What is the Armed Forces Act?

The Armed Forces Act 2006 is the primary legislation governing the armed forces. 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, meaning there would be no means to ensure personnel obey orders.

The current Armed Forces Act 2021, which renewed the 2006 act, will expire at the end of 2026. A new armed forces bill is required every five years to ensure the 2006 act remains in force. Between each five-yearly act, annual renewal is by an order in council (also approved by Parliament).

Parliament’s role in giving consent

One of Parliament’s roles is to give its consent to the raising and keeping of standing army during peacetime; this requirement is set out in the 1688-89 Bill of Rights, one of the great historic documents that regulate the relations between the Crown and the people.

The Bill of Rights sought to limit the power of the Crown by preventing monarchs from trying to change laws, raise taxes or maintain an army without Parliament’s consent: “By raising and keeping a Standing Army within this Kingdome in time of Peace without Consent of Parlyament and Quartering Soldiers contrary to Law.”

A former Defence Minister, Baroness Goldie, said the annual consideration of the 2006 act “reflects the constitutional requirement under the Bill of Rights that the Armed Forces may not be maintained without the consent of this Parliament.”

Evolution of the armed forces act

Since the 1950s Parliament’s consent is given through the presentation of an armed forces bill every five years and an annual order in council, approved by affirmative resolution in both Houses, confirming the extension of the act for a period of one year in each of the intervening years.

This five yearly requirement dates back to the 1955 Army and Air Force Acts and, since 1971, the 1957 Naval Discipline Act, which were subject to renewal by primary legislation every five years. The Armed Forces Act 1991, for example, continued the 1955 Acts and the 1957 Act.

Consolidation into the Armed Forces Act 2006

In 2005 the government decided to overhaul the legislation relating to military and service discipline by consolidating and modernising all the previous Service Discipline Acts by replacing them with a single system of service law applicable to all service personnel wherever they are serving in the world. This became the Armed Forces Act 2006 and repealed the previous service specific acts.

Subsequent armed forces acts amend the 2006 act. There have been three: in 2011, 2016 and 2021.

Each act expires after five years

Section 382 of the 2006 Act (as amended by the 2021 act) provides that the act will expire at the end of one year beginning with the day on which the latest armed forces act was passed, unless continued in force by an order in council.

The order in council takes the form of secondary legislation in an annual Armed Forces Act (Continuation) Order.

The order is subject to the draft affirmative procedure, meaning both Houses must approve it before it can come into force.

Successive orders in council may not provide for the continuation of the legislation beyond the five-year timeframe, when new primary legislation must then be presented.

Parliamentary procedure: a dedicated 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. The committee does not have to submit a report; the 2006 and 2011 committees submitted reports but the 2016 committee did not.

Duration of the Armed Forces Act 2021

The current act is the Armed Forces Act 2021. It will expire at the end of 2026.

What happens if the legislation does not pass?

Defence Secretary, Dr Liam Fox, said in 2011 that one of the act’s most important functions “is providing the legal basis for the armed forces to continue to exist.”

Members of the armed forces have no contract of employment. Instead, they owe a duty of allegiance to His Majesty, and that obligation is described by the Ministry of Defence as essentially a duty to obey lawful orders. Without the Act, commanding officers would have no powers of punishment for either disciplinary or criminal misconduct – there would be no means to ensure personnel obey orders.

In 2023, Defence Minister Baroness Goldie outlined the consequences for the armed forces during the passage of an order in council:

If the Order in Council is not made by the end of 14 December 2023, the Armed Forces Act 2006 will automatically expire, in effect ending the powers and provisions to maintain our Armed Forces as disciplined bodies

[...]

Therefore, the continuation of this Act is essential for the maintenance of discipline wheresoever in the world servicepersons do serve.

Other measures

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:

• The 2011 act enshrined the Armed Forces Covenant into law.
• The 2016 act extended to Ministry of Defence fire-fighters’ statutory powers to act in an emergency to protect life or property, in line with those available to civilian fire and rescue authorities.
• The 2021 act created a new Service Police Commissioner, an independent body to oversee complaints about the Service Police.
• The 2021 act introduced a new requirement for some public bodies, including the NHS and local authorities, to pay due regard to the principles of the Armed Forces Covenant when carrying out specific public functions in the areas of housing, healthcare and education.

The 2006 act can be amended by other primary legislation. For example, although the 2006 act created the role of the Service Complaints Commissioner, the role was later converted to an Ombudsman by the Armed Forces (Service Complaints and Financial Assistance) Act 2015, which amended the 2006 act.

Further reading

The Commons and Lords Libraries produce briefings on the armed forces bill ahead of second reading in their respective houses. These briefings can be found on the Library’s website or on the bill page under publications.