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Session 1999-2000
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Delegated Legislation Committee Debates

Draft Army, Air Force and Navy Discipline Acts (Continuation) Order 2000

Fourth Standing Committee on Delegated Legislation

Tuesday 16 May 2000

[Mr. John Cummings in the Chair]

Draft Army, Air Force and Navy Discipline Acts (Continuation) Order 2000

10.30 am

The Secretary of State for Defence (Mr. Geoffrey Hoon): I beg to move,

    That the Committee has considered the draft Army, Air Force and Navy Discipline Acts (Continuation) Order 2000.

I am delighted to be here this morning. The Committee will be aware that Parliament is asked to consider an order of this nature in most years. Its purpose is straightforward: to continue in force for a further year the Army and Air Force Acts 1955 and the Naval Discipline Act 1957, which provide the statutory basis for discipline in the armed forces. As the Acts fulfil that purpose, it hardly needs me to emphasise that the Government attach the utmost importance to the order as the means of ensuring that the legislation remains in force. I therefore ask the Committee to approve the order, which will also be considered shortly in another place.

The only years in which we do not generally consider an order such as this is when the three service discipline Acts are up for renewal. That is achieved under the quinquennial Armed Forces Bill, which enables Parliament to review and renew the discipline Acts. The next Armed Forces Bill is due to be introduced in the forthcoming Session.

Before I move on, there is one observation that I should make about the order. The Government have undertaken that when Ministers move regulations such as this order that are subject to the affirmative procedure they will always inform the House whether they are satisfied that the instrument is compatible with the European convention on human rights. That is analogous with the procedure for primary legislation set out in section 19 of the Human Rights Act 1998, which provides that the Minister in charge of a Bill will certify that the Bill is compatible with convention rights or, if he or she is not satisfied that it is, they nevertheless wish the Bill to proceed.

The continuation order that we are considering today is a brief document, with words of such a mechanistic character that it is perhaps difficult to see how the issue of compatibility with the convention could be relevant. However, we must think about the purpose of the order, which is obviously to continue the life of the three Acts.

The Armed Forces Discipline Bill has extensively amended the three Acts in the present Session. The Bill had the specific purpose of addressing concerns about whether aspects of the service discipline Acts were compatible with the convention. However, it has yet to receive Royal Assent and its main provisions are not due to come into force until October. If for no other reason than that, the service discipline Acts are not yet entirely compatible with the convention, nor, therefore, technically, is this order, which renews them.

The discipline Bill was aimed at dealing with the most important convention points, and we are satisfied that it has done so in a way that preserves the essential characteristics of the discipline system. However, we are in the process of completing our trawl of the body of service legislation to see whether there are any residual convention issues to be dealt with. If there are, they will not be in such vital areas as those addressed in the discipline Bill, and the most appropriate vehicle for any changes that may be needed would appear to be the quinquennial Armed Forces Bill.

Nevertheless, as I said, the Government consider it essential that the order, which continues the legislative basis for the services' system of discipline, be approved. The system serves the armed forces well, but that is not to say that it is incapable of improvement. The Government have made clear their wish to alter the structure of the legislation, the better to fulfil the needs of the services and the way in which they operate.

In the strategic defence review, we stated our belief that

    there would be advantages to be gained from combining the three service discipline Acts into a single Act. Those differences that the services need to retain for operational reasons would be kept but reduced to the absolute minimum.

Those words, published in 1998, were the first time that a Government had expressed the intention to combine the three service discipline Acts into a single piece of legislation. It was prompted by the realisation that the present legislation does not provide the best framework for discipline in environments where the services work together in full joint environments, as is increasingly the case.

We are considering how best to give effect to the intention to develop a tri-service Act, bearing in mind, as was stated in the strategic defence review, that

    it would be a substantial and complex undertaking which will take some years to complete.

In the meantime, we have been taking stock of the intended consolidation of service legislation. In some minds, that appears to be confused with the creation of a tri-service Act, but all that consolidation would in fact achieve is the bringing up to date of the existing three separate Acts. This, in itself, is a worthwhile objective, given the age and heavily amended state of current legislation.

Work on consolidation has been under way for some years, under both the previous Administration and the present one. It certainly pre-dates the strategic defence review and the intention to create a tri-service Act by some years. However, that intention has given us cause to consider whether to complete the consolidation project. Consolidation and the tri-service Act would both mean significant upheaval for the services, involving in both cases not only having to adjust to new primary legislation but the complete revision of all the extensive regulations and manuals that flow from the primary legislation.

We do not believe that it would be a productive use of resources to go through this upheaval twice in the space of only a few years. Indeed, committing staff to implementing the effects of consolidation would divert them from work on the tri-service Act. We have therefore decided, as my hon. Friend the Minister of State announced in an answer yesterday, to defer the consolidation and subsume it within the more fundamental exercise of creating the tri-service Act. We are confident that that will provide the soundest foundation for service legislation in the 21st century.

As I have mentioned, the need for a tri-service Act derives from the importance of having a better disciplinary framework in those many circumstances where the services work together. The operations in Sierra Leone are demonstrating yet again how effectively our armed forces operate together, notwithstanding any improvements that we may wish to see in the legislative framework. I am sure that the Committee would not expect me to conclude without paying tribute to the fortitude, initiative, resolve and, indeed, discipline that have been so much in evidence in the personnel of all our armed forces deployed in west Africa over the past week.

We have come to expect no less. The same qualities are displayed in generous abundance wherever our personnel are serving, in single service or joint environments, however challenging the circumstances. I know that these qualities are fully valued in all parts of the House and indeed by this Committee, which I invite to approve the order.

10.36 am

Mr. Robert Key (Salisbury): It is a pleasure to serve under your chairmanship this morning, Mr. Cummings. It is a privilege to see a Secretary of State moving a statutory instrument—it is the first time in all my years that that has happened. The Under-Secretary is currently flying around Salisbury looking at the wonders of such a good Conservative, military-based, constituency.

I join the Secretary of State in wholeheartedly congratulating all our forces in west Africa: we salute them for all their good work.

It is important to put the armed forces discipline Acts into historical perspective in order to understand why it was necessary to have a separate body of military law in the first place. The aim is military effectiveness and the ability to export British law for the benefit of our service men anywhere in the world.

I am reminded that on 16 December last year Field Marshall Bramall told a delightful anecdote during the Committee stage of the Armed Forces Discipline Bill. He said:

    I have the pleasure to observe this regiment possesses an excellent spirit and that both officers and men take a pride in doing their duty. Their movement in the field is perfect; it is evident that not only officers but each individual soldier knows perfectly what he has to do; the discipline is carried on without severity; the officers are attached to the men, the men to the officers.—[Official Report, House of Lords, 16 December 1999; Vol. 608, c.365.]

Lord Bramall told us that that was written in Sicily in 1806 by the great British general, Sir John Moore, about a battalion of the 52nd Light Infantry, later the Oxfordshire and Buckinghamshire Light Infantry, now part of his regiment, the Royal Greenjackets. Good order and discipline make British forces the best in the world.

This is also an historic order, the first since the passage of the Human Rights Act and the Armed Forces Discipline Bill into law. I was intrigued that the Secretary of State argued that he was prepared to certify the order for compatibility despite the fact that it was not technically compatible because the Act has not come into force. Were it out of order for us to be debating the order today, I am sure that the Clerk would have told us so. Nevertheless, we will pass over that and assume that all is well.

I accept that as we see more and more purple activity, the significance of the tri-service Act becomes greater, but let us not underestimate the difficulty involved in introducing it. Ethos and traditions are of course different in the each of the three services, and there is a mammoth task ahead of us as we consider consolidation versus the introduction of the tri-service Act.

I noted yesterday the Secretary of State's announcement that the Government had decided to defer consolidation and subsume it into the work of the single Act. Before asking questions about that, may I say that I hope that some of the hiccups that have occurred over recent months in the Army legal service can be resolved. It is clear that there has been a shortage of personnel, but the process should not be diminished, and the system grind to a halt, because one individual in the Army legal service, unfortunately, becomes ill. That indicates to me that more resources should be committed to it. After all, we are now passing a substantial new body of legislation and I imagine that we shall need some lawyers to sort it out. I hope that adequate legal sources will be provided for the Army legal service.

The tri-service Act issue has dogged Parliament for almost a decade. Paragraph 133 of the strategic defence review—I notice that the Secretary of State used many more words than the SDR uses—states:

    We shall also be undertaking a series of initiatives including the introduction of a new pay system and a common appraisal system for officers, reviews of career structures and compensation and pension arrangements, and examination of the need for a single tri-Service Discipline Act.

That was an acknowledgement that a problem exists. However, all that it did was to introduce a process of examination.

I welcome the process that the Secretary of State has proposed. It is clear that he intends to move towards a tri-service Act. However, I ask him to bear in mind one aspect—on which he might like to comment now, as we extend the life of the existing Act.

I had always been aware that military law applied not only to service men and women but to a substantial number of civilians, but I was amazed to learn the extent of its application. I asked a parliamentary question on 14 February about the number of service personnel and their civilian dependants, and civil servants and their dependants, who are deployed worldwide and who may be tried under the service discipline Act. The Minister of State wrote to me on 11 March stating that 212,000 civilians or thereabouts are subject to the Act at any one time, virtually wherever the forces are. But they are not simply the obvious categories of dependants; they include

    Persons forming part of the family of any of Her Majesty's naval, military or air forces and residing with them or about to reside or departing after residing with them.

    Persons forming part of the family of persons

falling within certain categories

    . . . and residing with them or about to reside or departing or departing after residing with them.

    Persons forming part of the families of persons . . .

They include other categories of staff working for contractors to Her Majesty's forces at home or overseas, so swathes of the population are covered by the Acts. We must not imagine that we are simply extending the life of legislation that applies only to Her Majesty's forces.

The general problem of consolidation and the introduction of a new tri-service Act goes back a long way. Paragraph 37 of the special report of the 1996 Armed Forces Bill Select Committee, of which I was a member, stated:

    We recommend that the Government ensures that the necessary resources and Parliamentary time are made available to allow for the consolidation of Service law before the passage of the next Armed Forces Bill.

We know that that is not to be. We also know that substantial resources were applied by the parliamentary counsel way back in 1991. I quote from annexe C to the special report of the Select Committee on the Armed Forces Bill. During oral evidence on 16 January 1996 we were told:

    Work on the project was begun in July 1991 by a senior draftsman on secondment to the Commission—

that is the Law Commission—

    and continued until the time when he returned to the Parliamentary Counsel Office in the summer of 1993.

This has been going on and on, hanging over the forces for all that time. I now hope that we can have a serious commitment.

I know that this is not just a Ministry of Defence matter. The Lord Chancellor's Department and the Government prioritise the drafting of legislation and Her Majesty's forces have been at the bottom of the pecking order. If the Government seriously intend us to have a tri-service Act, I ask the Secretary of State to give a commitment that the proper priorities and resources will be applied to this important project. Having said that, I welcome the continuation orders. It is essential for the effectiveness of Her Majesty's forces that these Acts should be continued.

10.46 am


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