Armed Forces Act (Continuation) Order 2013
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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.
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 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.
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 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.
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.