Armed Forces Act (Continuation) Order 2020

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Armed Forces Act (Continuation) Order 2020.

My Lords, we have before us a small, though crucial, piece of parliamentary business to conduct: our annual consideration of the legislation governing the Armed Forces—the Armed Forces Act 2006. Before I turn directly to the matter of the annual continuation of the Armed Forces Act, let us not forget that our Armed Forces are without doubt one of this country’s foremost and most precious institutions, being held in the highest regard throughout the world as a benchmark of military excellence that other nations aspire to. Let us never forget, either, the men and women of the Armed Forces who serve and have served us so well, whether at home or further afield.

This nation owes much to our Armed Forces and the admirable qualities they espouse: bravery, discipline, professionalism, unflinching and steadfast loyalty to duty, and a strong moral compass to do all that we ask of them. These noble qualities and adherence to duty are all too frequently tested in the most challenging and varied of environments and circumstances. Therefore, our service men and women deserve our respect for the manner in which they continue to maintain such high standards and professionalism. We owe a huge debt of gratitude to our Armed Forces, who perform exceptional feats to protect this country in incredibly difficult circumstances. To support them, we shall shortly bring forward legislation to deal with vexatious claims. We will also further strengthen the basis of the Armed Forces covenant, because we are absolutely committed to supporting all in our Armed Forces community, but today we busy ourselves with the continuation of the Armed Forces themselves.

Therefore, the draft order we are considering is to continue in force the Armed Forces Act 2006 for a further year, until the end of 11 May 2021. As I shall explain, this reflects the constitutional requirement under the Bill of Rights of 1688 that a standing army, and by extension now the Royal Navy and the Royal Air Force, may not be maintained without the consent of Parliament. Let us not forget that the Armed Forces cannot exist without the annual consent of Parliament. Our consent is an opportunity for us in this Committee to record our thanks by permitting the Armed Forces to continue for another year. As I have indicated, yearly renewal is rooted in the 1688 Bill of Rights. This historical context forms the basis for why the legislation that provides for the Armed Forces to exist as disciplined bodies is renewed by Parliament every year.

None the less, it is important that I explain the legislation that governs the renewal. Every five years, renewal is by Act of Parliament in an Armed Forces Act. The most recent was in 2016. There must be another before the end of 2021. Between each five-yearly Act, annual renewal is by Order in Council. The draft order that we are considering today is such an order.

The Armed Forces Act 2016 provides for the continuation in force of the Armed Forces Act 2006 until the end of 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 this Order in Council before the end of 11 May 2020, it will automatically expire. If the 2006 Act expires, the legislation that governs the Armed Forces and the provisions necessary for their maintenance as disciplined bodies would cease to exist. This would have serious repercussions because the 2006 Act provides nearly all the provisions for the existence of a system of command, justice and, above all, discipline for the Armed Forces. It creates offences and provides for the investigation of alleged offences, for 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 which are peculiar to service, such as misconduct towards a superior officer and disobedience to lawful commands. If the 2006 Act were to expire, 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—mayhem. In addition, 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. That would be mayhem with impunity. Members of the Armed Forces would still owe allegiance to Her Majesty, but Parliament would have removed the power of enforcement, as, after all, service personnel do not have contracts of employment and so have no duties as employees. Their obligation is essentially a duty to obey lawful commands. The 2006 Act also provides for other important matters in relation to the Armed Forces, such as for their enlistment, pay and redress of complaints.

The continuation of the Armed Forces Act 2006 is essential for the maintenance of discipline wherever service personnel are serving in the world. Discipline in every sense is fundamental and underpins the existence of our Armed Forces as well as their success, whether that is in supporting emergency services and local communities at home, as demonstrated by the recent flooding in Yorkshire and other parts of the country; in protecting Britain’s fishing fleet and industry, her waters as well as her shores; in actively safeguarding the world’s main waterways and escorting ships to deter the scourge of modern piracy; in playing their part to counter terrorism or combat drug smuggling and people trafficking; in distributing vital humanitarian aid; in continuing the war on terror by assisting and building capacity with partner nations to defeat the likes of Daesh in Iraq and Syria, or Boko Haram in Nigeria; in maintaining our presence in the Baltic and northern Europe to strengthen Euro-Atlantic security; or in monitoring our sovereign airspace to identify any threatening presence.

In short, 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. I hope that noble Lords will support the draft continuation order, and I beg to move.

My Lords, I support this renewal of the Armed Forces Act. In previous debates on renewing the Act, I have taken the opportunity to raise the thorny issue of combat immunity and the failure of successive Administrations to provide clear statutory authority and legal guidance on how difficulties that arise are resolved and on how to avoid difficulties in future conflicts.

I and others have long forecast that such difficulties would arise from the incompatibility between the laws of armed conflict and human rights legislation. The ongoing ways in which human rights issues affecting the Armed Forces have been adjudicated have only added to the problem. It took a considerable time, but the difficulties have been acknowledged by Governments. A variety of promises and even some tentative solutions have been aired, but there seem to be insoluble stumbling blocks. Progress has stalled, although I was interested to hear what the Minister has just said.

There is talk of providing for possible combat immunity if appropriate when conflict starts, but surely that is like a sticking plaster. It might cover the wound, but it will not stop the injury or a festering sore. Surely, we have seen enough examples of the problems that have arisen, whether in the course and aftermath of armed combat and military offensives or in the field of counterterrorism, as in Northern Ireland and Operation Banner there. We must demand resolution. Interestingly, a temporary fix to the Northern Ireland issue involving the Attorney-General was mooted in a weekend newspaper. What do the Government have in mind or was that just flying a kite?

The wider resolution should be to have pre-prepared statutory arrangements considered, thought out and enacted in peacetime so as to be ready to be applied immediately as necessary in conflict. Successive Defence Secretaries have expressed concern, along with their determination to put this right, so I am delighted to hear that a new Bill addressing the issue is on the stocks. Maybe the Minister will be able to give an update, or if not now, by a letter in the Library.

My Lords, I welcome this statutory instrument which, as the Minister has pointed out, is a short but crucial piece of legislation. She has rightly highlighted the importance of our Armed Forces and the crucial role they play both in the United Kingdom and abroad, highlighted by their response to flooding, piracy, terrorism and challenges to fisheries. I realise that I might be going slightly beyond the remit of the legislation, but if we did not have any Armed Forces, they would not be able to do what I am about to ask. Might she be able to say a little about what the Armed Forces might be expected to do in the coming months and years?

We are now being asked to ensure that the Armed Forces can continue for a year. That is clearly important, but this is a year when we may, for example, see Parliament being prorogued. My one question is: given that the Minister said that the Armed Forces would essentially cease to exist if Parliament did not authorise their continuation, what would happen in the event that Parliament were prorogued at a time when such a statutory instrument was needed? Clearly, at the moment we are sitting and able to give our views, but this is an important issue for the longer term. I would be really interested to know to what extent the Government are assuming that the Armed Forces may be deployed domestically in the coming weeks and months. What provisions are in place for that?

Further, what do the Government have in mind for the integrated security and defence review? We were told that it was to take place ahead of the comprehensive spending review but that was all on the assumption that it was business as usual. However, the current situation is far from business as usual.

The Prime Minister has just announced that we should be suspending social contact, and, as far as possible, working from home. It is difficult to see how the Grand Committee could work from home. It is even more difficult to see how most of the Armed Forces could work from home. Obviously, civil servants and Ministers could work virtually when they are thinking about the integrated security review. Is that the plan or is there a possibility that the longer-term thinking about security and defence could be deferred so that Ministers and civil servants can give sufficient thought to what we might require? That is because what we might have expected to be the security challenges if we had been heading towards a review on 30 November 2019 will look quite different on 31 March this year. Are the Government thinking about any alternatives? However, we are obviously very supportive of this statutory instrument to make sure that the Armed Forces can continue at least for the next year.

My Lords, I too thank the Minister for introducing this continuation order. I think it is about the sixth or eighth time I have dealt with something like this order from these Benches. We tend to reflect on the Bill of Rights, and so on and so forth, and take a general view of the Armed Forces and how they are faring. But the order allows for the continuation of the Armed Forces Act 2006 and the service justice system, which I want to comment on in particular.

However, first I will say a few words about how the Armed Forces are working now. I lay no criticism at the feet of the men and women of the Armed Forces, and I join the Minister in praising them for what they do. My criticisms are, of course, about what the Government have done.

The Armed Forces represent some of this country’s best of the best. Across the world, they work hard to liberate and keep civilians safe from terrorist organisations, serve on peacekeeping missions, and step in to provide humanitarian relief in the wake of hurricanes and other disasters. Therefore, Labour supports the Armed Forces Act (Continuation) Order. But we do not support the way the Government have been treating personnel and the recruitment process or providing housing to Armed Forces families over the last 10 years.

There has been an alarming downward trend in the number of personnel in the Armed Forces. In 2010, there were 102,000 regulars in the Army, 40,000 in the RAF and 35,500 in the Royal Navy. They are all substantially smaller now. The Army and the RAF have been cut by 25%, and the Navy is down nearly 20%. The trajectory is quite worrying: every single service has fallen over the last 10 years. It is no surprise that the Government have removed the 82,000 Regular Army personnel commitment from their manifesto. Will the integrated review set personnel targets like the 2015 SDSR?

The steady decline in satisfaction with service life is also a significant worry. The proportion of all personnel reporting satisfaction with service life in general was 60% in 2010. In 2019, it had fallen to 46%. Will the Minister set out what plans they have to improve morale and retention?

Today’s order renews the Armed Forces Act. This, in turn, is achieved through the renewal of the service justice system. The service justice system has been the subject of a review for several years—indeed, I would not have known about this if I had not researched it for this debate. The review is in three parts; the last part was delivered to the MoD in March 2019 and responded to in an MoD statement dated 27 February 2020. I shall quote part of that statement:

“The Service Justice System (SJS) review was carried out by HH Shaun Lyons, a retired senior Crown Court judge, who was supported by the former Chief Constable for Merseyside, Sir Jon Murphy. The review submitted 3 reports, part 1 on the need for the SJS and an overview of the system in March 2018 and a separate report on Service Policing, followed by part 2 on how the system can be improved in March 2019.

The Ministry of Defence welcomes the report from HH Lyons following his review of the SJS and is very grateful to him for his thorough and detailed examination of the SJS.”

Later, the statement says, rather comfortably:

“The MoD welcomes HH Lyons’ unequivocal endorsement of the continuing need for the SJS as the critical facilitator for discipline on operations which is key to operational effectiveness. The SJS supports and regulates disciplinary behaviour through the service offences set out in the Armed Forces Act 2006 and ensures wider criminal wrongdoing is dealt with.

The Review also found that the SJS was fair and the MOD agrees that the measures identified by the Review should be considered further to make the system more aligned with current practice in the civilian justice system.”

However, further on the response states:

“The MOD believes that the SJS is a system capable of dealing with the most serious offences and should be able to continue to do so. It would not be appropriate to limit the jurisdiction of the Court Martial. Cases should be investigated and tried in the appropriate jurisdiction, civil or military, and the current legislation allows for this.”

That is in direct contradiction to the report—at least, that is how I read it. Recommendation 1, in part 1 of the report, states:

“The Court Martial jurisdiction should no longer include murder, manslaughter and rape when these offences are committed in the UK, except when the consent of the Attorney General is given.”

Recommendation 23, in part 2, states:

“Section 2 Sexual Offences Act 2003 (SOA) offences join Murder, Manslaughter and Rape as being cases that are tried in the CJS”

—the civil justice system—

“when they are committed within the UK. Section 3 3 SOA offences should continue to be dealt with in the SJS.”

These offences carry very harsh, serious potential sentences. They are offences that, as I read out from the recommendation, are committed in the United Kingdom. We all believe that the civil justice system is the gold standard for trying serious cases. These cases are essentially civil crimes. Yes, all those civil crimes are put into the Armed Forces Act—but they are essentially civil crimes, and it is surely right to follow the recommendation of a former judge and a former chief constable. I would like the Minister to set out in some detail why this recommendation has been brushed aside.

Recommendation 4, in part 1, states:

“Court Martial Boards should consist of six lay members; verdicts should reach findings by unanimity or a majority of no less than 5:1; if a member is lost and the Board drops to five then unanimity is required; Boards should include OR5 Ranks (Chief Petty Officers and equivalent); in general discipline matters a Board need not be of single service composition.”

Further recommendations are found in part 2. Recommendation 24 says:

“The qualified majority of five to one should be dealt with in a direction to the Board similar to that currently used for a simple majority. The Crown Court practice of two directions to the jury; first a unanimity direction and then a majority direction should not be followed.”

Recommendation 25 is that:

“The Court Martial sits with both three-member and six-member boards and that the differentiation between the two levels of board should be on the basis of the sentencing powers of the boards. The three-member board should be limited to trying those cases where no defendant could be sentenced to more than two years imprisonment”.

The response in the February statement is not exactly dismissive, but I will read it out and Members can decide for themselves:

“We are … considering the recommendations made on changes to the size and ranks available for Court Martial Boards and the move from a simple majority to the use of qualified majority verdicts.”

The MoD has had nearly a year to consider these reports. Surely, such a simple requirement could have been determined by now and published reassuringly in this statement. The present situation is that if a serious case goes in front of a court martial, somebody can be sentenced to life imprisonment on the basis of a simple majority. That cannot be compatible with the standards of justice we expect in this country. In the year it has had these reports, why has the MoD not determined that this should be an objective? As the report points out, it could be done in an administrative order.

My final point is one I have raised before and not really got a satisfactory answer to. Where is the legal protection in the service justice system for a soldier who kills an enemy? It seems that that is an absolutely simple thing that, as a soldier, you would expect to be told: there is a law of the land that if you kill an enemy, you are protected in law. You almost certainly are, because the Armed Forces have killed many enemies over the years, but that is a common-law basis. It is relatively rare that anybody is ordered to kill somebody—they normally lay down fire, drop bombs or whatever—but snipers have this particular duty. How can that individual be confident that he will not subsequently be prosecuted for murder, especially in view of so many actions these days taking place where war has not been declared? In particular, how can a member of the Special Forces who kills an enemy be sure that he will not subsequently be prosecuted?

My Lords, I thank all noble Lords for their contributions, which have been very helpful. To some this might seem to be a routine and almost ritual debate, but underneath it are very important issues, as all contributors have indicated.

The points raised by the noble and gallant Lord, Lord Craig of Radley, were interestingly echoed by the noble Lord, Lord Tunnicliffe, in his final point. These are very important issues. Your Lordships will be aware that the Government have been concerned about the position in which members of our Armed Forces find themselves placed when in a situation of conflict. They take action that they deem to be proportionate and necessary, yet they have not been sure that they can return home without recriminations following, which might be either criminal law prosecution or civil law action for damages. The Government take that backdrop very seriously because when we ask men and women to undertake service in the name of the country, and frankly to expose themselves to situations and do things that many of us are not required to do, we are asking a very great deal of them. The least we can do is try to reassure our service men and women that when they act in the interest and under the orders of our national direction, we value what they are doing and we wish to try to protect them.

Your Lordships will be aware that last year we carried out an extensive consultation on overseas operations focused on three proposed measures that the Government want to take: a statutory presumption against prosecution; a proposal to consider the creation of a new partial defence to murder; and a proposal to restrict the court’s discretion to extend the normal time limit for bringing civil claims for personal injury and/or death in relation to historical events outside the United Kingdom. I am pleased to inform your Lordships that the Government will very shortly introduce a legislative package to ensure that our service personnel and veterans have access to the legal protections that they deserve. That legislation will build on the consultation held last summer on proposed legal protections and measures for our Armed Forces personnel and veterans who have served in operations outside the United Kingdom.

Just to be absolutely clear in my own mind, are we talking about legislation? The noble Baroness has talked about giving the Armed Forces assurances, but I think she just said that there will be legislation. I want to make sure that we will legislate and that this is not just about assurance.

I can reassure the noble and gallant Lord that, yes, I said that we will introduce a legislative package and that is what we will do. The legislation has been drafted and will imminently come before Parliament. As I say, I hope that that offers reassurance.

The noble Baroness, Lady Smith of Newnham, raised a number of very interesting points. She specifically asked what will happen if Parliament is prorogued when, for example, an SI might be needed to renew the operation of our Armed Forces. We are dealing with extraordinary circumstances, the extent and impact of which are probably not yet quantifiable. There is an assumption that Parliament will sit. There is a recognition that the parliamentary process, particularly in a time of crisis, is extremely important. I want to reassure her that every effort will be made to ensure that the parliamentary process can continue in one form or another. She is absolutely right to say that there are consequences to Parliament being prorogued which could be very grave, and therefore every effort will be made to ensure that, whatever legislation is required for essential purposes, some mechanism will be found to make sure that that is addressed.

The noble Baroness also asked about the current pressures on the MoD, particularly in relation to the Covid-19 pandemic. I assure her that arrangements are in place for Defence to provide support to civil authorities if requested. We are working hard to identify where we can best provide support. At this time, there are no immediate plans for any large-scale deployments of the military to assist with public services, but we do stand ready to assist if requested to by other government departments. It goes without saying that we will continue to maintain the delivery of our key operations and outputs, such as the continuous at-sea deterrent and overseas operations.

The noble Baroness also raised the matter of the integrated review and whether that might be subject to interruption or delay, because of the current situation. She will understand that the entire focus of the Government, in concert with all government departments and with the benefit of medical and scientific advisers, is on dealing with the current crisis in the country, and that has to be paramount. It is impossible to say whether it will impact on other aspects of government business. What we all understand is that we want and expect the focus of Government at this critical time to be on dealing with what is essentially a crisis for the country. That is what the Government are currently focusing on.

The noble Lord, Lord Tunnicliffe, raised a number of interesting points. He referred to the service justice review report. If I understood him correctly, he is concerned about the continuing jurisdiction of the court martial for certain crimes. He wondered if it would not be preferable to deal with these matters under the civil justice system. I wish to assure him on two counts. First, there is no evidence to suggest that defendants dealt with in the service justice system are not treated as well as they would be in the civil justice system. We recognise that there are areas in which we can do better. We are committed to making the service justice system more effective and efficient to provide a better service to those who use it, particularly victims and witnesses.

Can I address that point? These are not my conclusions. A High Court judge and a chief constable, working for the Government, have produced a report basically saying that it is not appropriate for these crimes to be tried by court martial because they are so serious. Surely if one is accused of murder, going in front of a civil court where the “beyond reasonable doubt” concept is reinforced by either a unanimous or significant majority jury decision is different from a military court where at the moment a guilty verdict in such a case could come about through a simple majority where one number is one greater than the other.

I was coming to the point that is of concern to the noble Lord on the issue of which system of prosecution is used. As we say in our response to the review, we will adopt the alternative approach identified in the review of assessing the prosecutors protocol and relevant supporting documents to ensure that they support the principle that the service justice system should deal only with those cases where there are good reasons for doing so. In other words, cases will ordinarily be tried in the civilian system unless there are good reasons why they should be tried in the service justice system. The main principle in deciding who has primacy is whether the offence has any civilian context, especially a civilian victim.

The other aspect of the review which the noble Lord raised was recommendation 4. He had a number of questions about that, such as the five-to-one qualified majority. He asked why the MoD has had this report for over a year and yet still has not come to a decision on these recommendations. Again, I reassure him that we have been working with our stakeholders on all aspects of the review. Some of the changes will require primary legislation, so we must wait for an appropriate opportunity to deal with them. We are considering these matters for the next Armed Forces Bill, which must be passed by Parliament before the end of next year. I hope that has gone some way towards reassuring the noble Lord that matters are under consideration.

The noble Lord also raised the issue of recruitment. My understanding is that the recent Army recruitment figures contain some rather encouraging information which suggests that there has been a marked increase in uptake on investigating the Army as a career. However, the noble Lord is right that getting the application figures up is only part of it; retention is another major issue which the Government are well aware of. Everything is being done to ensure that if applicants are successful and subsequently recruited, they will be given a career prospect which is conducive to their wanting to remain in the Army.

The noble Lord is absolutely correct about the very important matter of accommodation, which is connected to this. An attractive and affordable accommodation offer helps to deliver military capability and contributes to attracting and retaining service personnel. He may be aware that the MoD has developed the future accommodation model to improve choice about where, with whom and how service personnel choose to live, reflecting modern family life with entitlement based on need, not rank. We very much hope that this model, which is being piloted at HM Naval Base Clyde, Aldershot Garrison and RAF Wittering—the latter from 31 May—will provide productive examples of what works and what does not. I can reassure him that efforts are being made to look at providing accommodation suitable to modern living; he is quite right that we should give reasons to people who join the Armed Forces why they should stay.

Before the Minister continues, perhaps I may record my concern about her answers. The MoD commissioned a report using the best people available. As far as I can see, the recommendations of that report will not come before Parliament unless a particular recommendation suits the Government and they bring it forward for primary legislation. The failure to act on the recommendations, as far as I can see, will not come into the public domain unless I find some way of raising it in Parliament in the future.

I am sorry if I have failed to reassure the noble Lord. I have tried to cover the points he raised. I will certainly look at Hansard to see whether there is any more detailed information which I can provide for him. Any government review is always the subject of scrutiny by such vigilant observers as the noble Lord. It is always available to parliamentarians to look at what a review says and, where subsequent legislative proposals may not seem to reflect that, it is the right of parliamentarians to raise that with Government. I have tried to reassure him that the Armed Forces Bill will cover certain aspects of the matters he has raised, but I will look at Hansard and, if there are any areas where I can provide further information, I shall undertake to do so.

I am very grateful for the debate we have had. I have already moved the order and hope the Committee will agree that it should be passed.

Motion agreed.