The Armed Forces Bill 2019 - 2021

The Armed Forces Bill (Bill 244) was introduced in the House of Commons on 26 January 2021. The Bill will have Second Reading on 8 February 2021.

The primary purpose of the Bill is to renew the Armed Forces Act 2006 (itself renewed by the Armed Forces Acts of 2011 and 2016). The Armed Forces Act 2006 provides the legal basis for the existence of the Armed Forces as disciplined bodies. Without renewal, the 2006 Act will expire at the end of 2021.

The Bill amends the service justice system, further incorporates the Armed Forces Covenant into law and creates a new Service Police Complaints Commissioner.

The purpose of the Bill

Parliamentary consent for the raising and keeping of a Standing Army during peacetime dates back to the 1688 Bill of Rights. In modern times that consent is given through the presentation of an Armed Forces Bill every five years.

The purpose of the Armed Forces Act 2006 is to provide the legal basis for the armed forces and the system of military law which exists in the UK. It sets out the Service justice system that underpins the maintenance of discipline throughout the chain of command. Without the Act, commanding officers would have no powers of punishment for either disciplinary or criminal misconduct – there would be no means to enforce personnel to obey orders.

In the past the Act has also been used to introduce any new measures relating to the armed forces that fall outside the Act’s traditional remit of service discipline.

What does the Bill do? Extends the Armed Forces Act 2006

The Bill makes provision to continue the 2006 Act for a further period of five years, ending no later than 2026.

The 2006 Act will expire on 11 May 2021. The Government has laid a draft Order in Council to extend the 2006 Act until 31 December 2021. The Motion to approve the draft Armed Forces Act (Continuation) Order 2021 is scheduled to be taken immediately following Second Reading of the Armed Forces Bill on 8 February 2021. The 2006 Act prohibits any further extension beyond the end of December 2021.

Amends the service justice system

The Bill amends the service justice system.

The service justice system provides a legal framework that ensures Service personnel are subject to a single disciplinary code that applies wherever they are serving. An alleged offence by be investigated and dealt with summarily, by a Commanding Officer, or by one of the Service Police forces (each force has their own) and prosecuted by the Service Prosecuting Authority (headed by the Director of Service Prosecutions) at Court Martial, which is equivalent to the Crown Court. These are presided over by Judge Advocates, led by the Judge Advocate General.

The Government commissioned an independent review of the service justice system in 2017 to inform the Bill. The Bill enacts several of the recommendations of the review (led by HH Shaun Lyons), particularly in regard to Court Martial and related service courts.

However, the Bill does not bring in one of the review’s main recommendations, regarding jurisdiction.

Currently when an individual subject to service law commits an offence in the United Kingdom, they may be tried either in the service justice system or the civilian criminal justice system. Some organisations, such as Liberty and the Centre for Military Justice, believe jurisdiction for the most serious offences, such as rape, manslaughter and murder, should lie solely with the criminal justice system. Lyons came to the same conclusion in his review and suggested such cases should only be prosecuted at Court Martial with the consent of the Attorney General.

The Defence Secretary rejected this recommendation and the Bill reflects his intent to clarify the guidance on jurisdiction. The Bill requires the Director of Service Prosecutions to agree new Protocols with their counterparts in Scotland, Wales and Northern Ireland to clarify matters of jurisdiction.

A new Service Police Complaints Commissioner

The Bill creates a new independent body to oversee complaints about the Service Police. The Ministry of Defence says the Service Police Complaints Commissioner will mirror the role of the Independent Office of Police Conduct in providing independent oversight of the Service Police forces.

A legal duty to have due regard to the principles of the Armed Forces Covenant

The Armed Forces Act 2011 enshrined the principles of the Covenant in law. These are:

(a) the unique obligations of, and sacrifices made by, the armed forces;

(b) the principle that it is desirable to remove disadvantages arising for service people from membership, or former membership, of the armed forces; and

(c) the principle that special provision for service people may be justified by the effects on such people of membership, or former membership, of the armed forces.

The Covenant does not create legally enforceable rights for service or former service personnel.

The Government pledged to further incorporate the Covenant into law in the Queen’s Speech 2019. The Bill requires specified public bodies to have due regard to the principles of the Covenant in the areas of housing, education and healthcare (these areas are already identified in the 2006 Act).

Other measures

• The Bill allows for flexible working for Reserve personnel, allowing Reservists the opportunity to serve on a full- or part-time basis
• The Bill makes changes to sentencing and rehabilitation
• The Bill extends posthumous pardons for those convicted of abolished service offences
• The Armed Forces Act 2006 does not apply to Gibraltar. The Bill allows for a British overseas territory (i.e. Gibraltar) to bring the Royal Gibraltar Regiment into the UK’s service justice system.
• The Bill aligns the time limits for war pension appeals in Scotland and Northern Ireland with those in England and Wales

Parliamentary procedure: An Armed Forces Bill Select Committee

Unlike the majority of Government Bills, the Armed Forces Bill has traditionally been committed to a specially convened ad hoc Select Committee after Second Reading, which sits only for the duration of the Bill. The committee is able to take evidence, make visits, conduct line-by-line scrutiny, amend the Bill and submit a Special Report on their findings. In 2011 the Committee and the then Government agreed about the benefits of continuing this convention.

Reaction

John Healey, the Shadow Defence Secretary, has described the Bill as a "missed opportunity":

It does not put the Armed Forces Covenant properly into law to ensure Forces personnel and Veterans suffer no disadvantage in access to services, nor will it put right the long-term failings in the military justice system.

How does the Bill apply to UK nations?

The Bill extends to the whole of the United Kingdom with some exceptions. Some parts of the Bill (predominantly relating to Jurisdiction and the Armed Forces Covenant) apply in policy areas that are devolved matters and therefore some parts of the Bill apply only to England and Wales, to Scotland and to Northern Ireland. These are discussed in the paper.

Further reading

The following papers provide further background on some of the most prominent issues addressed in the Bill.

The review of the Service Justice System CBP9118, 20 January 2021

This paper explores the context for the review and discusses some of the review’s main recommendations, relating to: jurisdiction, how sexual offences and domestic abuse are dealt with in the system, collection and recording of data, Court Martial composition and the support given to victims. A separate paper, the Service Police review (CBP8953, June 2020) discusses the aspects of the review that focus on the service police.

The Armed Forces Covenant and status in law, CBP9072, 8 December 2020

The Government said it will use the Armed Forces Bill to further incorporate the Armed Forces Covenant into law. This paper explains what the Covenant is, its current status in law and the Government’s proposals.

Support for UK Veterans, CBP7693, 5 November 2020

This paper outlines the support available to Armed Forces Veterans in Great Britain and Northern Ireland. Of particular relevance to the Armed Forces Bill is the sections which discuss current access to housing and healthcare.

Police complaints and discipline, SN02056, 4 September 2020. This paper explains how civilian police forces and the Independent Office of Police Conduct (IOPC) operates.

Previous Armed Forces Bills: Library papers on previous Armed Forces Acts are available on the Library website.