would be likely to be admissible in evidence at
a trial for the offence;

(d) that it does not consist of or include items subject to legal
40privilege, excluded material or special procedure material; and

(e) that at least one of the conditions specified in subsection (4)
applies in relation to each set of premises specified in the
application.

(3) If the application is for a warrant authorising entry and search of any
45relevant residential premises occupied or controlled by a specified
person, the judge advocate must also be satisfied—

(a) that, because of the particulars of the offence mentioned in
subsection (2)(a), there are reasonable grounds for believing
that in order to find the material mentioned in subsection (2)(b)

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it is necessary to search relevant residential premises that are
occupied or controlled by the person in question and are not
specified in the application; and

(b) that it is not reasonably practicable to specify in the application
5all the relevant residential premises that the person occupies or
controls and that might need to be searched.

(4) The conditions mentioned in subsection (2)(e) are—

(a) that it is not practicable to communicate with any person
entitled to grant entry to the premises;

(b) 10that it is practicable to communicate with a person entitled to
grant entry to the premises, but it is not practicable to
communicate with any person entitled to grant access to the
evidence;

(c) that entry to the premises will not be granted unless a warrant
15is produced;

(d) in the case of service living accommodation within section
96(1)(b) or (c)—

(i) that it is not practicable to communicate with the person
or (as the case may be) any of the persons for whom the
20accommodation is provided; or

(ii) that there is no such person with whom it is practicable
to communicate who will agree to grant access to the
accommodation without the production of a warrant;

(e) that the purpose of a search may be frustrated or seriously
25prejudiced unless a service policeman arriving at the premises
can secure immediate entry to them.

(5) A warrant under this section may authorise entry to and search of
premises on more than one occasion if, on the application for the
warrant, the judge advocate is satisfied that it is necessary to authorise
30multiple entries in order to achieve the purpose for which the warrant
is issued.

(6) If the warrant authorises multiple entries, the number of entries
authorised may be unlimited, or limited to a maximum.

(7) A service policeman may seize and retain anything for which a search
35has been authorised under subsection (1).

8 Power to make provision about access to excluded material etc

(1) Section 86 of AFA 2006 (power to make provision about access to excluded
material etc) is amended as follows.

(2) For subsections (1) and (2) substitute—

(1) 40The Secretary of State may by order make provision that enables a
service policeman, for the purposes of an investigation of a relevant
offence and by making an application to a judge advocate in accordance
with the order—

(a) to obtain access to excluded material or special procedure
45material on relevant residential premises; or

(b) to obtain access to material (other than items subject to legal
privilege) on premises other than relevant residential premises.

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(2) An order under this section (an “enabling order”) may in particular—

(a) so far as it relates to obtaining access to material on relevant
residential premises, make provision equivalent to any
provision of Schedule 1 to PACE (special procedure for
5obtaining production orders and warrants);

(b) so far as it relates to obtaining access to material on premises
other than relevant residential premises, make provision
equivalent to any provision of paragraphs 1 to 11 of that
Schedule (special procedure for obtaining production orders);

(c) 10make provision equivalent to section 311(2) and (3) of this Act
(certification to civil court of offences akin to contempt) in
relation to a failure by a person within section 309(6) to comply
with an order made by a judge advocate under the enabling
order;

(d) 15authorise the use, in connection with any application made by
virtue of the enabling order, of live television or telephone links
or similar arrangements.

(2A) Any power under subsection (2) to make provision which is equivalent
to another provision includes power to make provision which is
20equivalent subject to such modifications as the Secretary of State
considers appropriate.

(3) For subsection (4) substitute—

(4) In this section the following expressions have the meanings given by
section 84—

  • 25“excluded material”;

  • “items subject to legal privilege”;

  • “relevant offence”;

  • “special procedure material”.

Alcohol and drugs

9 30Unfitness through alcohol or drugs

In section 20 of AFA 2006 (unfitness or misconduct through alcohol or drugs),
after subsection (1) insert—

(1A) For the purposes of subsection (1) a person is to be taken to be unfit to
be entrusted with his duty, or a duty which he might reasonably expect
35to be called upon to perform, if his ability to carry out the duty in
question is impaired.

10 Exceeding alcohol limit for prescribed safety-critical duties

After section 20 of AFA 2006 insert—

20A Exceeding alcohol limit for prescribed safety-critical duties

(1) 40A person subject to service law (“P”) commits an offence if the
proportion of alcohol in P’s breath, blood or urine exceeds the relevant
limit at a time when P—

(a) is performing, or purporting to perform, a prescribed duty; or

(b) might reasonably expect to be called on to perform such a duty.

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(2) In subsection (1) “prescribed duty” means a duty specified, or of a
description specified, by regulations; but a duty or description may be
specified only if performing that duty (or a duty of that description)
with ability impaired by alcohol would result in a risk of—

(a) 5death;

(b) serious injury to any person;

(c) serious damage to property; or

(d) serious environmental harm.

(3) In this section “the relevant limit”, in relation to a duty specified or of a
10description specified by regulations, means the limit prescribed by
regulations in relation to that duty or duties of that description.

(4) In this section “regulations” means regulations made by the Defence
Council for the purposes of this section.

(5) A person guilty of an offence under this section is liable to any
15punishment mentioned in the Table in section 164, but any sentence of
imprisonment imposed in respect of the offence must not exceed two
years.

11 Testing for alcohol and drugs on suspicion of offence

(1) After section 93 of AFA 2006 insert—

CHAPTER 3A 20Testing for alcohol and drugs on suspicion of offence

Preliminary testing for alcohol and drugs
93A Commanding officer’s power to require preliminary tests

(1) This section applies where the commanding officer of a person subject
to service law has reasonable cause to believe that that person—

(a) 25is committing a relevant offence; or

(b) has committed a relevant offence and still has alcohol or a drug
in the body or is still under the influence of a drug.

(2) In this section “relevant offence” means—

(a) an offence under section 20A; or

(b) 30an offence under section 20(1)(a) in respect of a safety-critical
duty (as defined by section 93I).

(3) This section also applies where the commanding officer of a person
who is a civilian subject to service discipline has reasonable cause to
believe that that person—

(a) 35is committing an offence under section 42 as respects which the
corresponding offence under the law of England and Wales is
an offence under section 78, 79, 92 or 93 of the Railways and
Transport Safety Act 2003 (maritime and aviation offences); or

(b) has committed such an offence under section 42 and still has
40alcohol or a drug in the body or is still under the influence of a
drug.

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(4) The commanding officer may require the person mentioned in
subsection (1) or (3) (“the suspected person”) to co-operate with any
one or more of—

(a) a preliminary breath test (see section 93B);

(b) 5a preliminary impairment test (see section 93C);

(c) a preliminary drug test (see section 93D).

(5) The Defence Council may by regulations provide for the delegation by
a commanding officer of the commanding officer’s functions under this
section.

(6) 10A person who, without reasonable excuse, fails to comply with a
requirement imposed under subsection (4) commits an offence.

(7) A person guilty of an offence under this section is liable to any
punishment mentioned in the Table in section 164, but any sentence of
imprisonment imposed in respect of the offence must not exceed two
15years.

(8) For the purposes of this section, a person does not co-operate with a
preliminary test unless the person’s co-operation—

(a) is sufficient to enable the test to be carried out; and

(b) is provided in such a way as to enable the objective of the test to
20be satisfactorily achieved.

93B Preliminary breath test

(1) A preliminary breath test is a procedure administered by a service
policeman under which—

(a) the suspected person provides a specimen of breath; and

(b) 25the specimen is used for the purpose of obtaining, by means of
an approved device, an indication whether the proportion of
alcohol in the person’s breath or blood is likely to be such as is
necessary for the commission of the suspected offence.

(2) A preliminary breath test may be administered only—

(a) 30at or near the place where the requirement to co-operate with
the test is imposed;

(b) at a service police establishment determined by the service
policeman; or

(c) at a medical establishment.

(3) 35In this section “the suspected offence” means an offence mentioned in
section 93A(2) or (3)(a) which the commanding officer has reasonable
cause to believe has been committed.

93C Preliminary impairment test

(1) A preliminary impairment test is a procedure under which a service
40policeman—

(a) observes the suspected person performing tasks specified by
the service policeman; and

(b) makes such other observations of the suspected person’s
physical state as the service policeman thinks expedient.

(2) 45A preliminary impairment test may be administered only—