Armed Forces Act (Continuation) Order 2014

Lord Rosser Excerpts

Tuesday 17th June 2014 Grand Committee

[Baroness Jolly (LD)]

My Lords, the purpose of the order is to continue in force legislation governing the Armed Forces—the Armed Forces Act 2006—for a further period of one year, until November 2015. In many respects this is a routine item of business; the legislation which makes the provision necessary for the Armed Forces to exist as disciplined forces is renewed by Parliament every year. This reflects the constitutional requirement under the Bill of Rights that the Armed Forces may not be maintained without the consent of Parliament. There is a five-yearly renewal by Act of Parliament, which is the primary purpose of Armed Forces Acts. The most recent Armed Forces Act was that of 2011 and the next is required by 2016.

Between Acts, there must be an annual renewal by Order in Council. That is the purpose of the draft order. This order is necessary for the Armed Forces Act 2006, as amended by the Armed Forces Act 2011, to remain in force. If the Order in Council is not made by the end of 2 November 2014, the Armed Forces Act 2006 will automatically expire. The effect of this would be to end the powers and provisions to maintain the Armed Forces as disciplined bodies. I will say more about this later.

The 2006 Act transformed the legislation governing the Armed Forces by introducing a single system of law that applies to all service personnel. It replaced three separate systems of service law contained in separate service discipline Acts which dated back to the 1950s. It includes a comprehensive system of discipline covering such matters as offences, the powers of the service police and the jurisdiction and powers of commanding officers and service courts, particularly the court martial. It applies to all service personnel, wherever in the world they are operating.

The service justice system is a bespoke criminal justice system that recognises the wide spectrum of environments and situations in which the Armed Forces serve. It ensures that the same basic rights and procedures apply to all members of the Armed Forces accused of misconduct. It fits the context in which the men and women of the Royal Navy, the Royal Marines, the Army and RAF train and work together. However, let us not forget the civilians in this equation, because in certain circumstances while overseas they are subject to service discipline too. The service justice system underpins the maintenance of discipline through the chain of command so fundamental to the operational effectiveness of our Armed Forces and it works very well.

I said I would say a bit more about what would happen if the 2006 Act were to expire. I know that the noble Lords, Lord Rosser and Lord Tunnicliffe, have a particular interest in this and I am grateful to them for giving me prior notice. The 2006 Act provides nearly all the provisions for the existence of a system for the Armed Forces of command, discipline and justice, as well as a large number of other important provisions such as those for their enlistment, pay and current system for the redress of complaints. As noble and gallant Lords will know, the obligation of members of the Armed Forces is essentially a duty to obey lawful orders. They have no contracts of employment and so no duties as employees.

Without the 2006 Act, commanding officers and the court martial would have no powers of punishment for disciplinary or indeed criminal misconduct. It is true that members of the Armed Forces would still owe a duty of allegiance to Her Majesty but Parliament would have removed the power of enforcement. Discipline, in every sense, is fundamental to the existence of our Armed Forces and to their success. That is why we need to continue this legislation.

Earlier I mentioned the Armed Forces Act 2011. That Act was much smaller in scale than that of 2006. It provided for the continuation of the 2006 Act for another five years and made changes to the Act to keep it up to date with the needs of the services. There will need to be another Armed Forces Act in 2016. However, the 2006 Act is doing a good job. It serves the Armed Forces well, and they deserve nothing less. In turn, the Armed Forces continue to serve us well.

[Lord Rosser (Lab)]

My Lords, I thank the Minister for her explanation of the content and purpose of this order, to which we are asked to agree each year and which we again fully support.

As the Minister said, my noble friend Lord Tunnicliffe asked the department exactly what the effect would be if this draft continuation order for the Armed Forces Act 2006 was not approved, since neither he nor I was entirely clear about the answer to that question. My noble friend received a very helpful reply. In thanking Mr Morrison, who had sent the reply, he expressed the view that the Explanatory Memorandum had been useless in regard to the question he had asked—unlike the reply, which certainly did not lack clarity. The next time this order is required, the department might wish to consider whether the Explanatory Memorandum could not also contain at least some of the content of Mr Morrison’s reply.

I appreciate that what I am going to say is largely repetition of much of what the Minister has said, but if it places on record for a second time the explanation we have had from the Ministry of Defence that will not be a bad thing. The draft order, which I am sure will be agreed, extends the life of the Armed Forces Act 2006 from 2 November 2014 to 2 November 2015. As the Minister said, if the appropriate Order in Council is not made by 2 November this year the Armed Forces Act 2006 will automatically expire. That would have consequences, not least that it would bring to an end the powers and provisions to maintain the Armed Forces as disciplined bodies, which would mean, among other things, that the duty of members of the Armed Forces to obey lawful commands, and the powers and procedures under which that duty is enforced, would no longer have effect. As the Minister said, commanding officers and the court martial would have no powers of punishment for disciplinary or, indeed, for criminal misconduct.

The response that my noble friend Lord Tunnicliffe received went on to say that while members of the Armed Forces would still owe a duty of allegiance to Her Majesty, Parliament would have removed the powers of enforcement, which obviously is of considerable significance, as the obligation of members of the Armed Forces is a duty to obey lawful orders. As the Minister said, they have no duties as employees since they have no contracts of employment.

The response from the department concluded by saying that the requirement for renewal of the 2006 Act is based on the assertion in the Bill of Rights 1688 that the Army—and now that includes the Navy and the Air Force—may not be maintained within the United Kingdom without the consent of Parliament, and that Parliament’s ability to maintain that constitutional position depends partly on its powers of command and discipline. Until the mid-1950s an Act of Parliament was required annually for renewal of the services’ system of command and discipline; since then an annual Order in Council has been required, with a renewing Act of Parliament every five years.

The debate on this order provides a legitimate opportunity to talk about many matters relating to our Armed Forces. However, we have a general debate on the Armed Forces next Monday, as well as Second Reading of the Armed Forces (Service Complaints and Financial Assistance) Bill. I do not wish to try to use this afternoon as a trial run for that debate even in the light of last week’s worrying report on Army 2020 from the National Audit Office.

I therefore simply conclude by saying that, while we will have a general debate next week, concerns have been expressed in the past by a number of Members of this House that debates on our Armed Forces and defence generally are, at times, a bit few and far between. Bearing in mind the significance of the order we are debating today, which relates to the Bill of Rights 1688 and the consent required of Parliament to maintain our Armed Forces, perhaps consideration should be given to using approval in the future of this order as the opportunity for a scheduled set-piece defence debate. I reiterate our support for the order.

[Baroness Jolly]

I am grateful for the support that noble Lords have given to the continuation order. Parliament’s ability to maintain the constitutional position that the Armed Forces may not be maintained without the consent of Parliament depends partly on its powers over expenditure and particularly by the requirement for annual renewal of its powers of command and discipline. I thank the noble Lord for his suggestion of using this as a set-piece debate in years to come. That clearly is not in my gift but I will pass the request to those who make the decisions on these matters. I will further study Hansard to check whether any areas are uncovered by my response.