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Session 2008 - 09
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Public Bill Committee Debates

The Committee consisted of the following Members:

Chairman: Christopher Fraser
Ancram, Mr. Michael (Devizes) (Con)
Baron, Mr. John (Billericay) (Con)
Cairns, David (Inverclyde) (Lab)
Cruddas, Jon (Dagenham) (Lab)
Jenkin, Mr. Bernard (North Essex) (Con)
Jones, Mr. Kevan (Parliamentary Under-Secretary of State for Defence)
Joyce, Mr. Eric (Falkirk) (Lab)
Keeble, Ms Sally (Northampton, North) (Lab)
Milburn, Mr. Alan (Darlington) (Lab)
Munn, Meg (Sheffield, Heeley) (Lab/Co-op)
Murrison, Dr. Andrew (Westbury) (Con)
Redwood, Mr. John (Wokingham) (Con)
Rennie, Willie (Dunfermline and West Fife) (LD)
Roy, Mr. Frank (Lord Commissioner of Her Majesty's Treasury)
Russell, Bob (Colchester) (LD)
Southworth, Helen (Warrington, South) (Lab)
Richard Ward, Committee Clerk
† attended the Committee

Sixth Delegated Legislation Committee

Tuesday 23 June 2009

[Christopher Fraser in the Chair]

Draft Armed Forces (Enlistment) Regulations 2009
4.30 pm
The Parliamentary Under-Secretary of State for Defence (Mr. Kevan Jones): I beg to move,
That the Committee has considered the draft Armed Forces (Enlistment) Regulations 2009.
The Chairman: With this it will be convenient to consider the draft Armed Forces (Part 5 of the Armed Forces Act 2006) Regulations 2009 and the draft Armed Forces, Army, Air Force and Naval Discipline Acts (Continuation) Order 2009.
Mr. Jones: It is a pleasure to serve under your chairmanship, Mr. Fraser. The Armed Forces Act 2006 seems to be following me around. Along with the hon. Member for Colchester, I served on the Select Committee on the Armed Forces Bill. We are now into our fourth or fifth year of considering these matters and we see light at the end of the tunnel, in that after today there will be five remaining statutory instruments, which will, I hope, conclude my involvement with this legislation.
The current service discipline Acts date from the 1950s. Over the years, they have been renewed and amended at regular intervals. Work to consider a possible single system of service law began in 2001 and culminated in the Bill that was introduced at the end of 2005. That was the largest and arguably the most significant piece of legislation that the Ministry of Defence has ever put before Parliament. The resulting Armed Forces Act 2006 harmonised and modernised the legislation, while at the same time keeping commanding officers at the heart of service discipline.
Full implementation of the 2006 Act is due to take place on 31 October, but one part of the work needed to achieve full implementation concerns the significant number of statutory instruments that need to be brought into force. Close to 50 have been laid in the past few months, keeping me busy at weekends signing them all. Of those, eight are subject to the affirmative procedure and must be debated by both Houses.
This afternoon we are considering the first group of three, and I shall say a few words about each of them, starting with the continuation order. The 2006 Act continues the constitutional arrangements under which armed forces legislation must be renewed by Parliament each year. The continuation order provides for the renewal for a further year of the Act itself and the old armed forces legislation until the repeal when the 2006 Act comes into force on 31 October. The 2006 Act and the three service discipline Acts will expire on 8 November unless they are renewed before then by such an order. The continuation order therefore provides for all four Acts to continue in force for a further year. Notwithstanding that, I can confirm that the service discipline Acts will be repealed when the 2006 Act comes into force on 31 October.
The draft Armed Forces (Part 5 of the Armed Forces Act 2006) Regulations 2009 provide for matters connected with the investigation of service offences and charging. Part 5 of the Act introduces a brand-new set of provisions for the armed forces in respect of how the roles of the commanding officer, the service police and the new Director of Service Prosecutions—the DSP, as he is known—will interact in the future. The main changes are to ensure that allegations of more serious offences are investigated by the service police, and that such allegations must be sent by the service police direct to the DSP for a decision on whether a charge should be brought. Similarly, a commanding officer may not deal with certain serious allegations at a summary hearing. Rather, he must refer the case to the DSP for consideration. The Act itself specifies certain offences—such as murder—that are subject to such safeguards. Moreover, the regulations specify circumstances that become subject to the safeguards. Such safeguards are important because they will help to ensure that the service police and the DSP investigate and consider all appropriate cases.
The draft Armed Forces (Enlistment) Regulations 2009 are to be made under section 328 of the 2006 Act. They describe the process leading to the enlistment of a civilian in the armed forces and largely replicate the current procedures, but with updates to the language and harmonisation of previous minor differences between the three services. The regulations are now on a tri-service basis. For example, a person “entering” service in the Royal Navy will now “enlist” just like he would in the other two services. I know that such a change has caused controversy among some of the older sea dogs in my office and possibly among some of those present today.
Enlistment provisions are administrative matters for which the Defence Council is best placed to be responsible. Historically, such provisions have been promulgated in Defence Council regulations that have not been subject to parliamentary scrutiny. However, because service personnel do not have contracts of employment, it was considered appropriate that the regulations should be subject to parliamentary scrutiny. The Defence Council regulations under the 2006 Act are, therefore, being made by statutory instrument.
The regulations are subject to affirmative resolution because they include provisions about the enlistment of young people under the age of 18—with the consent of people specified in the regulations. The regulations also make it clear that no one under the age of 16 may validly be enlisted in the armed forces. However, the regulations recognise that a recruiting officer acting in good faith could enlist someone who is under the age of 18. The provision is to protect that officer in such circumstances. Such a situation is most likely to occur if a young person seeks to enlist in the regular forces from outside the United Kingdom. Their documentation might not be as clear as that in the UK.
Mr. John Redwood (Wokingham) (Con): Will the Minister explain why it was stated in the supporting papers that there is no impact from this and, therefore, no impact assessment?
Mr. Jones: The right hon. Gentleman raised the issue of financial impact during the last statutory instrument debate. I wrote to hon. Members about that and reassured them that there was no financial impact from the regulations. The provision is really to safeguard both the recruiting officer and the situation in which mistakes can happen. For example, trying to ascertain the age of somebody who has come from the Commonwealth is sometimes difficult. The regulations protect the officer in question.
The regulations include safeguards to provide added protection for young people aged between 16 and 18. Most importantly, a young person cannot be enlisted without the consent of his or her parents or a person with parental responsibility. If the young person lives with both of his or her parents, he or she must obtain the consent of them both before enlisting in the armed forces. The regulation requires the consent of both parents where the recruit lives with them, to avoid the potentially difficult situation of one parent agreeing to enlistment and the other not. On the other hand, if the young person lives with only one parent, that parent must give their consent to the enlistment. If the young person does not live with either parent, he or she need obtain the consent of only one parent. The issue was raised of conflicts between individuals who disagree about whether their son or daughter should join the armed forces, and I think this clarifies that well.
Once a young person is enlisted into the regular armed forces, the services themselves have additional safeguards for the protection of such young people. Hence, until a young person reaches the age of 18, he or she cannot be deployed in an operational theatre.
Bob Russell (Colchester) (LD): I do not see any problem of under-age recruitment within the United Kingdom, but given that there are upwards of 50 nationalities now serving in Her Majesty’s armed forces, predominantly in the Army, what safeguards are there in these other countries against recruiting young people below the age that the Minister is talking about?
Mr. Jones: The measures will give clarity between the three services, which has not been there before. They will give clear guidance for recruitment officers across the three services—remember that recruitment in Commonwealth countries is done by specialist teams in theatre. The measures also recognise that mistakes may well be made. It does happen, as I know from a visit I made earlier this year to Nepal, that people present false birth certificates, not to appear younger, but to appear older—there is an age limit for Gurkha recruitment, for example—but these matters have been left to recruitment teams at a local level. The measures clarify the rules across all three services and make their interpretation easier.
I now turn to issues around the European convention on human rights. I should like to make a further observation about the orders that we are considering today. The Government have given an undertaking that Ministers speaking to instruments subject to an affirmative procedure will tell the House whether they are satisfied that the legislation is compatible with the rights provided in the ECHR. The continuation order raises convention issues only in that it maintains in force service legislation. We consider that this legislation is compatible with the convention rights. We also believe that the other two orders we are considering today are compatible with these rights.
4.43 pm
Dr. Andrew Murrison (Westbury) (Con): May I say what a pleasure it is, Mr. Fraser, to serve under your chairmanship for the first time? I must declare my interest, which the Minister briefly alluded to in his comments about sea-dogs, for which, many thanks, Minister.
The Minister has spoken for slightly under a quarter of an hour, which is a considerable improvement on Friday, when he spoke for an hour and 36 minutes. For that, we must be very grateful indeed.
We are happy with the Act and its general thrust, which is to harmonise procedures and practices between the three services. It is clearly appropriate that we do that, given the increased level of jointery that we have between the Army, Navy and Air Force. The Bill also gives safeguards for the men and women of our armed forces and will give us greater clarity, on service discipline, in particular, and its relationship with best practice in civilian life. However, we do have some concerns. The Minister will have heard many of them before. I shall reiterate some of them, and I hope that he will be able to respond to some of our ongoing concerns about the statutory instruments we are debating today.
Our chief concerns relate to issues such as the place of commanding officers within the arena of service discipline. The Minister will know, and my hon. Friend the Member for Aldershot (Mr. Howarth) has asked me to reiterate the point, that we are concerned about the possible dilution of the centrality of the role of commanding officers in service discipline. We are also concerned about the onset of what may be called lawfare—as opposed to warfare—particularly, and I know the Minister shares our concerns, in relation to the High Court judgment of 18 May that dealt with the tragic case of Private Jason Smith. It would be useful to hear the Minister’s thoughts on how that judgment might impact on the Armed Forces Act 2006 and the statutory instruments that we are debating today.
It is worth reiterating that we feel strongly that the men and women of our armed forces must be provided with the best possible kit; there can be absolutely no excuse for giving them substandard kit or abusing the position of trust that exists within in the service environment. It is important that we do nothing that would constrain our operational effectiveness. I know from the comments attributed to the Minister for the Armed Forces that that is understood at some level in the Ministry of Defence. It would be useful to have an assurance that there is nothing in these statutory instruments that will cause problems in relation to the High Court judgment made on 18 May.
During the passage of the 2006 Act, we raised concerns about the motivation for the Government’s decision to bring military law into line with the requirements of the European convention on human rights. Other signatories to the European convention have ensured that their armed forces are not subject to the requirements of the convention, yet the UK did not take up that opportunity when it brought the convention into UK law in 1999. I want to be sure that the Minister understands the implications of bringing the European convention into UK law in 1999 and its conflict with the Act. I seek assurance that that conflict will be addressed.
We have three orders before us today. The first is the continuation order, which is the simplest of the three as we look at it every year under existing legislation and will continue to do so under the 2006 Act. It is worth pointing out that this was something we insisted on during Committee proceedings on the Armed Forces Bill, and I am pleased that we will now be given the opportunity to consider this on a yearly basis. It is obviously right that we do so, as our troops surrender many of the freedoms that the rest of us take for granted and submit to the discipline and rigour of service life. It is right that we do not take that for granted. By considering this on a yearly basis, we give tangible recognition of the fact that we do not take them for granted in respect of the liberties that they necessarily surrender by serving in the armed forces.
The Minister will expect me to raise the non-appearance of the manual of service law, which we have been promised for some time. It is the Minister’s intention that this Act should come into force on 31 October, yet we do not have the underpinning manual that will inform those who are required to operate within this changed legal environment. That seems to be a serious shortcoming. Parts of this Act will come into force immediately and we are considering measures that will have immediate effect. It is difficult to see how that can possibly happen without the manual being available to practitioners. We can take it for granted that the promised training in the various elements of this Act simply has not taken place. How can it have taken place if some of this will have immediate effect? That surely is a serious shortcoming, and one that was admitted to by Baroness Taylor, on 18 June in another place. It would be useful to have an update from the Minister on where we are with the manual and the training that is necessary to underpin the changes that we are discussing today.
The part 5 regulations are the most complex of the three measures that we are considering today. The effect is, however you cut it, to remove the centrality of commanding officers from the investigation and management of offences. I am worried about the time left for sufficient promulgation and training. It is worthwhile saying at this point that we are concerned about the logic that underpins the introduction and immediate enactment of these regulations, while waiting for the rest of the Act to come into force on 31 October 2009. Reading through the proceedings in the other place, it was not entirely clear to me that the Minister there dealt adequately with the question why these particular regulations, the second on the Minister’s list, should come into force immediately—particularly since the Act itself will not be coming in until the autumn, the manual is not ready and, presumably, the training has not been done.
The removal of much of the commanding officer’s discretion under the regulations, and the handing of it to the service police and the DSP, will not please commanders in the field at all levels who, understandably, fear the recent High Court judgement, and believe it might expose them to legal challenge—potentially many years after a particular event—on life-and-death decisions they may make, sometimes on the spur of the moment. I wonder if the Minister has fully grasped the concerns of those in command positions, and whether he realises that legal challenges may become almost routine in the aftermath of some operations. What preparation has been made for that?
The enlistment regulations are in many respects, as the Minister hinted, the most interesting of the three measures we have before us. It is a somewhat historic moment for the Royal Navy, because—although it may be a pedantic point—until now, members of the Royal Navy have not enlisted: they have simply entered service. They will now be required to enlist in the same way as members of the Army and the Royal Air Force. They will know about it particularly when it comes to swearing an oath of allegiance. Throughout my naval career, I never swore an oath of allegiance; I think the allegiance of members of the senior service was pretty well taken as read. This is something of an innovation, but one that is welcome, not just in the spirit of harmonisation between the three armed forces, but because these occasions are important for individuals.
A few days ago, I had the pleasure to meet an American gentleman of pensionable age who decided to become a British citizen. He had been charmed by his citizenship occasion that was held at the local town hall. He thoroughly enjoyed it and was very appreciative of it. I say this because not everything this Government do is dreadful, and certainly that innovation is something of which they can be rightly proud. In a similar vein, I commend the Government for now allowing members of the senior service to pledge their allegiance in the way the Army and the RAF are accustomed to doing. That has to be a good thing.
I am interested, as I suspect the Liberal Democrats are, in the enlistment of people who are under 18. It is certainly a politically controversial point in many quarters—in particular, among those who are between the ages of 16 and 18. We have heard from the Minister that we must not enlist people under 16, and that recruiting officers must do everything they can to ensure that that does not happen. In the United Kingdom, of course, it would be very difficult to do such a thing, because this country is very much reliant predominantly on soldiers from abroad, and, as the Minister has said, sometimes it can be quite difficult to determine what their age is. That gives me some concern, because we need to be absolutely clear that we are not enlisting minors into our armed forces, not only because it is wrong to do so, but because it would open us up to international criticism. I would be concerned if there was a real possibility of minors being enlisted from abroad into the British armed forces.
I accept that the Minister intends to give a defence to recruiting officers who may be acting in good faith, but I struggle to see why that is necessary if we are absolutely rigorous about who we recruit. If there is any doubt, surely we must say no to people who are seeking to join the armed forces. The need for the defence should not arise. I support the measure, but it worries me that there is a significant possibility that people under the age of 16 from other countries may be enlisted to our armed forces.
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