Renewing and amending the legislation
150. Service Law is currently renewed every five
years by primary legislation and in each intervening year by Order
in Council. Clause 371 of the Bill as introduced by the Government
contained provision for quinquennial renewal but omitted the requirement
for annual renewal by delegated legislation. The constitutional
basis for this practice has been noted and supported by successive
Armed Forces Bill Select Committees and Defence Committees.[273]
The Defence Committee report on the Bill concluded:
The rationale for removing the requirement for
annual renewal is not clear. […] We do not believe Parliament
should agree to cede this aspect of its control over the nation's
Armed Forces to the Executive, particularly at a time when military
law and discipline are of considerable political concern.
[274]
151. The Chief of the Defence Staff, General Sir
Michael Walker, told us that he supported quinquennial review,
but said that:
Insofar as the annual renewal goes, it seems
to me that there is nothing particular to be gained by an annual
review. After all, the Armed Services are constantly on the lips
in both Houses and five years seems to be a suitable sort of period
for that to happen.[275]
Mr Miller was more circumspect when we discussed
annual renewal with him. He said that annual renewal had been
included in the original Service Discipline Acts, but he explained:
… there have been developments since then
and the level of parliamentary engagement with the Armed Forces
is such that there is now a regular debate on personnel matters,
for example. The Select Committee on Defence has become a much
more established part of the system from when this was last considered
and there is a whole range of other ways in which these issues
can be aired in a parliamentary context.[276]
152. We received a memorandum from the Leader of
the House arguing against annual renewal on the basis that the
historical protections in the Bill of Rights, that require annual
legislative approval for a standing Army, were 'outmoded', and
that Parliament had other opportunities to consider issues relating
to the Services. The memorandum acknowledges the special function
of the Armed Forces, but asks:
… is their position in the life of the modern
state and of modern society special in a way which means that
they need a different legislative process? Is there a basis for
service discipline legislation to be regarded any differently
from other calls on the legislative programme?[277]
The Leader made it clear, however, that the Government
was prepared to listen to our views on the issue of annual renewal.
The Government proposed an amendment reinstating the annual
renewal provisions, and we have made this change to the Bill.
153. We are particularly concerned that, as the
legislation will make considerable changes to the military justice
system, Parliament should have an opportunity to watch closely
how those changes work in practice. We welcome the Government's
willingness to listen to the arguments adduced in the Committee
and its readiness to provide the necessary amendment to reinstate
annual renewal of Service discipline legislation.
154. One of the difficulties that MoD faces is ensuring
that Service Discipline legislation keeps pace with developments.
Annual renewal by statutory instrument does not provide an opportunity
to make amendments. If changes are required before the next quinquennial
Armed Forces Bill, they could be included in other appropriate
Bills, such as Home Office criminal justice legislation, which
appears frequently in the legislative timetable. We urge the
Government's business managers to ensure that MoD has an opportunity
in the legislative timetable to bring forward any changes required
to military discipline legislation in a timely manner.
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