Select Committee on Armed Forces First Report

7  Amendments and Renewal

Amendments made to the Bill

148. In the course of our proceedings we made a considerable number of amendments to the Bill, many of which were of a technical nature, reflecting the immense complexity of legislation that impinges on the Armed Forces. We were alerted to two substantive omissions in the Bill, which were corrected by amendments we made during our Standing Committee phase.

149. SSAFA Forces Help raised the issue of child protection.[270] In its written evidence, it explains that:

    … the existing provisions at Section 111 of the 1991 Armed Forces Act relating to the powers of Commanding Officers and other responsible persons in overseas commands to authorise child protection orders overseas does not appear in the current Armed Forces Bill.[271]

Several media organisations submitted evidence relating to an apparent lacuna in the Bill that would prevent an appeal against a decision to place reporting restrictions on a court martial.[272] MoD accepted the need for both these changes and tabled amendments which the Committee agreed to. We are grateful to those who alerted the Committee to these deficiencies in the Bill, and to the Government for its willingness to propose appropriate amendments.

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.

270   Qq 301 ff Back

271   Ev 158 Back

272   Ev 187-189 Back

273   See Report from the Select Committee on the Army Act and Air Force Act, Session 1953-54, HC 223; and evidence thereto. Special Report from the Select Committee on the Armed Forces Bill, Session 2000-01, HC 154-I, Erskine May (8th Edition), pp 611-612; Erskine May (14th Edition), p 706, Defence Committee, Armed Forces Bill, paras 13-17, Defence Committee, Tri-Service Armed Forces Bill, paras 116-124 Back

274   Defence Committee, Armed Forces Bill, paras 15-16 Back

275   Q 384 Back

276   Q 468 Back

277   Ev 174 Back

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Prepared 9 May 2006