House of Commons portcullis
House of Commons
Session 2008 - 09
Publications on the internet
Public Bill Committee Debates

Draft Armed Forces (Alignment of Service Discipline Acts)(No.2) Order 2008

The Committee consisted of the following Members:

Chairman: Mr. Mike Hancock
Ancram, Mr. Michael (Devizes) (Con)
Baron, Mr. John (Billericay) (Con)
Battle, John (Leeds, West) (Lab)
Bone, Mr. Peter (Wellingborough) (Con)
Cohen, Harry (Leyton and Wanstead) (Lab)
Farrelly, Paul (Newcastle-under-Lyme) (Lab)
Jones, Mr. Kevan (Parliamentary Under-Secretary of State for Defence)
Joyce, Mr. Eric (Falkirk) (Lab)
Lepper, David (Brighton, Pavilion) (Lab/Co-op)
Murrison, Dr. Andrew (Westbury) (Con)
Rennie, Willie (Dunfermline and West Fife) (LD)
Rifkind, Sir Malcolm (Kensington and Chelsea) (Con)
Roy, Mr. Frank (Lord Commissioner of Her Majesty's Treasury)
Russell, Bob (Colchester) (LD)
Singh, Mr. Marsha (Bradford, West) (Lab)
Soulsby, Sir Peter (Leicester, South) (Lab)
Eliot Wilson, Committee Clerk
† attended the Committee

First Delegated Legislation Committee

Monday 15 December 2008

[Mr. Mike Hancock in the Chair]

Draft Armed Forces (Alignment of Service Discipline Acts)(No.2) Order 2008

4.30 pm
The Chairman: I welcome the Minister to his first Committee in his ministerial role. I am sure that the whole Committee wishes him well on this occasion and will be gentle with him—I know that he is accustomed to being dealt with gently. I hope that he treats the Committee with the same enthusiasm and respect that most of us shared with him when he served with us on the Defence Committee.
The Parliamentary Under-Secretary of State for Defence (Mr. Kevan Jones): I beg to move,
That the Committee has considered the draft Armed Forces (Alignment of Service Discipline Acts) (No.2) Order 2008.
May I say what a pleasure it is to serve under your chairmanship today, Mr. Hancock? My hon. Friend the Member for Motherwell and Wishaw has been talking about old times on the Defence Committee, and I note that the Clerk also worked with that Committee. At least one member of this Committee—the hon. Member for Colchester—served, as I did, on the Committee that considered the Armed Forces Bill in 2006.
The main purpose of the order is to amend the service Acts—the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957—to remove the constraint that the prosecuting authority for each service must be a serving officer of that service. Rather than an officer, the order will permit a person to be appointed to the prosecuting authority in future.
The order will allow Her Majesty the Queen to appoint Bruce Houlder QC—the current director of service prosecutions, or DSP, as he is commonly known—as the prosecuting authority for each of the three services. Our intention is that his appointment should take effect from 1 January 2009. I am pleased to say that that date is consistent with the original target that we set for the DSP to begin work as the single prosecutor for all three armed services. It is also the date that Mr. Houlder agreed to for his appointment as the DSP, and he is keen to take up his duties as the prosecutor on the date that was originally planned.
As the hon. Member for Colchester will be aware, the reason for the order, for which we are seeking approval today, is that the legislation that created the DSP—the Armed Forces Act 2006—will not now be implemented in its original time scale. That Act received Royal Assent in November 2006, since when work has been under way to implement it. That has involved detailed policy work, redrafting much secondary legislation and, obviously, writing the manuals and preparing the training packages for the armed forces to move to the single system of service law.
Mr. Michael Ancram (Devizes) (Con): Is the Minister saying that, after two years, that work, which seems to be technical, has not been completed? That seems a long time for something that should be a reasonably simple undertaking?
Mr. Jones: That is exactly what I am saying. The fact of the matter is that we are talking about nearly 50 years of service law for the three services being brought together, and although it was hoped that that would be implemented by January 2009, it is to be delayed until the autumn of next year.
Dr. Andrew Murrison (Westbury) (Con): Could the Minister confirm that Mr. Houlder was actually appointed in May and explain what he has been doing in the time between that date and his intended start date in January?
Mr. Jones: If the hon. Gentleman will allow me, I shall refer to that later in my speech. The target date for implementing the 2006 Act was 1 January 2009. However, during the summer, it became clear that the changes that needed to take place meant that the original target date was no longer achievable. Those changes were connected to the significant amount of secondary legislation being produced under the Act, not least the transitional provisions that will govern the movement of the three current systems of service law to a single system under the 2006 Act.
The work on the secondary legislation under the transitional orders has also proved to be far more complex and time-consuming than was anticipated when the timetable of the 2006 Act was originally proposed. However, it is vital that we get the transitional regime right. It is central to the interests of our armed forces that we ensure that the transition to the new system of service law is as smooth as possible. As a result, a written statement was made on 7 October that the implementation of the Armed Forces Act 2006 was to be postponed until October 2009.
I now turn to the DSP’s role. The DSP was due to get statutory powers under the Armed Forces Act 2006. Given the delay in implementing that Act, he would not be able to assume those powers when expected. That would have prevented him from taking full responsibility for service prosecutions until October 2009. Given that he would have been in post for more than 16 months by then, we looked to see how we might remedy that situation. That is why we have decided that the most suitable course is to amend the service disciplinary Acts, thus allowing Her Majesty the Queen to appoint Bruce Houlder, QC as the prosecuting authority for each of the services.
Mr. Bruce Houlder will assume statutory powers as the DSP when the Armed Forces Act 2006 is fully implemented in October 2009. He has already laid out plans for the new organisation that bring together the staff of the current prosecuting authority from 1 January 2009. He has put in train the extensive training programme that was promised to prosecuting officers under the Bill and that was pressed for quite forcibly by the hon. Member for Colchester.
Mr. Ancram: Will the delay have any implication in terms of cost to the public purse, and if so, how much?
Mr. Jones: The delay to the process is in trying to pull the various strings together. If there is a cost, which I have not got readily to hand, I shall certainly write to the right hon. and learned Gentleman.
Dr. Murrison: But there will be costs, because Mr. Houlder is paid £130,000 a year, and he will have supporting staff. He was originally meant to start on appointment, or very shortly thereafter, but it was delayed until January. Now, we understand that his full appointment will date from October 2009, when he assumes the powers under the AFA, so there will be a considerable cost.
Mr. Jones: I would accept that if Mr. Houlder was sat at home on gardening leave, but he is working on bringing the new prosecuting authority together. I served on the Public Bill Committee with the hon. Member for Colchester, and one of the key points was that we wanted to ensure that training was put in place before the 2006 Act came into force. This is a sea change for all three services in terms of ensuring that they understand not only the new legislation, but the way that it is implemented. I certainly do not see Mr. Houlder sitting around doing nothing—he is going to be busy drawing up those training packages and ensuring that the prosecuting authority comes into being.
The experience of the DSP was referred to in the Public Bill Committee. When the legislation was considered in 2006, there was concern in some quarters that the DSP ought to have a service background. The Defence Ministers at the time said that the main priority was to appoint the right person. I believe that we have that person in Mr. Bruce Houlder. He brings impeccable legal credentials, credibility and charisma to the post. Concern was also raised in the Public Bill Committee about whether the lack of a service background would affect that, but he was appointed by open competition and a panel that was chaired by a civil service commissioner and that included the second permanent under-secretary at the Ministry of Defence, Ian Andrews, and the Vice-Chief of the Defence Staff, General Sir Tim Granville-Chapman, along with the Director of Public Prosecutions, Sir Ken Macdonald.
Bob Russell (Colchester) (LD): As a fellow member of the Public Bill Committee, I endorse the points that the Minister has made. Concerns were expressed at the time about a non-military person coming into the role. We were assured that, if a non-military person came in, he or she would have all the necessary training, background and briefing. Should I assume that that is currently happening?
Mr. Jones: It is very concerning that the hon. Gentleman has possibly read the next paragraph of my speech, which says that that Defence Committee has told Parliament that, if the person appointed as the DSP does not have a service background, they should undergo a period of induction, aiming to give them a good understanding of how the armed forces work. Having started the DSP’s induction process shortly after he took up the post in May, I am pleased to report that it has gone well and has now concluded. The induction has given Mr. Bruce Houlder a good understanding of the armed forces and, in particular, how the service justice system operate. It will stand him in good stead as he takes on the important role that he has before him as the first ever director of service prosecutions.
In conclusion, it is regrettable that there has been a delay in implementing the 2006 Act, but I am pleased that we have been able to maintain the momentum by keeping to the original time scale for the DSP taking up his prosecuting function. I can assure the Committee that the Government and I will make sure that the timetable for the implementation of the Act—next October—is adhered to. I am clear that that must be adhered to, and if we are going to keep the momentum, it is important that the new service discipline Acts have credibility by fixing on that date.
4.42 pm
Dr. Murrison: It is a pleasure to serve under your chairmanship, Mr. Hancock, and a pleasure to be at the Minister’s first outing in one of these Committees. I cannot promise that this Committee will be as exciting as the one two weeks ago with the Minister’s colleague. Unusually for this sort of Committee, that sitting attracted some press attention, but I am sure that this one will not. I must confess my interest as a serving officer in the reserve forces, as entered in the Register of Members’ Interests.
We covered a great deal of these matters in June with the Minister’s predecessor by way of the first alignment of service discipline order and a continuation order for the provisions of the Armed Forces Act 2006 that allowed the extension of single service Acts for up to five years by 12-month increments. I assume that we will be here doing something similar this coming June. Back in June, we understood that 80 statutory instruments were needed to effect the transfer to the Armed Forces Act 2006. How many of those remain and have they had to be added to in any way? Perhaps he could be more explicit than he has been about the timetable for those statutory instruments. Given that there is no great controversy about the Armed Forces Act 2006, which received support on both sides of the House, why has there been so much delay?
Bruce Houlder, QC was appointed as DSP in May, anticipating a unified system of service law by January and following what was described as an induction period. He has had a mammoth induction period; he should certainly be very well acquainted with the workings of the armed forces. What precisely has he been up to in that time? With his supporting staff, he has enjoyed a substantial salary, which represents something of a downcost, given that he will not assume his full responsibilities until late next year, as has been mentioned already. We have learnt that the director will not be able to undertake his statutory duties under the 2006 Act until October. That lies at the heart of this debate. This is essentially an interim measure, because the matter that was begun over two years ago has not been concluded.
Mr. Houlder’s appointment is somewhat controversial. The hon. Member for Colchester has experience of that matter as a member of the Defence Committee. The three service chiefs and the Defence Committee considered that the director should have service experience and expressed some concern that the appointee might not. That is especially significant as he has been invited to be a single service prosecutor for three armed forces. The complexity of grappling with three separate services must be much greater than what was envisaged under the 2006 Act.
I hope that the Minister understands the worry of many in the armed forces at the onward march of what might be called “lawfare”, as opposed to warfare. Many are disappointed at the appointment of a person who necessarily will have a relatively sketchy contextual appreciation of the constraints of modern war fighting.
Contents Continue
House of Commons 
home page Parliament home page House of 
Lords home page search page enquiries ordering index

©Parliamentary copyright 2008
Prepared 16 December 2008