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The reason for the amendment, for which the Government are today seeking approval, is that the legislation under which the post of DSP was created—the Armed Forces Act 2006—is not now going to be implemented in its original timescale. The Act received Royal Assent in November 2006. Since then, work has been underway to implement it. That work has involved developing the detailed policy, drafting the secondary legislation, writing the manuals and preparing the training that will be needed to enable the Armed Forces to move to the new single system of service law.

The target date for implementation had, for some time, been established as 1 January 2009. However, during the summer, it became clear that some changes had taken place which meant the original target date might no longer be achievable. Those changes were connected to the very significant amount of secondary legislation being produced under the Act, not least the transitional provisions which will govern the move from the three current systems of service law to the single system under the 2006 Act.

The work on the secondary legislation and the main transitionals order proved to be much more complex and time-consuming than had been anticipated. With regard to the transitionals order, an assessment of quite how complex the work would be could not be made until the extensive policy instructions were finalised and drafting begun. That is not altogether surprising when you consider that we are moving to a single new system from three separate Acts of Parliament, which date back to the 1950s and which have been amended and updated periodically over the intervening decades.

Taken overall, it is vital that we get the transitional regime right. It is central to the interests of our Armed Forces that we ensure the transition to the new system of service law is as smooth as possible. As a result, it was announced by Written Statement on 7 October that implementation of the Armed Forces Act 2006 was to be postponed until October 2009. As the DSP was due to get his statutory powers from the Armed Forces Act 2006, the delay to its implementation means that he will not in fact be able to assume those powers when he had expected.

Fundamentally, that would have prevented him 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 therefore looked at how we might remedy the situation. We decided that the most suitable course would be to bring before Parliament legislation to amend the service discipline Acts, thus allowing Her Majesty the Queen to appoint Bruce Houlder as the prosecuting authority for each of the services. He will assume full powers as the DSP when the Armed Forces Act 2006 is implemented in October 2009. He has already laid out the plans for a new organisation which will bring together the staff of the current prosecuting authorities from 1 January 2009, and he has put in train what promises to be an extensive training programme for prosecuting officers.

When the legislation was considered in 2006, there was concern in some quarters that the person appointed to be the DSP might not have a service background. Defence Ministers at the time said that the main priority was to appoint the right person for the job. We

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believe that Bruce Houlder is that person; he brings impeccable legal credentials, credibility and charisma to the post. We said to Parliament that any person who was appointed to be the DSP and who did not have a service background would undergo a period of induction. The aim of that induction would be to give them a good understanding of how the Armed Forces operate. Speaking at Report on 31 October 2006, the noble Lord, Lord Drayson, said that it was,

Having started shortly after the DSP took up post in May, I am pleased to report that his induction has gone well and is now drawing to a close. As part of his induction, he has visited all the court martial venues and witnessed several trials in progress. He has also visited the service police and the Military Corrective Training Centre at Colchester. More widely, he has seen the Armed Forces working in command headquarters; he has seen them going about their day-to-day business at bases, units and stations in the UK and Germany; and he has seen them in the most difficult circumstances, on operations in Iraq and Afghanistan. In sum, he has travelled far and wide to develop a knowledge of the Armed Forces and what they do at home and overseas. This induction has given him a good understanding of the Armed Forces and, in particular, of how the service justice system operates. It will stand him in good stead as he takes on the important role of the first ever Director of Service Prosecutions.

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 towards implementation by keeping to the original timetable for the DSP taking up his prosecuting function. I assure the House that the Government will spare no effort to ensure that the work gets done on time and the 2006 Act is implemented next October. I am very clear that we must be able to move in an orderly fashion to the new single system of service law that the Armed Forces want. I commend the order to the Committee. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Armed Forces (Alignment of Service Discipline Acts) (No. 2) Order 2008. 30th Report from the Joint Committee on Statutory Instruments.—(Lord Tunnicliffe.)

Lord Astor of Hever: I thank the Minister for explaining the order. Originally, we were told that there would be 65 statutory instruments under the Armed Forces Act 2006, but that has now increased by 15 to 80 during the past 12 months. I would be grateful if the Minister could say why that should be; is there a level of complexity that was not foreseen or is it simply a lack of foresight? We understand that full implementation hinges on a transitional order that will be laid this summer. Why has there been this delay in introducing such a fundamental measure?

The Government’s decision to appoint someone as DSP who has not served as a regular or reserve member of Her Majesty’s Armed Forces is bound to raise

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further questions about how well the new system is to emerge from the operation of the old. However, I was comforted by what the noble Lord said in his opening remarks. Can he provide information about whether he anticipates that the effect of the change to a single system of discipline will result in a more swift delivery of justice? There continues to be a wide disparity in the time that it takes for a case to arrive at court martial. Last year, for example, that took an average of 267 days in the Royal Air Force and 74 days in the Royal Navy. Will the Minister explain how the order will address this?

Our attitude to the legislation has throughout been constructive but realistic. It still contains wisps of the doctrinaire, as to which we remain unhappy. However, it is evident that the order is a necessary step and we do not oppose it.

Lord Lee of Trafford: We support the order, which provides for the appointment of a qualified officer to be the prosecuting authority for the relevant service, be it Army, Air Force or Navy. We recall the debates on the Armed Forces Bill 2006, now an Act, when my sadly missed noble friend Lord Garden tabled an amendment to ensure that the director of service prosecutions could be appointed only if he had at least two years’ regular or four years’ reserve military experience in the previous 10 years. Sadly, the Liberal Democrat Front Bench was not successful in getting the amendment into the Bill. Although the order does not address that specific point, the clarification that it makes to the definition of a prosecuting authority goes some way to alleviating our concerns about the relevant provision of the 2006 Act. Thus we are content.

Lord Tunnicliffe: I thank noble Lords for their contribution. The number of orders has risen, as stated, from 65 to almost 80. That some existing statutory instruments require updating to be brought into line with the terminology of the Armed Forces Act 2006 is the reason for the majority of the extra orders.

The noble Lord, Lord Astor, asked the reason for the delay. I have some personal experience of large projects and they are extraordinarily difficult to estimate. I do not think that we would be served by much more analysis of the delay. Frequently, the complexity comes only when you get into the detail. I am sure that the noble Lord will agree that this is a process that we all saw as having to be thorough. We did not want to go into it with any glitches, and we wanted the Armed Forces to go into it with the right people and the right training. The delay will allow for that. When a project is delayed, one has a choice: “Do I do it slowly and thoroughly, or a bit more quickly to achieve timetable?” This is an area where slowly—or, rather, with all due speed—and thoroughly is right.

I was asked whether the order will result in more swift delivery of justice. I do not yet have a note on that, so I shall write to noble Lords.

I return to the matter of the director of service prosecutions not being a former officer, about which I know the House was concerned. Having looked at what has happened, I am seized of the thoroughness of the induction. Perhaps I may read a letter from the

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DSP to Vice Admiral Wilkinson, who is Deputy Chief of Defence Staff (Personnel), about his induction. The DSP said:

“The induction that I have received over the last 6 months culminating in a visit to Afghanistan and Iraq has been most valuable. In the course of these months, alongside the work I have been doing towards setting up the new overarching prosecuting authority, I have seen just about every aspect of service life that will be relevant to my role, and responsibility towards discipline and prosecutions. ... All three services have offered me the greatest help and support towards gaining an understanding of the clear context in which I will be taking future decisions. These will bear not only on the lives of servicemen and their families, but also of the victims where criminal offences occur. ... I have tried to reassure COs wherever I have gone, that whilst I clearly have my job to do, I am also here to support the operational effectiveness of HM Armed Forces. ... This requires me to understand the context in which actions and decisions are performed and made”.



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I can assure the Committee that the Armed Forces are making every effort to induct him properly and I have every confidence that he will lead his new unit with distinction. I cannot emphasise enough how officials have stressed to me the importance of doing the training and getting the documentation right before the 2006 Act goes live. I have no note on swiftness and so I shall write.

On Question, Motion agreed to.

The Deputy Chairman of Committees (Lord Colwyn): As the two remaining orders will be rescheduled, that completes the business before the Grand Committee today. The Committee stands adjourned.


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