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The Armed Forces Bill was introduced into the House of Commons and was considered by a Special Select Committee which published its Report on 10 March 2011. This Report considers nine significant human rights issues raised by the Bill.
The treatment of detainees by members of the armed forces in Iraq is a subject which our predecessor Committee has considered a number of times. The allegations are the subject of a number of public inquiries and including Baha Mousa inquiry and the Al Sweady inquiry, while the Iraq Historical Allegations Team and the Iraq Historical Allegations Panel are also investigating the allegations. In light of the number of public inquiries and ongoing investigations into the issue, we do not consider the question in the context of this Bill. We may return to the issue in a future report, particularly if any inquiry finds the existence of systemic abuse of detainees by members of the armed forces.
The Bill contains provisions which are intended to enhance the structural independence of the service police and the independence and effectiveness of investigators. We do not come to a conclusion on whether these changes provide sufficient guarantees of independence of investigators in light of ongoing litigation directly concerning this issue. We do however believe that in order to give better, effect to the Government's intention that Her Majesty's Inspectorate of Constabulary report on the promptness as well as independence and effectiveness of service police investigations, an explicit reference to "promptness" should be added to the face of the Bill.
We are not persuaded that the Government has provided enough evidence to sufficiently justify the Bill's extension of the power of a judge advocate to authorise the entry and search of residential premises by service police to "all premises" on a potentially unlimited number of occasions. We do not believe the Government justification is weighty enough to justify the departure from the current procedures which protect against arbitrary or disproportionate interference with the right to respect for people's homes. We recommend that the power to authorise all premises and multiple entry warrants to enter and search residential premises be deleted from the Bill.
The Bill extends the power of Courts Martial to make Sexual Offences Prevention Orders in relation to persons who pose a risk of sexual harm while serving in the armed forces overseas. We welcome the Minister's assurance that the making of such an Order would be subject to the criminal standard of proof, but recommend that the Bill should be amended to make clear that the criminal standard should apply to any factual determinations necessary for the making or varying of any such Order.
The Armed Forces Act 2006 introduced Service Complaints Panels to deal with employment complaints, as there is no access for armed forces personnel to an employment tribunal. A recent judgment of the European Court of Human Rights found that in some cases the facts would need to be determined by an independent and impartial tribunal in order to comply with the right to a fair hearing. The Bill includes measures to respond to this judgment by increasing the flexibility of the Defence Council to convene a panel of independent members. We welcome the Government's proactive response to this judgement, but have concerns that there is still a risk that the power to convene the Panel may be exercised in a manner that is still inconsistent with the Article 6 right to a fair hearing. We welcome the Minister's assurance that decisions of the Defence Council are subject to judicial review, which will allow individuals to challenge the composition of the panel.
We have continuing concerns about the compatibility of the trial of civilians in a military context with the right to a fair hearing and we do not share the Government's confidence that the changes made by the Armed Forces Act 2006 will ensure that civilians are only tried by military courts in "exceptional circumstances" as required by the European Court of Human Rights.
The Bill requires the Secretary of State to lay before Parliament an annual report on the armed forces covenant. We welcome this report as it enhances the Government's accountability to Parliament for the protection of the rights of members of the armed forces.
The Committee received representations on under-18s serving in the Armed Forces in the context of this Bill. The Bill provides a good opportunity for Parliament to debate the service of under-18s in the Armed Forces and the recommendations of the UN Committee on the Rights of the Child on UK compliance with the UN Optional Protocol on Children in Armed Conflict. We believe that the Government should adopt an action plan for responding to these recommendations, clarify the arrangements for the discharge of under-18s from the Armed Forces and amend the service commitment made by under-18s to bring it in line with the commitment made by recruits of other ages. We are further concerned over the lack of statistics on the number of under-18s who request a discharge and are refused and consider there is a risk that without special provision for discharge of under-18s, service may not be considered voluntary in the sense required by the Optional Protocol.
In our view, the broad exemption for service in the Armed Forces from the protection of the Equality Act 2010 is disproportionate and unnecessary, although we welcome the Minister's commitment to keep the reservation to the UN Convention of the Rights of Persons with Disabilities under review.
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