Armed Forces Act (Continuation) Order 2013

Armed Forces Act (Continuation) Order 2013 7th Report from the Joint Committee on Statutory Instruments

Motion to Approve

9.21 pm

Moved by Lord Astor of Hever

That the draft order laid before the House on 2 July be approved.Relevant document: 7th Report from the Joint Committee on Statutory Instruments.

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The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever): The two instruments for our consideration today are the Armed Forces Act (Continuation) Order 2013 and the Armed Forces (Alcohol Limits for Prescribed Safety-Critical Duties) Regulations 2013. As is customary, I should like to say a few words in support of each of them, starting with the continuation order.

The purpose of this order is to continue in force the legislation governing the Armed Forces for a further period of one year until the end of 2 November 2014. Though a small item of business, this order is crucial to ensuring that the Armed Forces Act 2006 remains in force. As noble Lords will know, the Armed Forces Act 2006 provides for the disciplinary system of the Armed Forces wherever in the world they are serving. The Act contains many important provisions, but perhaps the most important ones are the duty to obey lawful commands and the mechanism for enforcing that duty. Without those provisions, the Armed Forces would be unable to continue as a disciplined force, and the practical effect of not continuing the Act would be that the Armed Forces, as we know and admire them, would cease to exist.

The legislation governing the Armed Forces has to be renewed by Parliament every year. There is an Armed Forces Act every five years. In between, there is an annual renewal by Order in Council, the draft of which is before this House for approval. It reflects the constitutional requirement under the Bill of Rights that the Armed Forces may not be maintained except with the consent of Parliament.

The most recent Act is the 2011 Act, which amended the 2006 Act and continued it in force on the basis I have already briefly described. Our aim was to implement the largest part of the 2011 Act by the spring of this year. We have done that. Work to complete implementation of that Act continues and work on the next has begun. We propose to introduce the next Armed Forces Bill in 2015, in time for it to complete its parliamentary stages and receive Royal Assent before extension of the 2006 Act given in 2011 expires. It is too early to say anything about the scope of that Bill.

I now turn to the new alcohol regulations. Currently, under the Armed Forces Act 2006, an offence is committed if a person subject to service law is, due to the influence of alcohol or drugs, unfit to be entrusted with any duty they may reasonably be called on to perform or their behaviour is disorderly or likely to bring discredit to Her Majesty’s forces. Tests for alcohol and drugs can be administered only after a serious incident. There is, however, no power to test an individual in the services before an incident where it is suspected that he or she may be under the influence of drugs or alcohol. Our aim is to provide commanding officers greater powers to deal with unfitness for duty through alcohol or drugs by allowing them to take action early, before an incident occurs.

The Armed Forces Act 2011 provides for the testing of persons subject to service law where they are suspected either of being over a set alcohol limit or of being unfit through drink or drugs to carry out any safety-critical duty. It created a framework for doing this based broadly on the provisions in the Railways and Transport Safety Act 2003. That Act provides an alcohol and

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drug testing regime in the civilian professional shipping and aviation environments. The services, however, are exempt from the provisions of that regime. We are not removing the current exemption from the 2003 Act. Instead we are introducing a bespoke scheme for the services. This is a further step to ensure that personnel conducting safety-critical activities are not impaired by alcohol or drugs. This will run alongside the compulsory drug testing programme.

The 2011 Act amends the 2006 Act to create a new offence with regard to the amount of alcohol a person subject to service law can have in their breath, blood or urine in relation to prescribed safety-critical duties. The regulations we are considering today prescribe those safety-critical duties to which a specific alcohol limit is to apply, and the related alcohol limits for breath, blood or urine. To be specified as a duty to which a particular limit will apply, a duty must be such that performing it while impaired by alcohol or drugs will result in a risk of death, serious injury or serious damage to property, or serious environmental harm.

The regulations set out two levels of alcohol for the testing of breath, blood or urine in relation to prescribed safety-critical duties. The majority of safety-critical duties fall into the higher alcohol levels. These mirror the alcohol limits for drink-driving in criminal law under the Road Traffic Act 1988. That is a recognised and easily understood benchmark. Lower alcohol levels are set for those duties that require a heightened speed of reaction in an emergency situation, such as aviation or carrying a loaded weapon. Such duties demand that personnel should have no ingested alcohol in their body on commencement of the duty. This recognises that even small amounts of alcohol in a person’s system can have a detrimental effect on his ability to perform such duties. However, I should say that a small tolerance level is allowed because in some people small amounts of alcohol occur naturally in their body.

There are no accepted limits for the presence of illegal drugs. Under the 2006 Act, as amended by the 2011 Act, a commanding officer will be empowered to require a person who is subject to service law to co-operate with preliminary testing when he has reasonable cause to believe that that person’s ability to carry out any safety-critical duty is impaired through alcohol or drugs or that the person is over the prescribed limit for the particular safety-critical duties prescribed in these regulations.

In summary, these regulations implement the scheme agreed by Parliament in the 2011 Act so that all concerned can be confident that those performing safety-critical duties are not doing so with any impairment through alcohol or drugs.

9.30 pm

Lord Tunnicliffe: My Lords, I have a general objection to Front-Benchers speaking from the Back Benches, but this is a subject area close to my heart. With my noble friend Lord Rosser I was part of the team which represented the Opposition during the passage of the 2011 Act. I hope that the noble Lord might be able to give us a more colourful picture of where things stand as this would seem to be an important step in the

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progress towards the powerful management of alcohol within the forces. I read it as an important step forward and, as such, I welcome it.

I have been involved in the world of work and alcohol since I learnt to fly in a university air squadron in the 1960s. We were still in the grip of a post-war tradition; alcohol and being part of the force were closely linked. Yes, you did not fly when you had been drinking, but virtually all the rest of the time, every evening, alcohol was part of that world. That was true in my early career as a pilot—once again, we had rules about drinking—but in the industrial relations world I lived in an enormous amount of business was done in an alcohol environment. I went into the oil world and the situation was the same. There was nothing special about me. I cannot claim that I did not enjoy it. That was the world we lived in. If you were trailing jet fuel you drank over dinner and in many social situations. It was how business was done. Looking back on it, it was wrong, in the sense that alcohol modifies how you make judgments and decisions, and you make better decisions when alcohol is averred. However, it is very difficult to change cultures where these behaviours are the norm.

I came into the railway industry in the late 1980s, and that had an alcohol tradition, for want of a better way of describing it. Public opinion came along and said, “This isn’t right”. We had the same situation, although, of course, staff would assure one that they were not under the influence of alcohol when they came to work. However, public opinion wanted something more, and we, as the management, saw that grasping that general direction was the right thing to do. Yes, a piece of legislation came along, but we had a very successful engagement with our trade unions, which saw that this was what society expected, and we introduced drug and alcohol testing. To say that it was traumatic would be too strong, but it was a shock to the industry. We drove alcohol out of the front line of the industry. It is interesting that we then recognised how we in the management, who did not have “critical responsibilities” at the time, had to follow suit. We had to set an example.

This will be, if I read it right, a shock to the services. It will need to be handled very sensitively by the chain of command and it will need a lot of help in terms of training, and so on. In aviation, it is interesting that you cannot even get a private pilot’s licence now without passing a paper which, although it is not called “alcohol management”, is all about being fit for duty and so on. That culture will become widespread, and it will seep upwards. Officers, including senior officers, will recognise that they have to set an example.

I hope that we get this right. It is important that the Armed Forces do not feel “done to”, and that they recognise the value of a change of culture. I am not suggesting that they have not been changing their culture, but this specification is very clear and makes the direction of travel absolutely clear. It will require some people to modify their behaviour, including management and leadership style. I commend the Government and the leadership of the Armed Forces for bringing forward this measure. I hope that its introduction is smooth and successful and that we can

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get across to the Armed Forces that it is a change that is good for them and for their safety and will be good for the long-term health and culture within the Armed Forces.

Lord Rosser: My Lords, it is interesting to note that there are now as many officials in the Box as there are Members of your Lordships’ House present. We have no issues with either of these measures. Debating the continuation order is an annual event, because, as the Minister said, it is necessary to enable the Armed Forces Act 2006 to continue in force for a further year, rather than expiring on 2 November this year. It would therefore be entirely legitimate, in a debate on that order, to raise just about any issue relating to our Armed Forces. However, I shall go to the other extreme and say very little. I raised in a debate on an earlier continuation order the question of whether, if the order were not passed, that would mean that there was no statutory basis or parliamentary authority for our Armed Forces, and the Minister responded to me on that point in writing at the time.

The Explanatory Memorandum refers to the recently introduced single system of service law. We recently had a debate on an order that provided for a reduction in the number of lay members sitting on a more serious case, and having to pass sentence where the defendant was pleading guilty. I raised a number of questions, to which the noble Lord has also responded to me in writing. I thank him for his usual and continuing courtesy, and the trouble he takes to reply to the points—at times not an insignificant number of points—raised both from this Dispatch Box and by other Members of this House.

I may come back to the Minister on his reply on courts martial and officers who are lay members, largely to seek further information about how the lay members are selected and what prior training they have had. I acknowledge the parallel with a civilian jury, who determine guilt or otherwise, and who have had no prior training—but that does not apply to those who pass sentence. If I decide to explore that point further, I will initiate the process either through a written question or by writing to the Minister.

On the continuation order, I conclude by expressing appreciation and gratitude to our Armed Forces for the vital work that they do—often, as we all know, at considerable personal risk to their well-being, and sometimes at the cost of an all too real personal sacrifice—to protect our nation and provide us with the level of security needed to establish and maintain a civilised and peaceful society.

We welcome the Armed Forces (Alcohol Limits for Prescribed Safety-Critical Duties) Regulations. There are a few points that I would like to raise and comments that I would like to make. As my noble friend Lord Tunnicliffe said, attitudes towards excessive drinking have changed in recent years, and its unacceptability and potential consequences both for the drinker and for those with whom they come in contact directly or indirectly are more widely acknowledged. We have seen changes in culture, particularly in the field of work and employment, including the transport industry.

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I well remember some years ago being at a lunch attended by many, in a London hotel, and sitting at the same table as a number of senior British Rail managers. On tables all around us, some alcohol was being consumed. The senior British Rail managers had none. They would all be back at their jobs in the afternoon, and thus on duty. Being on duty having recently consumed alcohol was no more permitted for them than it would be for someone on the front line driving a train or maintaining signalling equipment. Will the Minister indicate whether the alcohol limits we are talking about in this order will in reality if not through this order apply to senior military personnel, including at the very highest level of our Armed Forces? They, too, make decisions which can have a profound impact on those they command, including on their safety, as well as on the security of this country, and on costs and finances. The fact that the impact of the decisions that they make may not always become obvious immediately should in no way detract from the requirement that, when they make those decisions, they should be in a completely fit state to do so.

The regulations provide for two maximum levels of permissible alcohol intake, one being much lower than the other. It would be helpful if the Minister could say why it has been felt desirable to have two different levels, rather than simply one—namely, the lower level—which would apply to all those duties listed here being undertaken. They are all safety critical, and judgment and reactions can be impaired by alcohol. I assumed something that the Minister confirmed, that the reason there is not zero tolerance in respect of alcohol limits is that it appears possible for two people who have had, or, more relevantly, have not had, alcohol, to produce different readings which, certainly in respect of meeting a zero tolerance standard, could result in an injustice. If, however, we are to have two different levels of alcohol limits related to the duties being undertaken, it would be helpful if the Minister could say perhaps a little bit more than is in the Explanatory Memorandum about the kind of criteria used to determine which duties should fall in which category of maximum acceptable alcohol limits.

I certainly have no intention of asking the Minister to explain why each duty listed in the order has been put in the category shown in the order, except for one particular case. Carrying out duties as a diver is shown in the higher alcohol limit category; so, too, is the duty of supervising a diver. My understanding is that, if a problem arises for a diver, the actions and decisions taken, and speed of those decisions taken by the person supervising that diver, can literally be the difference between life and death. I simply ask why it was not felt appropriate to place the duty of supervision of a diver in the much lower category for maximum acceptable alcohol limits.

The regulations do not refer to testing procedures, but I assume that the procedures will be similar to those in respect of a civilian involved in a road accident or suspected of driving with excess alcohol. If that is the case, would an individual under these regulations be tested only if they were suspected of having excess alcohol; or, in respect of some or all of the duties listed, would there be automatic testing before an

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individual commenced their duties; or will there be random testing; or will it be up to the superior officer concerned to decide what to do in this regard? I am not sure the extent to which carrying out the duties listed in the regulations with an alcohol intake in excess of those laid down in these regulations is an issue at the moment. If it is not, the impact of the regulations is likely to be minimal. If it is an issue, the regulations will need to be introduced and implemented with a degree of care and thought if we are not to leave our Armed Forces with a feeling that they are being singled out and cannot be trusted, as my noble friend Lord Tunnicliffe said.

Culture change, if that is what these regulations are also intended to help achieve, does not often come quickly or easily. We are, however, all too aware of the shooting dead of an officer on the submarine HMS “Astute” in April 2011 by a submariner who was at least three times over the drink-drive limit while on guard duty. The submariner had been issued with the SA80 weapon by an officer before the shooting. The officer said that he was unaware that the submariner was under the influence of alcohol at the time. The coroner said that he would recommend random breath testing for Navy personnel. He also said:

“Anyone being drunk, or anywhere near drunk, on duty has, in my view, got to stop. … In my view the routine use of the appropriate machinery to at least establish the absence of alcohol in the system is necessary as I’m not convinced that the concept of heavy drinking on leave periods is likely to alter very much”.

Those words should give food for thought. The reality, as we know, is that someone with a level of alcohol inside them which impairs their ability to perform their duties is a danger not only to themselves but also to colleagues and others who are dependent on them performing those duties with maximum effectiveness and efficiency for their own safety, and for maximising others’ levels of effectiveness and efficiency. For that reason above all others, we support the regulations.

9.45 pm

Lord Astor of Hever: My Lords, I am very grateful to both noble Lords for the support they gave to the instruments that we have considered today. I particularly appreciate the welcome given by the noble Lord, Lord Tunnicliffe. He and I have discussed this issue in some detail in the past and I very much respect his views. He speaks with great authority on the matter. I share his views on alcohol.

The noble Lord said that it is difficult to change attitudes on alcohol. It is my experience as a defence Minister that there really has been a cultural change within the Armed Forces. Members of the Armed Forces no longer have an expectation that drink is appropriate. The Armed Forces have consistently taken a very strict view on drugs.

As a defence Minister, I manage to get around quite a lot and find that you hardly ever get served alcohol at lunchtime in messes. I cannot remember when I was last served alcohol in a mess. A couple of months ago, I visited a brigade of guards at Richmond and the lunch was totally alcohol-free. That would not have happened 10 years ago. This is certainly the case at a lot of other Royal Air Force and Navy messes. The noble Lord asked whether this issue would be handled

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sensitively. I discussed that with officials before the debate and I assure him that it will be handled very sensitively.

I also very much welcome the support given by the noble Lord, Lord Rosser. I echo the noble Lord’s support for, and appreciation of, what the Armed Forces do for us all. The noble Lord asked about the basis of the testing and whether it would be done by breathalyser or the taking of urine samples. He will have noted that I touched on this subject in my opening speech. The likelihood is that in most cases the sample will be of breath, as in the civilian system, but blood or urine may also be required if necessary. Preliminary tests could be by breath under Section 93B, preliminary impairment test under Section 93C or a preliminary drug test under Section 93D. However, the commanding officer will, of course, have had to make a judgment to refer an individual for testing, and the service police will decide which test to conduct.

The noble Lord asked why there were two categories; why not use just category 2—the stricter one? As I explained in my opening remarks, the lower limit is set for those duties that demand heightened reactions, such as when piloting an aircraft or duties that are particularly hazardous if performed while impaired, such as having a firearm and ammunition or dealing with explosives. The higher limit is the limit set in civilian law for drink-driving and is therefore appropriate to activities that can be carried out safely after consumption of a small amount of alcohol.

I should also say that we considered it important to provide a balance. On the one hand, we want to allow members of the Armed Forces to relax, with access to alcohol in moderation, when operational demands allow. On the other hand, we must ensure safety in operational effectiveness. Too stringent a regime would be unjustifiably oppressive. We have therefore only where necessary imposed a limit that amounts to a complete ban for duties.

The noble Lord asked what the criteria were for categories 1 and 2. I touched on this in my opening remarks but, for amplification, I should point out that the higher limit is itself a low limit—the one set for drink-driving. The lower limit amounts, in effect, to a total ban on alcohol. We do not wish to impose a total ban unless it is demanded by the nature of the activity. However, we are not saying that it is always right for personnel to conduct duties subject to the higher limit when they are only just under that limit. If there is any evidence to suggest that personnel are impaired, a commanding officer can take action under existing provisions relating to unfitness for duty.

The noble Lord pointed out that divers come under category 1, while diving supervisors are also category 1. He asked why they are not category 2. I emphasise that even the higher limit is not a licence to abuse alcohol. On the specific point of divers and their supervisors, we have consulted the services carefully about which duties should be subject to which limit. Our judgment is that while both activities are safety critical, they do not fall into the narrow category of activities for which the lower limit is considered to be necessary. We do not see any need to treat a supervisor more stringently than the divers.

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The noble Lord also touched on the point that the noble Lord, Lord Tunnicliffe, made about changing attitudes. Members of the Armed Forces can be considered to be on duty all the time, and it was therefore essential to provide a balance between allowing members of the Armed Forces of all ranks to have some relaxation, subject to the needs of operational effectiveness and especially of safety. The approach adopted was therefore to focus on duties that are safety critical. Unfitness or misconduct through use of alcohol or drugs remains an offence under Section 20(1) of the Armed Forces Act and covers instances in which service personnel are unable to carry out their duty, or their behaviour is disorderly or likely to bring discredit on Her Majesty’s forces. However, we do not want to introduce a regime that is oppressive or any more limiting than operational demands require.

We feel that there is evidence of a considerable change. It may be the case that there was a drinking culture in the past but my experience of the past few years strongly suggests that that is not the case now. These regulations seek to reinforce this change by creating a more professional and responsible approach to alcohol.

The noble Lord, Lord Rosser, mentioned the shooting incident on HMS “Astute”. The service inquiry found that nothing about Able Seaman Donovan, as witnessed by the duty personnel on board HMS “Astute”, had provided just cause for doubting his fitness to stand duty. I would not wish to speculate about whether the circumstances of this tragic case would or could have been different. In future, there will be a power to test individuals where there is reasonable cause to believe that a service person is unfit through alcohol or drugs, or has exceeded the prescribed alcohol limits for safety critical duties. A second-hand report that the offender had been seen drinking alcohol at a particular time may give reasonable cause for holding that belief.

The noble Lord asked whether testing will be random under the power. The answer is no. The power to test arises when there is some reasonable ground to believe that the person is in breach of the limit or is otherwise unfit for duty. This follows the civilian powers to test. I will study carefully what both noble Lords said, and if there is anything to add to what I have said, I will write to both noble Lords.

Motion agreed.

Armed Forces (Alcohol Limits for Prescribed Safety-Critical Duties) Regulations 2013

Armed Forces (Alcohol Limits for Prescribed Safety-Critical Duties) Regulations 20138th Report from the Joint Committee on Statutory Instruments

Motion to Approve

9.54 pm

Moved by Lord Astor of Hever

That the draft regulations laid before the House on 1 July be approved.

Relevant document: 8th Report from the Joint Committee on Statutory Instruments.

Motion agreed.

House adjourned at 9.55 pm.