Armed Forces Act (Continuation) Order 2018

Lord Craig of Radley Excerpts

Tuesday 20th March 2018 Grand Committee

[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?