House of Commons - Explanatory Note
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Clause 323: Exclusion of enactments requiring consent of Attorney General or DPP

748.     Legislation requiring the consent of the Attorney General or the Director of Public Prosecutions to prosecute an offence does not apply to proceedings under this Bill for a service offence.

     This clause does not affect clause 61(2) which allows for the charging of persons outside certain time limits imposed by the Bill with the Attorney General's consent.

Clause 324: Local probation boards

749.     This clause substitutes for s.5A of the Criminal Justice and Court Services Act 2000 provisions that enables the Secretary of State to make arrangements for local probation boards to provide the full range of their professional services in respect of persons who appear before a service court. These services could include the preparation of pre-sentence reports and the supervision of offenders subject to an overseas community order.

SECOND GROUP OF PARTS - MISCELLANEOUS MATTERS

PART 14 - ENLISTMENT, AND TERMS OF SERVICE ETC

Enlistment and terms of service

750.     The clauses relating to enlistment and terms of service (clauses 325 to 329) are almost exclusively applicable to those holding the rank or rate of warrant officer and below. One (clause 327) applies equally to officers, but this relates to disciplinary matters where it is thought right that the same rights or restrictions should apply.

751.      Enlistment is the process by which a person joining the regular forces without being commissioned joins his Service. A person offering to enlist becomes a member of a Service when he takes an oath of allegiance (or affirms his allegiance) to the Sovereign and the validity of his enlistment is attested by a recruiting officer. In particular, the recruiting officer attests as a witness to the declaration by the recruit of the truthfulness of his answers to questions on his enlistment form.

752.     A person who enlists into one of the Services agrees to join for a specified period of regular service and perhaps also for a subsequent period in the reserves. In the Army, the person enlists on the understanding that he will serve in a particular corps, although this is subject to the recruit successfully completing training. A recruit's enlistment may be subject to a final approval process to take account of any significant changes in circumstances since his offer to enlist was originally accepted by the Service.

753.     When the enlisted person leaves regular service he will be transferred to the reserves if he has a liability for such service. Otherwise he will be discharged from his Service.

754.     Where any person is convicted of an offence of desertion, he will forfeit service for the time that he was absent. Forfeiture of service results in loss of pay for the relevant period. Such a person might be required to continue to serve beyond his original discharge or transfer date for the relevant period to complete his engagement.

755.     A person's rank or rate relates to the authority, responsibility and the professional competence of a person. The Services may need to reduce an enlisted person in rank or rate for reasons of, for example, inefficiency or misconduct.

Clause 325: Enlistment

756.     This clause gives power to the Defence Council to make regulations about the process of enlistment into the regular forces. It is envisaged that the regulations will provide in particular for the appointment and duties of recruiting officers, prohibiting the enlistment of persons under the age of 18 without the consent of prescribed persons, how a person's age is to be ascertained, the enlistment and attestation procedure including the final approval for service of those who have enlisted, the validity of enlistment, rights to discharge and the creation of offences of knowingly giving false answers during the enlistment procedure.

757.     The clause also sets limits on the maximum punishments that can be provided under regulations for those offences if tried by a service court or by a civilian court.

Clause 326: Terms and conditions of enlistment and service

758.     This clause gives power to the Defence Council to make regulations about the terms and conditions of service of a person who is about to enlist or a person who has already enlisted. They cover in particular the period of service as a regular and in the reserves, the ability of a person to seek to end his service, the ability to continue in service, and restrictions as to where some persons might be required to serve.

759.     Regulations can also provide for the compulsory transfer of members of one corps in the Army to another corps.

Clause 327: Desertion and absence without leave: forfeiture of service

760.     This clause gives power to the Defence Council to make regulations making provision with respect to confessions by members of the regular forces to the offence of desertion under clause 8, including whether a trial may be dispensed with in such cases, and the forfeiture of service and the restoration of such service in such a case (subsections (1) and (3)).

761.     It also gives power to the Defence Council to make regulations making provision about the forfeiture of service of a member of the regular forces who has been convicted by the Court Martial of an offence of desertion under clause 8 and the circumstances where such service may be restored (subsections (2) and (3)).

762.     The Defence Council may also make regulations about the issue of certificates for members of the regular forces who are absent without leave and the effect of the making of such a certificate (subsection (4)).

Clause 328: Discharge etc from the regular forces and transfer to the reserve forces

763.     This clause gives power to the Defence Council to make regulations about the discharge and the transfer to the reserve of enlisted persons (subsections (1) and (4)). The regulations may provide in particular for the authorisation of a person's discharge or transfer to the reserve and the status of a person awaiting discharge or transfer (subsection (2)).

764.     It also provides for the Defence Council to make regulations conferring a right on warrant officers to discharge following reduction in rank or rate (subsection (3)).

Clause 329: Restriction on administrative reduction in rank or rate

765.     This clause restricts the power to reduce a person's rank or rate administratively. This power is restricted by the rank of the CO, the rank of the person involved and the extent to which a person can be reduced in rank or disrated. This power to reduce rank is a separate matter from the sentencing powers of a service court or of a CO who has dealt summarily with a person.

766.      This clause provides that a CO with the appropriate higher authority permission may order a person who is a warrant officer or non-commissioned officer to be reduced either by one acting rank or, if there is no acting rank, one substantive rank. Higher authority permission is not required, however, if the person to be reduced in rank is a lance corporal or lance bombardier or if the CO holds the rank of Rear Admiral, Major General, or Air Vice Marshal or above. With regard to people who are corporals in the RAF they may be reduced to the highest rank which they have held as airman (defined in clause 364).

767.     The clause does not cover reversion from or relinquishment of acting rank when an individual is posted from or replaced in a post for which he has been granted acting rank.

Redress of individual grievances

768.      The statutory right of complaint is considered a fundamental right of a service person. It dates back to at least the 19th century and largely reflects the fact that the terms of service of service personnel are not governed by domestic employment law. As a result a service person does not have a contract of employment and his rights of legal remedy, in respect of matters arising from his service, are limited. The internal statutory redress system has therefore always been of importance if a service person is to be allowed to complain about any matter where he thinks himself wronged in relation to his service. Currently a redress of complaint proceeds through a service person's commanding officer, through various layers of the command chain, to the Defence Council. In those circumstances the Service Board of the complainant's Service act for the Defence Council. At any stage of the redress process, if satisfied with the decision of the decision-making authority then dealing with the complaint, the complainant can withdraw his complaint. If dissatisfied, the complaint will proceed on to the Service Board where two board members decide the complaint.

769.      These procedures have been found, in practice, to be slow. Service Boards have been overloaded with cases which has led to delay in cases being resolved. The clauses in the Bill are designed to speed up the process. In most cases a complaint will still be considered by a service person's commanding officer and then go to one further level within the command chain. If a complaint is not capable of resolution by the command chain, most cases will proceed immediately to a service complaints panel. Service complaint panels are designed to take work away from the Service Boards and panels will be given delegated powers to act on behalf of the Defence Council. The panels will usually comprise serving officers of the rank of commodore, brigadier or above and civil servants. Membership of service complaint panels will come from outside the command chain of the complainant and could be drawn from another Service than that of the complainant or from the civil service. The Secretary of State may make regulations requiring that in the case of a service complaint of a particular description an independent member to sit on a service complaint panel. Examples of where an independent member appointed by the Secretary of State will sit on complaints is likely to be appropriate are complaints involving bullying or harassment.

770.      Where the Defence Council has not delegated a case (either by delegating the particular case or a relevant category of cases to a complaints panel) they will still be able to decide the matter (as at present acting through a Service Board). In such cases, a Service Board could require a service complaint panel to assist the Board in carrying out its functions, e.g. a service complaint panel could be asked to investigate a particular matter and report to the Board with their recommendations.

771.     In those cases where a Service Board deals with a complaint made by an officer, the officer if dissatisfied with the decision of the Service Board, may request reference of his individual grievance to Her Majesty.

Clause 330: Redress of individual grievances: service complaints

772.     This clause allows a person who is, or who has previously been, subject to service law to make a complaint if he thinks himself wronged in any matter relating to his service.

773.      Subsection (2) enables the Secretary of State to make regulations about the kind of matter that cannot be the subject of a complaint. It is envisaged that regulations will be made to exclude complaints about Service disciplinary proceedings (where other appeal procedures exist) and about matters involving pensions and reserve forces (where alternative dispute resolution and appeals procedures also exist).

774.      Subsection (3) requires the procedure for making and dealing with complaints to be laid down in Defence Council regulations. In particular, regulations must make provision for: the kind of officer to whom a complaint is to be submitted; the complaint to be considered by that officer or referred to a superior officer or to the Defence Council; the complainant whose complaint has been considered by an officer to have his complaint referred to a superior officer or the Defence Council; the superior officer to deal with the complaint or refer it to the Defence Council; the complainant whose complaint has been considered by a superior officer to have his complaint referred to the Defence Council.

775.      Defence Council regulations may also provide for the manner in which a complaint is to be handled and timescales for submission of a complaint, (subsections (5) and (6)).

776.      Any person considering a complaint must decide if the complaint is well-founded and if it is he should grant the appropriate redress that is within his authority (subsections (7) and (8)).

Clause 331: Service complaints: role of Defence Council and service complaint panels

777.     This clause permits the Defence Council to delegate all or some of its responsibilities under clause 330 to a panel known as a service complaint panel. Members of the service complaint panel are appointed by the Defence Council (Other than independent members appointed by the Secretary of State under regulations under clause 332(6)(a)).

778.      Subsection (4) permits the Defence Council to appoint a civil servant or officer to decide on its behalf what functions should be delegated to a panel and to appoint that panel.

779.      Subsection (7) permits the Defence Council to appoint a person to investigate a complaint.

Clause 332: Composition and procedure of service complaint panels

780.      This clause sets out the eligibility criteria and the composition of a service complaint panel and permits the Secretary of State to make further provision in regulations about its composition and procedure.

Clause 333: Reference of individual grievance to Her Majesty

781.      Officers have traditionally had the right to have their complaint referred to the Sovereign. This clause lays down certain conditions that must be satisfied for an officer to have his complaint referred to Her Majesty. One condition is that the complaint must have previously been considered by the Defence Council, i.e. by a Service Board, and not by a service complaints panel. If the Defence Council determine under clause 331 that most kinds of service complaint will be heard by a service complaint panel, the matters about which an officer will be entitled to complain to Her Majesty will be limited.

Restriction on aliens

Clause 334: Restriction on aliens in regular forces

782.     This clause prevents aliens from being members of the regular forces or of HM Forces raised under the law of a British overseas territory. An alien is a person who is neither a citizen of the United Kingdom, the Commonwealth or the Republic of Ireland nor a British protected person. .

783.     The clause allows the Defence Council to make regulations excluding certain aliens from this prohibition. This would allow Gurkhas (who are aliens) to be members of these forces.

784.     Subsection (4) disapplies section 3 of the Act of Settlement 1700 which would otherwise prevent certain non-UK nationals from holding any "office or place of trust" in HM Forces.

PART 15 - FORFEITURES AND DEDUCTIONS

Clause 335: Forfeiture and deductions: general provisions

785.     This clause provides that there shall be no forfeiture of the pay of a relevant person unless authorised by or under the Act or under any other Act (subsection (1)).

786.     Subsection (2) provides there shall be no deduction from the pay of a person subject to service law unless authorised by and under the Act or any other Act or by Royal Warrant, but a Royal Warrant or relevant instrument may not authorise deduction from the pay of a person subject to service law by reason of Clause 357(2)(d) (a member of the reserve forces undertaking any training or duty), or the making of a penal deduction.

787.     A Royal Warrant, relevant instrument or a regulation, order or instruction by the Defence Council may provide for the imposition of any forfeiture and the making of any deductions authorised under an Act and for prescribed matters concerning such forfeitures and deductions (subsection (3)).

788.     A person subject to service law shall (subject to any forfeiture) remain in receipt of a minimum rate of pay (as may be prescribed by regulations of the Defence Council) notwithstanding that deductions are made from his pay (subsection (4)).

789.     Where there is forfeiture of pay for a period and a person receives a minimum rate of pay for that period, the amount received may be recovered by deduction from pay (subsection (5)).

790.     Any amount authorised to be deducted from pay may be deducted from any balance due to the relevant person (whether or not representing pay), and this applies wherever deductions are referred to in clause 336 (subsection (6)).

791.     Subsection (7) defines 'penal deduction' and relevant instrument'.

Clause 336: Permitted forfeitures and deductions

792.     Subsection (1) of this clause provides a power for the Secretary of State to make provision to enable the Defence Council or authorised officers to make orders:

  • authorising forfeiture of pay of a relevant person for a period of prescribed absence from duty;

  • authorising deductions from the pay of a relevant person -

    -     to satisfy any amount paid by or on behalf of a service authority to meet a sum ordered to be paid by him by a civilian court anywhere;

    -     to compensate for loss of, or damage to, public or service property which a prescribed person is satisfied the relevant person caused by a wrongful act or negligence;

    -     to satisfy a financial penalty which requires him to make payment;

    -     to satisfy a prescribed payment which he is required to make under a prescribed maintenance order, or an obligation on his part to make payments in accordance with a prescribed maintenance assessment or calculation;

    -     to be appropriated towards the maintenance of a spouse (or former spouse), civil partner (or former civil partner) child or prescribed person;

    -     to satisfy an amount required to be paid by him as a result of any judgment or order enforceable by a court in the United Kingdom.

793.     Subsection (2) provides a list of provisions that may in particular be made by regulations under the clause.

794.     Subsection (3) provides for the Defence Council or authorised persons to be able to remit certain forfeitures or deductions.

795.     Subsection (4) defines 'financial penalty', 'prescribed' 'public property', 'relevant person' and 'service property'.

796.     Subsection (5) provides that the reference in this clause to a judgement or order enforceable by a court in the United Kingdom includes a judgement enforceable by the Enforcement of Judgements Office.

PART 16 - INQUIRIES

797.     Service inquiries will replace the different statutory and non-statutory provisions which the armed forces have for holding formal inquiries known as Boards of Inquiry, Unit and Regimental inquires and ships' inquiries. A service inquiry will be an internal inquiry for the purpose of establishing the facts of a matter and making recommendations to prevent a recurrence. An inquiry will be conducted by a panel, the membership of which will depend, amongst other things, on the matter into which it is inquiring.

Clause 337: Service Inquiries

798.     This clause permits the Secretary of State to make regulations for causing inquiries to be held in prescribed circumstances.

799.     Subsection (2) sets out some of the main things about which the regulations in particular may make provision. These include the matters about which inquiries must or may be held and the membership and functions of the service inquiry panel.

800.     Subsection (3) sets out further provision which may be made by the regulations. The regulations may, in particular, include provision enabling designated persons to decide in prescribed circumstances that a matter that would other wise have to be referred to an inquiry panel need not be referred. They may also make provision about the taking of oaths and affirmations and rights of attendance at a service inquiry. Evidence given to an inquiry is not to be admissible at summary hearings under the Bill or in proceedings before prescribed courts, except in the case of proceedings for a prescribed offence.

801.     Subsection (4) enables the regulations to include (subject to appropriate modifications) provision equivalent to section 35 of the Inquiries Act 2005. This provides sanctions for non-compliance with requirements imposed by an inquiry panel, (for example failure, without a reasonable excuse, to comply with a formal notice requiring attendance at the inquiry or the production of evidence) and sanctions for actions that are likely to hinder the inquiry (for example doing things intended to distort or alter evidence given to an inquiry panel).

PART 17 - MISCELLANEOUS

Offences relating to service matters punishable by civilian courts

Introduction

802.     This group of clauses creates a number of civilian criminal offences that can be committed by any person (whether or not a person who subject to service law or a civilian subject to service discipline). The offences include aiding, abetting, counselling or procuring desertion, absence without leave or malingering, and the offence of obstructing a person subject to service law in the course of his duty.

Clause 338: Aiding or abetting etc desertion or absence without leave

803.     This clause makes it an offence to aid, abet counsel or procure the commission by another person (i.e. a person subject to service law) of an offence under clause 8 (desertion) or clause 9 ((absence without leave) (subsection (1)).

804.     Subsection (2) makes it an offence intentionally to do something (or omit to do something) that causes a person, whom the offender knows to be subject to service law, to be absent without leave.

805.     Subsection (3) makes it an offence intentionally to impede the apprehension or prosecution of a person subject to service law who has committed an offence contrary

to clause 8 (desertion) or clause 9 (absence without leave) where the offender knows or believes the person subject to service law to be guilty of the relevant offence.

806.     Subsection (4) provides that an offence contrary to this section may be committed in a "relevant territory" or, if outside a "relevant territory" by a United Kingdom national or a person who is resident in a "relevant territory". Subsection (5) defines "relevant territory" as being the United Kingdom, the Isle of Man or a British overseas territory. The term "United Kingdom national" is defined in clause 341(3).A person guilty of an offence under this clause may be sentenced by a court of summary jurisdiction to imprisonment for a term not exceeding the relevant maximum or to a fine not exceeding the statutory maximum, or to both. The "relevant maximum" is 12 months in relation to England and Wales and, otherwise, 6 months subsections (7)(a) and (8). As to the meaning of "the statutory maximum" see clause 367(6) and (7).

807.      If the person is convicted on indictment he may be sentenced to imprisonment for a term not exceeding two years or to a fine, or both subsection ((7)(b)).

Clause 339: Aiding and abetting etc malingering

808.     This clause makes it an offence to aid, abet counsel or procure the commission by another person (i.e. a person subject to service law) of an offence under clause 16 (malingering) (subsection (1)).

809.     Subsection (2) makes it an offence to do something that causes a person, whom the offender knows to be subject to service law, an injury, or to do something that aggravates or prolongs an injury of his with the intention that the person subject to service law will avoid service.

810.     Subsection (3) makes it an offence to do something that causes a person, who the offender knows to be subject to service law, to believe that he has an injury, or to do something that causes another person to believe that the person subject to service law has an injury, with the intention that the person subject to service law will avoid service.

811.     Subsection (4) provides that an offence contrary to this section may be committed anywhere in a "relevant territory" or if outside a "relevant territory" by a United Kingdom national or a person who is resident in a "relevant territory". Subsection (5) defines "relevant territory" as being the United Kingdom, the Isle of Man or a British overseas territory. The term "United Kingdom national" is defined in clause 341(3).

812.     A person guilty of an offence under this clause may be sentenced by a court of summary jurisdiction to imprisonment for a term not exceeding the relevant maximum or to a fine not exceeding the statutory maximum, or to both. The "relevant maximum" is 12 months in relation to England and Wales and, otherwise, 6 months subsections (7)(a) and (8). As to the meaning of "the statutory maximum" see clause 367(6) and (7).

813.      If the person is convicted on indictment he may be sentenced to imprisonment for a term not exceeding two years or to a fine, or both subsection ((7)(b)).

 
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Prepared: 6 December 2005