Armed Forces Act 2006 (Amendment of Schedule 2) Order 2017
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The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, the instrument that we are considering today is the Armed Forces Act 2006 (Amendment of Schedule 2) Order 2017.
The Armed Forces Act 2006 established a single system of service law that applies to the personnel of all three services, wherever in the world they are operating. The Act provides nearly all the provisions for the existence of a system for the Armed Forces of command, discipline and justice. It covers matters such as offences, the powers of the service police, and the jurisdiction and powers of commanding officers and of the service courts, in particular the courts martial.
The draft instrument amends Schedule 2 to the 2006 Act. Schedule 2 lists serious service offences to which special rules on investigation and charging apply. The offences listed in that schedule are commonly referred to as Schedule 2 offences. They include serious disciplinary offences, such as mutiny and desertion, and serious criminal offences, such as murder, manslaughter and certain sexual offences.
The 2006 Act imposes a special duty on commanding officers with respect to the investigation of allegations of Schedule 2 offences and of circumstances which indicate that a Schedule 2 offence may have been committed by someone under their command. Under Section 113 of the 2006 Act, a commanding officer who becomes aware of such allegations or circumstances must ensure that the service police are aware of them as soon as reasonably practicable.
The Act also imposes a duty on members of the service police forces with respect to the investigation of Schedule 2 cases. Under Section 116 of the 2006 Act, the service police must refer a case to the Director Service Prosecutions if they consider that there is sufficient evidence to charge a person with a Schedule 2 offence. The offences listed in Schedule 2 include all offences under Part 1 of the Sexual Offences Act 2003, except: sexual assault, voyeurism, exposure and sexual activity in a public lavatory.
There has been much debate in recent years about whether these four offences should be listed in Schedule 2. Indeed, this House was instrumental in making the case for change. At the heart of those debates was the question of whether a commanding officer should have a role in the investigation of any allegations or circumstances which would indicate to a reasonable person that one of these offences has, or may have been, committed by a person under their command.
For the avoidance of doubt, I want to make clear what the Armed Forces Act 2006 requires of a commanding officer who becomes aware of allegations or circumstances which indicate that a service offence other than a Schedule 2 offence has or may have been committed. The commanding officer may ensure that, as soon as reasonably practicable, the matter is reported to the service police. Alternatively, he or she may ensure that the matter is appropriately investigated. An investigation other than by the service police will in some cases be appropriate because service offences include all offences which may be committed by service personnel under the 2006 Act, including the less serious disciplinary offences.
Lord Lea of Crondall (Lab)
My Lords, I pick up a point arising from the two speeches from these Benches and the Liberal Democrat Benches respectively. It is a long time since I did my two years’ national service, but I was for 35 years after that a trade union official. I pick up a point made by my noble friend Lord Tunnicliffe—namely, the services should reflect that in some respects service life is becoming more like civilian life, and is not just in a separate silo. For example, a lot of people deal with technical work, sitting in front of computers like everybody else. The long-standing civilian arrangements, which include a mandatory grievance procedure on the one side and a disciplinary procedure on the other, may be applicable to service personnel on a charge. Having been on a charge, I add that little twist to the matter. It is interesting to note the cultural changes that have occurred in the services. Women now hold senior ranks. I do not know what the most senior rank is that is held by a woman. For example, I do not know whether there is a female general, but women hold very senior ranks, including that of commanding officer. It would be interesting to get some feedback on how much the culture in the services has changed. Formerly, in any consultation where a parliamentarian was present, a senior officer would say, “Private, you agree with that, don’t you?”, and the reply was, “Yes, sir”. The point made by my noble friend Lord Tunnicliffe, and that made in a wider context from the Lib Dem Benches, are pertinent to the change in that culture.
Earl Howe
My Lords, I am very grateful for the continued interest noble Lords have expressed in these matters. Lest there be any doubt, the Government have always made it clear—as have the services themselves—that there is no place for sexual offending in the Armed Forces. We have listened to the concerns raised in this House. I hope noble Lords are reassured by the steps we are taking today; it is indeed true that the Armed Forces take any allegation of any type of sexual offence very seriously. I noted with interest the comments of the noble Lord, Lord Lea of Crondall, on this subject. He is right: there is no doubt that since he undertook national service there has been a dramatic change of culture in all sorts of ways. One change is that there is now zero tolerance of this type of unacceptable behaviour. As to whether the increasing presence of women and women officers has made a difference in that regard, I would not hazard a guess, but it can only have been a beneficial influence, if there was any such influence from that quarter.
The noble Lord, Lord Tunnicliffe, asked me a number of questions, the first of which was whether we have consulted the service chiefs in drawing up this order. Our proposals to amend Schedule 2 to the 2006 Act have been agreed by the Service Justice Board, which includes the Second Sea Lord, the Deputy Chief of the General Staff and the Air Member for Personnel. The service chiefs collectively are of course absolutely clear that there is no place for sexual offending in the Armed Forces.
As to whether we have consulted the rank and file personnel of the Armed Forces, the answer is: not specifically at ground level. Each of the services is involved in the policy-making process and guidance will be issued by the chain of command to let people know of the changes being made. However, it is important to remind ourselves that the changes that we are making today already happen as a matter of policy—policy which the services themselves introduced.
I think the noble Lord’s concern on that aspect of the issue can be addressed in part by the measures that the Armed Forces are taking to prevent sexual allegations and offences arising in the first place—the subject of his third question. I assure him that the Armed Forces are committed to addressing sexual harassment and sexual assault through a range of actions, including awareness campaigns and training presentations around sexual consent. The Chief of the General Staff has made permanent cultural and behavioural change one of his priorities. To that end, there have been poster campaigns and training packages to better educate personnel on social norms, as well as on what is expected of them arising from Armed Forces rules and regulations. The noble Lord, Lord Thomas of Gresford, cited the experience of the United States armed forces in this context.
As regards the potential bias or perception of bias that can arise in cases of this kind, we recognise the great courage that it often takes to come forward and report a sexual offence. To ameliorate the tendency that some would have to refrain from coming forward, we strive to ensure, through training and awareness campaigns, that personnel know how to report any inappropriate behaviour and what will happen should they do so. It is to be hoped that these measures are gaining traction.
As the noble Lord is aware, we publish annual statistics on sexual offences in the service justice system on the GOV.UK website. Statistics are currently available for 2015 and 2016 for cases where the service police have been the lead investigating agency and where the service justice system has retained jurisdiction of a case throughout. Information for 2017 will be published in the spring. I remind noble Lords that data are drawn from the three main components of the service justice system: the service police dealing with the investigation of a crime; the service prosecution authority dealing with cases referred; and the Military Court Service, which lists the cases and reports on outcomes. Our annual statistics are in accordance with the requirements of the Office for National Statistics.
I hope that covers the questions that noble Lords have put to me.