Memorandum from the Rt Hon Geoff Hoon
MP
FREQUENCY OF
RENEWAL
In your consideration of this Armed Forces Bill
you will have an opportunity to examine closely what kind of renewal
of the discipline Acts is necessary in the modern era. Tied up
with this is the related issue of what kind of authorisation is
needed for the armed forces themselves.
I would encourage the Committee to be forward-looking.
The origins of the present system lie
mainly in the seventeenth century. Concerns about the way the
armed forces interacted with the population—service disciplinary
issues and the impact of billeting—merged with even greater
concerns from the civil war period about the possible abuse by
the executive of its control over the armed forces. This led to
the insertion in the Bill of Rights of the famous Article VI,
laying down that "the raising or keeping of a standing army
within the kingdom in time of peace unless it be with the consent
of Parliament is against the law".
Out of this developed the current practice of
annual renewal of the services disciplinary legislation. Initially—from
1670 to 1878—there were annual Mutiny Acts.[16]
These were succeeded by annual Army or Army Discipline or Army
and Air Force or Armed Forces Acts until 1954. These Acts always
included a preamble specifying the numbers of forces authorised.[17]
Since 1955, renewal of the Army and Air Force Acts has been through
the mechanism of quinquennial primary legislation and annual Orders
in Council. But the 1957 Naval Discipline Act was only brought
into the system of quinquennial renewal in 1971.
Over 300 years have passed since the Glorious
Revolution and the Bill of Rights. Is it not now time to make
a major change in the way we approach this legislation? The current
Armed Forces Bill provides, in clause 371(3), for the five year
"sunset" provision to be retained, but for the annual
Order in Council procedure to be dropped. The Committee could
therefore reasonably consider whether the sunset provision could
be dropped as well, leaving service discipline to be treated in
the same way as any other legislation.
It is not just a matter of the simple passage
of time since the Bill of Rights. The realities of nationhood,
political governance, warfare and the role of the armed services
are completely different. Certainly the armed forces have a special
function. But 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? Where updating of the discipline
legislation is necessary, then time will in principle be found,
on a timetable compatible with other legislative priorities. This
is the basis on which legislation is dealt with in other fields
of public life—whether other legal areas such as the criminal
law and the courts, or different areas entirely such as the National
Health Service or education. Sometimes there will be a need for
primary legislation earlier than the next five year slot (as was
the case with the Armed Forces Discipline Act 2000), indicating
that the quinquennial system is anyway not a complete solution
to the services' legislative needs.
It is sometimes argued that the present system
is valuable because it allows and encourages Parliament to look
at the armed services in a different way and to provide special
opportunities for accountability. It has been suggested, for example,
that the automaticity of the process provides a safeguard for
those who cannot openly demand the regular scrutiny which it provides,
namely service personnel themselves. But again are the armed forces,
however specialised and vital their role, in a different position
in this respect from other areas of public service? The opposite
point could be argued: that a different procedural treatment for
the armed forces exposes them to a different perception by the
legislature which would not always be to their advantage. In practice,
the annual armed forces debates already provide a regular opportunity
for any current concerns to be raised. There are also of course
other opportunities such as the work of the Defence Select Committee
and debates in Westminster Hall. And—as already noted—the
navy was managed successfully in the last century until 1971 without
any system of quinquennial renewal.
It is also argued that the regular renewal system
is necessary in order to fulfil the requirements of the Bill of
Rights 1689. As suggested above, there may anyway be a question
as to whether the protection against possible abuse by the Executive
of a standing army—as required by the Bill of Rights—is
now outmoded. Three and a half centuries have passed since the
end of the civil war and it is somewhat absurd to suggest that
control of the armed forces by the Crown poses any danger to Parliament.
Indeed if—by nominally giving that control instead to Parliament—it
implies that the armed forces have a special status outside the
control of Government, this may be positively harmful.
But even if the Bill of Rights provision is
valuable, is it anyway the case that it requires to be satisfied
through the discipline acts? It has been the practice to cite
the discipline renewal system as part of the means by which Parliament
is deemed to give the required consent to maintenance of a standing
army under Article VI. But the Armed Forces Acts are about the
administration of the armed forces rather than their existence
or size. Of course the relevant lawyers would need to examine
the point in more detail, but any direct link with the Bill of
Rights obligation seems to have gone when the preambles to the
annual primary legislation were abandoned in the 1950s. It is
surely other parliamentary procedures, in particular of course
the annual Votes "A" (which specifically relate to the
maintenance of specified numbers of armed forces) and the defence
estimates authorising the annual expenditure of the armed forces,
which fulfil the requirements of the Bill of Rights. This seems
to have been the view taken at the time of the 1950s legislation,
with the official memorandum to the select committee looking at
the planned legislation stating "the normal financial procedure
of Parliament . . . secures the assent of Parliament to the maintenance
of a standing army. This is so both because without the money
being voted by the Commons and the Lords assenting to its appropriation
the Army could not be maintained, and also because in dealing
with the financial side Parliament clearly assents to there being
an army."[18]
So I do not think that the Bill of Rights obligation, even assuming
it still has a value, needs to be seen as an overriding objection
to a different approach.
I hope the Committee will look closely at the
possible benefits of this further step towards bringing governance
of the armed forces into line with modern conditions.
January 2006
"Whereas the raising or keeping a standing army
within the United Kingdom of Great Britain and Ireland in time
of peace, unless it be with the consent of Parliament, is against
the law; and whereas it is adjudged necessary by Her Majesty and
this present Parliament that a body of forcs should be continued
for the safety of the United Kingdom, and defence of the possession
of Her Majesty's Crown, and that the whole number of such forces
should consist of one hundred and thirty-five thousand four hundred
and fifty-two men, including those to be employed at the depots
in the United Kingdom of Great Britain and Ireland for the training
of recruits for service at home and abroad, but exclusive of the
numbers actually serving within Her Majesty's Indian possessions
. . ."
16 There were also Marine Mutiny Acts although the
Bill of Rights provision only covers land (and by extension air
forces). Back
17
The relevant part of the preamble to the 1878 Act for example
read Back
18
Select Committee on the Army Act and the Air Force Act 1953-54,
HC 223, Evidence p 199. Back
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