Armed Forces Act (Continuation) Order 2018

Earl Howe Excerpts

Tuesday 20th March 2018 Grand Committee

Moved by

[Earl Howe]

That the Grand Committee do consider the Armed Forces Act (Continuation) Order 2018.

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, as ever, our Armed Forces continue to serve us well, yet they cannot do so without the consent of Parliament. Today we return to our annual consideration of the legislation governing the Armed Forces: the Armed Forces Act 2006. The purpose and effect of the draft order we are considering today is to enable the 2006 Act to continue in force for a further year, until 11 May 2019. This reflects the constitutional requirement under the Bill of Rights that the Armed Forces may not be maintained without the consent of Parliament.

Noble Lords are familiar with the fact that the legislation which provides for the Armed Forces to exist as disciplined bodies is renewed by Parliament every year. But it is right that I explain, for the record, why we do this. Every five years, renewal is by Act of Parliament—an Armed Forces Act. The most recent was in 2016. Between the five-yearly Acts, renewal is by annual Order in Council. This is such an order. The Armed Forces Act 2016 provided for the continuation in force of the Armed Forces Act 2006 until 11 May 2017 and for further renewal thereafter by Order in Council for up to a year at a time, but not beyond 2021. If the Armed Forces Act 2006 is not renewed by Order in Council before 11 May 2018, it will automatically expire. If the 2006 Act expires, the provisions necessary for the maintenance of the Armed Forces as disciplined bodies would cease to exist.

The 2006 Act contains nearly all the provisions for the existence of a system for the Armed Forces of command, discipline and justice. It creates offences and provides for the investigation of alleged offences; the arrest, holding in custody and charging of individuals accused of committing an offence; and for them to be dealt with summarily by their commanding officer or tried in the court martial. Offences under the 2006 Act include any criminal offence under the law of England and Wales, and those peculiar to service, such as misconduct towards a superior officer and disobedience to lawful commands. I remind the Committee that the Act applies to members of the Armed Forces at all times, wherever in the world they are serving.

Perhaps the clearest example of the effect of expiry of the 2006 Act would be that the duty of members of the Armed Forces to obey lawful commands, and the powers and procedures under which this duty is enforced, would no longer have effect. Commanding officers and the court martial would have no powers of punishment for failure to obey a lawful command, or other disciplinary or criminal misconduct. Members of the Armed Forces would still owe allegiance to Her Majesty, but Parliament would have removed the power of enforcement. The obligation of members of the Armed Forces is essentially a duty to obey lawful commands. They have no contracts of employment and so no duties as employees. The 2006 Act also provides for other important matters for the Armed Forces, such as for their enlistment, pay and redress of complaints.

To conclude, the continuation of the Armed Forces Act 2006 is essential for the maintenance of discipline. Discipline, in every sense, is fundamental to the existence of our Armed Forces, and, indeed, to their success, whether, for example, at home supporting emergency services and local communities following the recent heavy snowfall, or supporting the police in their investigation into the poisoning of the former Russian spy Sergei Skripal in Salisbury; playing their part in putting an end to the sickening and illegal poaching industry in Malawi; or, as one might more immediately think of, defeating Daesh in Iraq and Syria.

We have the finest Armed Forces in the world and the dangers they face are ever changing. We owe the brave men and women of our Armed Forces a sound legal basis for them to continue to afford us their vital protection. For those reasons, I beg to move.

[Lord Craig of Radley (CB)]

My Lords, I totally support the order, but I will raise one point mentioned in the Explanatory Memorandum. It says that the Minister of State for Defence has stated:

“In my view the provisions of the Armed Forces Act (Continuation) Order 2018 are compatible with the Convention rights”.


That is the European Convention on Human Rights. As has been evident in recent years, there are apparent disconnects between the Armed Forces legislation and some aspects of human rights law that I and other noble Lords have drawn attention to in various debates in your Lordships’ House. What are Her Majesty’s Government doing to address these difficulties, particularly where they arise in the course of live operations—difficulties that have, indeed, been acknowledged and spoken to by Ministers?

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[Lord Tunnicliffe (Lab)]

My Lords, I thank the noble Earl for introducing this order. I note the excellence of the Explanatory Memorandum. In previous years, we have had esoteric conversations about what would happen if we did not pass the order. This time, we are told. We could not tell them to go and get Ted. I fully support the order and, in doing so, also pay tribute to the men and women of our Armed Forces. Like other noble Lords, I have looked at the original documentation. The national archive refers to the Bill of Rights 1688 as, “1688 CHAPTER 2 1 Will and Mar Sess 2”. If you dive into it, there are two references to a standing army. The second says that,

“the raising or keeping a standing Army within the Kingdome in time of Peace unlesse it be with Consent of Parlyament is against Law”.

Why was that clause put in? They were turbulent times: it was an armed invasion and there were some clashes, but it ended up with a deal between William and Mary and Parliament. Why would Parliament at that point be so concerned about not having a standing army? In those turbulent times, a standing army was the means by which the Crown was able to impose its will on the people. There was, therefore, a strong movement for standing armies to be under the control of Parliament and to be illegal without its approval.

I do not think we are that worried any longer about a standing army imposing the will of the Crown, or even Parliament, on the people. However, this annual event gives an opportunity for a short annual review of the Armed Forces and their administration. Sadly, the Armed Forces are in a sorry state at the moment. They are underfunded by—I think the consensus figure is—about £2 billion per annum. Because of the financial constraints, some of the Armed Forces are undertrained. Morale is bravely measured each year by the Ministry of Defence, and has fallen in recent years.

I will concentrate today on how the Armed Forces are being administered. Let us look at the present confusion. On 20 July 2017 the Cabinet Office—not the Ministry of Defence—announced a strategic defence and security review implementation. It said:

“The government has initiated work on a review of national security capabilities, in support of the ongoing implementation of the National Security Strategy and Strategic Defence and Security Review … The work will be led by Mark Sedwill, the National Security Adviser, with individual strands taken forward by cross-departmental teams, and will be carried out alongside continued implementation and monitoring of the 89 principal commitments set out in the NSS & SDSR … The government is committed to report annually on progress in implementing the NSS & SDSR, and published its First Annual Report on implementation in December 2016. Further progress on implementation of the NSS & SDSR, and related work, will be reported in the Second Annual Report after the end of the second year of implementation”.


I believe that any reasonable person would have taken that to mean that if the first annual report was produced by the end of 2016, the second annual report—which is now apparently being subsumed into the Cabinet Office review—would have been published by the end of 2017. In fact, I am reasonably sure that it was not. Indeed, the question remains of when the report will be published.

The Joint Committee on the National Security Strategy is launching an inquiry into the national security capability review, which I assume is the same review. That was announced on 18 January 2018. So it is apparent that that Joint Committee had not seen the conclusions of the review. Meanwhile, on 25 January the noble Viscount the Minister—I am sorry, the noble Earl—

[Earl Howe]

I am also a Viscount.

[Lord Tunnicliffe]

If only I had the noble Earl’s upward mobility. We mere Barons should show respect, I am so sorry. He was kind enough to write to us on 25 January. The letter said:

“I am writing to describe the purpose of this Government’s Modernising Defence Programme and what it will involve. Following Ministerial discussion on the National Security Capability Review, which will be published later in the spring”—


when is the spring, I ask—

“the Secretary of State for Defence has agreed with the Prime Minister and the Chancellor that further work is required to modernise Defence. We must ensure that we deliver the best military capability that constantly evolves to counter the threats we face, and that this is done in a sustainable and affordable way”.

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I have four questions for the Minister. When will the National Security Capability Review be published, or has it been published with nobody telling Google? How do the NSCR and the modernising defence programme fit together? They seem to look at precisely the same subject. What does “strategic affordability” mean? When will the modernising defence programme be published? Will the Minister please convince me that the brave men and women of Her Majesty’s Armed Forces have the professional administration and civilian leadership that they deserve?

[Earl Howe]

My Lords, let me begin by thanking in particular the noble Lord, Lord Jones, for having focused our minds on the historical origins of the order. I fully agree that we should not treat this as a mere routine measure. It behoves us to remind ourselves of where this all came from and where the legal framework on which our Armed Forces rely originates. I had to turn to my officials for a copy of the Bill of Rights in light of the comments of the noble Lord, Lord Campbell—

[The Deputy Chairman of Committees (Lord Geddes) (Con)]

My Lords, a Division has been called in the Chamber. The Grand Committee stands adjourned for 10 minutes, to resume at, give or take, 5 pm.

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[The Deputy Chairman of Committees]

My Lords, I rudely interrupted the noble Earl mid-flow. Perhaps he would like to continue.

[Earl Howe]

My Lords, not for the first time, we can be grateful to the noble Lord, Lord Campbell of Pittenweem, for drawing our attention to what may seem an anomaly in the date I read out from the Bill of Rights. I hope that I can convince him that I was correct—and that he too was correct. The Bill of Rights, a copy of which I have in my hand, is indeed dated 1688. However, the noble Lord may be interested to know that in the preamble of the Bill, the following words appear:

“Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome”,


and so on. It is apparent from the notes attached to the Bill that:

“The Bill of Rights is assigned to the year 1688 on legislation.gov.uk … although the Act received Royal Assent on 16th December 1689. This follows the practice adopted in The Statutes of the Realm, Vol. VI (1819), in the Chronological Table in that volume and all subsequent Chronological Tables of the Statutes, which attach all the Acts in”,


the first year of William and Mary’s reign,

“to the year 1688. The first Parliament of William and Mary (the Convention Parliament) convened on 13th February 1689 (1688 in the old style calendar—until 1st Jan 1752 the calendar year began on March 25th)”.

So I am afraid that we are at the mercy here of a historical quirk which has, quite rightly, prompted the noble Lord, Lord Campbell, to question the accuracy of what I said.

[Lord Campbell of Pittenweem]

I am grateful to the noble Earl for his extensive investigations into these matters. I can say only that I would not have dared to correct the First World War veteran who taught me history to tell him that it was 1688 and not 1689.

[Earl Howe]

I think that in modern parlance we can safely say that it was both, but as a working basis, 1689 will do very well.

The noble and gallant Lord, Lord Craig, returned us to the issue of human rights, as he has done in the past. I understand entirely the concerns that he outlined. Clearly, we need to address what many people see as a flaw in the way that the law has come down upon certain events and situations experienced by the Armed Forces in the course of combat and in conflict zones.

For the future, and I make it clear that we cannot do anything about the past, the Government have already announced that they would consider on a case-by-case basis a derogation from the European Convention on Human Rights, where that is appropriate in the context of a future operation overseas. That could help to ensure that our troops can confidently take difficult decisions on the battlefield, and enable us to focus on the defence budget rather than on lawyers. Some would say that lawyers have had too big a slice of the cake in recent years when it comes to the cross-questioning of our Armed Forces personnel in various contexts. I am the first to agree that it has been very burdensome and difficult for many individuals.

[Lord Tunnicliffe]

Does the noble Earl agree that the problems in general have not been with the Human Rights Act but with very crooked lawyers?

[Earl Howe]

I agree with the noble Lord that dishonesty on the part of lawyers has played a part in the difficulties that I have referred to. Nobody wants to see service personnel facing extensive investigations and then re-investigations into the same incident. The situation is exacerbated when members of the legal profession are less than honest in the way that they handle the cases before them.

The noble Lord, Lord Campbell, asked about the report that he had read saying that a battalion specialising in chemical and biological weapons had been stood down or disbanded in recent years. He is quite right that the joint CBRN regiment was disbanded but I can reassure him fully that the capability which that regiment had is retained in the services, especially in the Army and the RAF. What matters, particularly in the context of the recent events in Salisbury, is that the capability we need was there when it was needed. Our Armed Forces stepped up to support the police in their investigation in Salisbury, building on the vital expertise and information already provided by our world-renowned scientists at the Defence Science and Technology Laboratory at Porton Down. We have the right people with the right skills to assist with the crucial inquiry that is in progress.

I would just add that our modernising defence programme, which is currently under way and to which the noble Lord, Lord Tunnicliffe, referred—I will come on to his question in a minute—will make sure that our country can respond to the changing nature of warfare and the new threats that we face, including those of a chemical and biological nature. The noble Lord, Lord Campbell, may have read that we have announced a £48 million investment in a new chemical weapons defence centre at Porton Down to maintain our cutting edge in chemical analysis and defence.

The noble Lord, Lord Jones, referred to the press reports from today relating to the Royal Military Police. Every year, the service police carry out a wide range of investigations into many different service offences. They play a key role in ensuring that allegations are investigated and offenders brought to justice, but it is clear that, in this specific case, something went very wrong. We will review that. The service police are a key part of the service justice system and as such are already included in the service justice system review, which we announced last year. It is due to report by the end of this year. The policing aspects of that review are being led by Sir Jon Murphy, the former chief constable of Merseyside Police, and we will of course consider carefully any recommendations that he makes.

I turn to the questions asked and points raised by the noble Lord, Lord Tunnicliffe, who asked me about the national security capability review and how it dovetails into the modernising defence programme, which we are leading from the Ministry of Defence. First, on the timelines, the Government will publish a report on the NSCR at Easter. The Ministry of Defence aims to be in a position to share headline conclusions from the MDP by the NATO summit in July. The NSCR essentially updates the Government’s analysis of the threats and risks to the United Kingdom and articulates what an integrated, cross-government approach to national security ought to look like. When published, the report will set out high-level findings across 11 of the 12 strands of work that make up the NSCR, but will refer to defence—the 12th strand—only at a strategic level. The defence element of the NSCR identified that further work was needed to modernise defence to deliver better military capability and value for money in a sustainable and affordable way. Therefore, the National Security Council commissioned a separate, further programme of work, namely the modernising defence programme, or MDP.

The noble Lord, Lord Tunnicliffe, questioned the meaning of “strategic affordability”. That phrase is a condensed way of describing what we are seeking everybody’s views on this consultation: how we marry strategy and affordability. By strategy, we are referring to not only the ways we should plan to counter the various threats identified in the 2015 SDSR, but the emphasis that we should attach to each strand of those capabilities. Different people will have different views on that, but we have to consider the affordability of all that we do. The MDP will build on the findings of the NSCR and the Ministry of Defence will continue to consult colleagues across government throughout the course of the programme.

The noble Lord asked about the apparent lack of synchronicity in launching the MDP before we published the NSCR. There is a very simple reason for that. Earlier this year, as the NSCR was reaching its final stages, it became clear to us that further work was needed to modernise defence. To conduct that work at the necessary pace, it was agreed by the National Security Council that the MoD should initiate the modernising defence programme without further delay. There would be no benefit from waiting for the publication of the NSCR report before starting work on the MDP. Work across government on the NSCR and the MDP continues to be, I assure the noble Lord, fully joined up.