Armed Forces Bill
MEMORANDUM TO THE
DEFENCE SELECT COMMITTEE
THE ARMED FORCES BILL
Introduction
An Armed Forces Bill is required every five years. This is for constitutional reasons dating back to the Bill of Rights 1688, which said that the keeping of an Army in time of peace shall be against the law "unless it be with the consent of Parliament". The requirement for Parliamentary consent is observed by an Armed Forces Bill every five years and an affirmative order, which is debated in both Houses, to continue the legislation in force in each of the intervening years.
These Bills provide the legal basis for the Armed Forces and their disciplinary system. The most recent of them – now the Armed Forces Act 2006 – introduced a single system of law that for the first time applied to all Service personnel, from all three Services, wherever in the world they are operating.
The Armed Forces Act 2006 was brought fully into force on 31 October 2009. The time taken to achieve this was largely due to the substantial amount of secondary legislation that was needed to add the detailed provisions. Other work involved preparing written guidance and providing training for members of the Armed Forces who are responsible for the operation of the Service disciplinary system, in particular a comprehensive new ‘Manual of Service Law’. As a result of the change, the three Service Discipline Acts: the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957 have been repealed.
The law governing the Armed Forces is now provided very largely in or under the Armed Forces Act 2006. It is thus the single most significant piece of legislation governing the Armed Forces. Since it came fully into force last October, feedback from the Armed Forces has confirmed that the legislation is operating well: the transition from the three old systems to the single new one gave rise to fewer problems than we might have feared. Reports from users across all three Services have all been favourable and only a small number of amendments have needed to be made to the new Manual of Service Law. Since the legislation will expire in November 2011 unless it is renewed by primary legislation before then, one of the main purposes of the forthcoming Bill is to renew the 2006 Act for a further five years.
As might be expected following such a significant and successful change, the next Armed Forces Bill will be more modest in scale. Although it includes some important provisions relevant to discipline, we have also taken the opportunity to address some important defence issues in other areas. As part of the preparation for the Bill, an exercise was undertaken across the Ministry of Defence to identify both disciplinary and wider proposals that should be included in the forthcoming legislation.
All the proposals were then assessed to ensure that they did indeed need to be done through primary legislation and that they commanded broad support from stakeholders within the Ministry of Defence. A number were discarded as a result of that scrutiny.
On the disciplinary side, the important provisions in the Bill include the extension to the Service police forces of statutory inspections by Her Majesty’s Inspectorate of Constabulary. In other areas, the Bill includes important provisions developing the procedures for the redress of complaints by Service personnel; procedures for maintaining standards within the Ministry of Defence Police; and provision to enable the extension to prisoners of war of the jurisdiction of the new courts and procedures in the Armed Forces Act 2006, thus allowing the creation of up to date rules to replace the current ones, which date from 1958.
A short description is given below of each of the main proposals that remain in the Bill.
One subject which is not in the Bill but which the Government has very much in mind is the development of the Armed Forces Covenant. Work on this complex area is in hand, and will include the question of what legislative action may be required and how it should be taken forward. It is therefore too early to say whether we might return to the subject during the Bill’s passage.
It is also too early to say what might be the outcome of the Strategic Defence and Security Review, but the Department does not expect the provisions in the Bill to be affected. The Department aims to introduce the Bill during the week beginning 1 November 2010.
Contents of the Bill
Renewal of the Armed Forces Act 2006
Renewal of the Armed Forces Act 2006 to be by primary legislation after five years, with annual renewal by Order in Council in each of the intervening years up to a maximum of five years. Statutory renewal is considered a constitutional requirement which has been observed since the Bill of Rights 1688.
Independence of the Service police
Recent judicial reviews raise the question of whether Service police investigations are independent for the purposes of the European Convention on Human Rights. This has encouraged us to look in detail at every aspect of the Service Police and the legislation which governs them. While the judicial reviews are still in progress, these proposals seek to strengthen even further the safeguards for the high standards of independence and effectiveness which we expect from the Service police. The proposals are for the appointment of Provost Marshals by Her Majesty; statutory inspection by Her Majesty's Inspector of Constabulary; and making further specific provision for duties to safeguard the independence of Service police investigations from the chain of command.
Service complaints
In the case of Crompton v UK, the European Court of Human Rights considered the compliance with Article 6 (everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal) of the statutory complaints system for members of the Armed Forces. The system is an internal one with judicial review available. The European Court held the system to be compliant in relation to the particular case. But the Court also stated that in some cases which turn on a question of fact, the availability of judicial review would be insufficient. As a result, the proposal is for the Armed Forces Act 2006 to be amended to allow any Service complaint panel to include one or more independent members and to remove the requirement that at least one member of a Service complaint panel must always be a senior officer.
Testing for alcohol and drugs
The Railways and Transport Safety Act 2003 set limits for alcohol consumption, created offences and allowed testing based on reasonable cause to believe an offence had been committed. These provisions apply to professional seamen and to those performing an aviation function. The Services have an exemption from the 2003 Act, so that at present there is no compulsory testing before an incident where it is suspected that a Service person may be under the influence of drugs or alcohol. The aim of this proposal is to allow the Service Police to test personnel where they are suspected of being over a set limit, rather than relying on testing after an incident. The proposal would not remove the current exemption from the 2003 Act, but would instead introduce a bespoke scheme for the Services.
Prisoners of War discipline provisions
In order to comply with our obligations under the Geneva Conventions, a 1958 Royal Warrant establishes regulations governing the status of prisoners of war and the discipline to which they are subject. These regulations are now out of date. Consideration is being given to how to provide for a disciplinary system and courts which meet the requirements of the European Convention and which can deal with both disciplinary or criminal offences committed by prisoners of war while in captivity. The Bill provides for the main Service Courts created by the Armed Forces Act 2006, in particular the Court Martial and the Summary Appeal Court, to have a jurisdiction in respect of prisoners of war. On that basis, it is intended to provide a full new regime in respect of prisoners of war, derived from the Armed Forces Act 2006.
Ministry of Defence Police Regulations
This proposal is to allow the Ministry of Defence police to make provision equivalent to Home Department police force regulations for the purposes of dealing with poor performance and attendance of police officers. This would bring Ministry of Defence police procedures for dealing with these matters into line with those of the Home Department police forces and would mean that Ministry of Defence police officers (who are civil servants) were no longer subject to the Ministry of Defence’s civilian restoring efficiency procedures. This would involve a change to the current process for considering appeals against dismissal for poor performance: in future, these would be handled by an independent Police Appeals Tribunal rather than by the Civil Service Appeals Board. Only in respect of cases related to compensation would the Civil Service Appeals Board continue to handle appeals from Ministry of Defence Police officers.
NATO Status of Forces Agreement
The NATO Status of Forces Agreement makes provision relating to certain types of claim brought in participating States against visiting forces and the States responsible for them (known as sending States). The main types of claim covered are ones for personal injury and damage to property. All participating States benefit from these arrangements which seek to prevent the sending State from being entangled in litigation in the receiving State. The aim is for the receiving State to settle the claim and recover costs from the sending State in accordance with the terms of the NATO Status of Forces Agreement. The arrangements provided by the UK are in legislation that dates back to 1952. At present, if the sending State is sued in the UK courts on these grounds, the Secretary of State for Defence has the task of seeking to settle the claim, but if that fails the sending State has to be involved as a party to the litigation. Concerns about these arrangements have been expressed by the US (the main sending State to the UK) over a number of years, as they do not fully prevent the US becoming entangled in UK litigation. The proposal is that, if settlement is not reached, the Secretary of State for Defence will be able to opt to step into the shoes of the sending State for the purposes of litigation.
Definition of civilians subject to Service discipline
The Armed Forces Act 2006 defines the categories of civilians who are subject to Service discipline. Some of the definitions require being in a designated area. It is intended to limit some these definitions so that they only apply if the person carries out a specified role in the designated area.
Access to excluded material
At present the Service police have the power to obtain a search warrant, but only as to "relevant residential premises". Broadly speaking, these are residential premises occupied by members of the Armed Forces or civilians who are subject to Service jurisdiction while abroad because of their close involvement with the Services (for example dependants). This proposal is for an additional power for judge advocates to make production orders during an investigation by the Service police. The proposed power would apply to material held on any civilian or Service premises, but could not be backed up by a search warrant. A failure to comply with a production order under the Bill would be dealt with as a contempt of court.
Search warrants for relevant residential premises
The civil police can apply for warrants to search "as many sets of premises ... as it is reasonably practicable to specify". This is not the case for the Service police, who have to specify each set of premises they want to enter and search. If they then find they need to enter other premises, they have to return to the judge advocate and apply for a new warrant. This proposal is to allow the Service police to apply for warrants for unspecified premises, subject to the limitation that the premises must all be relevant residential premises.
Search of accommodation of civilians subject to Service discipline
This provision is to correct the failure in the Armed Forces Act 2006 to retain the provision in previous legislation allowing the Service police to obtain a warrant to search Service living accommodation occupied by civilians subject to Service discipline on the same basis as such accommodation when occupied by Service personnel.
Sex offenders’ orders
The power under the Sexual Offences Act 2003 to make Sexual Offences Prevention Orders is limited to the protection of members of the public in the UK. The proposal is to allow equivalent orders against members of the Armed Forces or other members of the Service community (including dependants) for the protection of members of the Service community while abroad.
Service Civilian Court sitting in the UK
Civilians subject to Service discipline who commit offences outside the UK can only be dealt with by a Service Civilian Court sitting outside the UK. The proposal is that the Service Civilian Court should be able to sit anywhere, while still only dealing with offences committed outside the UK.
Judge advocates sitting in civilian courts
This proposal is to make certain judge advocates eligible to be requested to sit in Magistrates’ Courts and the Crown Court.
Fines disparity
Under the Armed Forces Act 2006, the maximum fine that a commanding officer can award at a summary hearing is 28 days' pay. But if the offender is an officer or a warrant officer, the maximum is 14 days' pay (unless the permission of higher authority has been sought, in which case the maximum is 28 days' pay). The proposal is to apply the same maximum number of days’ pay across all three Services, regardless of the individual’s rank.
Administrative reduction in rank
The Armed Forces Act 2006 provides that, when disciplinary offences are dealt with administratively within a unit, the rank of a warrant officer or non commissioned officer may only be reduced by one rank. The aim of this proposal is to permit reduction by more than one rank, which will allow greater discretion in cases which are not serious enough to merit discharge but for which a single rank reduction is insufficient.
Naval charity
The Naval Medical Compassionate Fund Act 1915 provides for the management of funds resulting from the winding up of the Naval Medical Supplemental Fund Society. However, the Act requires that changes to the way the funds are regulated must be made by Order in Council. This is not in accordance with modern charity law practice. The aim of this proposal is to establish a Charity Commission scheme to which funds can be transferred. This would then allow the repeal of the 1915 Act.
Making byelaws
The Military Lands Act 1900 currently requires the consent of the Board of Trade to military byelaws affecting sea areas. Following transfers of responsibilities it is no longer clear who exercises this function. It is proposed to remove the requirement for consent, but it is intended that the Secretary of State will have to consider matters formerly considered by the Board of Trade such as public rights of access and navigation.
Ministry of Defence
8 September 2010
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