My Lords, I beg to move that this Bill be now read a second time. It is a pleasure to be speaking to the Armed Forces Bill. Such an opportunity normally occurs only every five years and, as always, it is a significant occasion. Its significance can be traced back to the Bill of Rights in 1688, which declared:
“That the raising or keeping a standing army within the kingdom in time of peace, unless it be with the consent of Parliament, is against law”.
Since then, the legislation making the provision necessary for the Army to exist as a disciplined force and, more recently, the legislation for the Royal Navy and the Royal Air Force, has required annual renewal.
Since the 1950s, an Armed Forces Act has been required every five years to continue in force the legislation enabling the Armed Forces to be recruited and maintained as disciplined bodies. Those Acts have provided that, in each of the years between five-yearly Acts, an Order in Council is required to continue in force that legislation. That legislation is currently the Armed Forces Act 2006, which provides a system of command, discipline and justice for the Armed Forces. It covers matters such as the powers of commanding officers to punish disciplinary or criminal misconduct, the powers of the court martial, and the powers of the service police. The 2006 Act confers powers and sets out procedures to enforce the duty of members of the Armed Forces to obey lawful commands. Without this Armed Forces Bill, the Armed Forces Act 2006 could not continue in force beyond the end of this year. This Bill is a constitutional requirement. Each Government, in turn, have an Armed Forces Bill, not because their manifesto says so but because control over the system under which the Armed Forces are maintained resides not with the Executive but with Parliament.
When speaking about the need to renew the legislation for the Armed Forces, it is sometimes asked what would happen if that legislation was not renewed. The 2006 Act contains almost all the provisions for the existence of a system for the Armed Forces of command, discipline and justice—these I mentioned earlier. It also provides for other important things, such as provision for their enlistment, pay and their system for the redress of complaints. The central effect of expiry of the Armed Forces Act 2006 would be to end the powers and provisions to maintain the Armed Forces as disciplined bodies. Perhaps the most important example of this effect is that the duty of members of the Armed Forces to obey lawful commands, which is under Section 12 of the 2006 Act, 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 disciplinary or criminal misconduct. 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 duty as employees.
I mentioned earlier the assertion in the Bill of Rights 1688 that the Army—and by extension now the Royal Air Force and the Royal Navy—may not be maintained within the kingdom without the consent of Parliament. The requirement for renewal of the 2006 Act is based on that assertion. Failure to renew would call into question Parliament’s consent to the maintenance of our Armed Forces. This is why renewal of the Armed Forces Act 2006 is so important—and renewal is the primary purpose of this Bill.
This is a smaller Bill than the one five years ago which became the Armed Forces Act 2011 and considerably smaller than the Armed Forces Act 2006, which made significant changes, including establishing a single system of service law for all three services. The 2006 Act continues to work well and I pay tribute to the work of the then Government for this achievement.
The 2011 Act renewed the 2006 Act and, like most five-yearly Armed Forces Acts, it made a few other changes to the service justice system and defence more broadly. Its eye-catcher, of course, was the requirement to report on the Armed Forces covenant, which has made a huge difference to the lives of serving and ex-service personnel.
This is a modest Bill. The 2006 Act, as amended by the 2011 Act and the Armed Forces (Service Complaints and Financial Assistance) Act 2015, which provides for the Service Complaints Ombudsman, needs only a few small changes. This Bill tidies a few things up and keeps our legislation current so that it remains fit for purpose.
So what does the Bill do? I have mentioned renewal of the 2006 Act. That is covered by the first clause of the Bill. It provides for continuation of the 2006 Act for a year from the date on which this Bill receives Royal Assent. It also provides for renewal thereafter by Order in Council for up to a year at a time until the end of 2021.
Currently a commanding officer may require a member of the Armed Forces, or a civilian subject to service discipline, to co-operate with a preliminary test for alcohol or drugs only on suspicion of an offence. Clause 2 extends the circumstances in which a commanding officer may require co-operation with such a test. It provides for post-accident preliminary testing without the need for suspicion that the person tested may have committed an offence. The new powers to require co-operation with tests apply only after accidents involving aircraft or ships or after other serious accidents. The results of such tests can be used in support of any type of investigation arising from the accident. The powers are derived from, but not identical to, those in the Railways and Transport Safety Act 2003 under which civilians may be required to co-operate with tests for alcohol and drugs.
Clauses 3 to 5 relate to the investigation and charging of service offences under the Armed Forces Act 2006. The clauses make a number of changes to the provisions in Part 5 of the 2006 Act which deal with the process of deciding whether a person is to be charged with a service offence under that Act. The changes simplify
the process. The commanding officer rightly deals with 90% of cases in the service justice system and these provisions will not change that. Clause 3 is about simplifying the process for charging in some of the remaining 10% of cases which the commanding officer does not have power to hear, including offences such as perverting the course of justice and sexual assault. Currently, some cases which cannot be dealt with by the commanding officer must none the less be referred by the investigating service police to the commanding officer, and then from the commanding officer to the Director of Service Prosecutions for a decision on the charge and prosecution. Clause 3 provides instead for the service police to refer straight to the DSP any case where there is sufficient evidence to charge an offence with which the commanding officer cannot deal. It also deals with charging in linked cases—for example, separate offences that occurred during the same incident.
Clause 4 makes a minor, technical clarification to the procedure for the referral of linked cases from the commanding officer to the DSP. Clause 5 provides for the Director of Service Prosecutions to bring charges himself. Currently, where the director decides that a charge should be brought in a case, he cannot bring the charge directly but must direct the suspect’s commanding officer to bring the charge, who must then do so.
Clause 6 increases the range of sentencing options available to the court martial. Both civilian courts and the court martial can currently suspend sentences of imprisonment for up to 24 months. However, the service courts can suspend sentences of service detention for only 12 months. This clause gives the court martial the ability to suspend sentences of service detention for up to 24 months. Sentences of service detention are served at the Military Corrective Training Centre in Colchester. This would provide the court martial with another option when sentencing. In appropriate circumstances, suspended sentences can allow continued service alongside rehabilitation activities.
Clauses 7 to 12 deal with offenders assisting investigations. Clauses 7 and 8 allow the Director of Service Prosecutions, in return for assistance provided by a person to an investigation or prosecution, to enter into an agreement with the person, giving them immunity from prosecution or an undertaking that information will not be used against them in proceedings. Clauses 9 to 12 make provision with respect to reduced sentences for those who provide such assistance.
In the civilian criminal justice system, prosecutors such as the Director of Public Prosecutions have statutory powers to offer immunity from prosecution and restrictions on the use of evidence in return for assistance relating to offences. The Director of Service Prosecutions has no such power, yet in some cases the evidence of a witness or defendant could be crucial to a case, but fears about self-incrimination prevent that person coming forward. Clauses 7 to 12 would change that. The provisions closely follow those in the Serious Organised Crime and Police Act 2005 that apply to civilian prosecutors and courts.
Clause 13 and the Schedule to the Bill provide for the Armed Forces Act 2006 as it currently has effect in the UK to come into force in the Isle of Man and the British Overseas Territories, except Gibraltar. We are
consulting the Government of Gibraltar about extending the 2006 Act to that territory. I should make it clear that, as a matter of UK law, the 2006 Act applies to UK service personnel wherever in the world they serve. It will continue to do so. The Isle of Man and the British Overseas Territories other than Gibraltar are content for the 2006 Act to form part of the law of those jurisdictions. Discussions are ongoing with Gibraltar about whether it would be content for the 2006 Act to form part of its law. If it considers that that would be best, we propose to introduce an amendment as soon as possible to that effect.
Clause 14 reflects the Government’s commitment to the fair and equal treatment of LGBT Armed Forces personnel. It repeals two provisions regarding homosexuality in the Armed Forces, the existence of which is inconsistent with the department’s current policies and the Government’s equality and discrimination policies more generally. The clause amends Sections 146(4) and 147(3) of the Criminal Justice and Public Order Act 1994. Currently, these sections contain wording that provides that those sections do not prevent a homosexual act from being a ground for discharging a member of the Armed Forces. The clause removes that wording. When Sections 146 and 147 were enacted, it was government policy that homosexuality was incompatible with service in the Armed Forces. Accordingly, members of the Armed Forces who engaged in homosexual activity were administratively discharged from the Armed Forces. That policy was abandoned in January 2000. Since then, these provisions have had no practical effect. They are, therefore, redundant.
The Secretary of State may make regulations under Section 25 of the Social Security Act 1989 to give war pensions committees functions relating to war pensions and war pensioners, such as considering complaints made by pension recipients. The committees’ existing functions relate primarily to the war pensions scheme, which provides compensation for injury or death caused by service in the Armed Forces before 6 April 2005. Clause 15 amends Section 25, allowing committees to also be given functions relating to the scheme which provides compensation for injury or death caused by service in the Armed Forces on or after 6 April 2005. These days the war pensions committees are commonly known as veterans advisory and pensions committees.
Clauses 16 and 17 give Ministry of Defence firefighters statutory powers to act in an emergency to protect life or property. These are the same powers as those given to employees of local fire and rescue authorities under Section 44 of the Fire and Rescue Services Act 2004 and equivalent legislation in Scotland and Northern Ireland. Those powers include powers to enter premises by force if necessary, to close roads and to regulate traffic. Clause 16 also makes it an offence to obstruct an MoD firefighter who is acting in an emergency. Clause 17 gives MoD firefighters the same exemptions from provisions in certain Acts, such as rules on drivers’ hours, as employees of fire and rescue authorities.
The Defence Fire Risk Management organisation provides fire and rescue operational services and support across defence at airfields, specified domestic establishments and deployed locations in the UK and overseas, but it falls outside the ambit of the primary
legislation that governs local fire and rescue authorities in the UK. Clauses 16 and 17 make simple, sensible changes to give MoD firefighters the same protections in law as their civilian counterparts. The Defence Fire Risk Management Organisation has more than 2,000 personnel operating more than 70 fire stations. Its firefighters fall into one of three categories: defence fire and rescue service civilian firefighters employed by the MoD; RAF and Royal Navy service personnel; and firefighters employed by a defence contractor. These firefighters currently have no specific statutory powers to act in an emergency to prevent or deal with fires, to protect life or to preserve property. The changes made by Clauses 16 and 17 will enable defence firefighters to carry out their duties in the same way as firefighters employed by civilian fire and rescue authorities.
That is what the Bill is about. As I said earlier, it is modest but none the less important. The number of expert speakers we look forward to hearing from during this debate is a reflection of that, as is the prospect of no fewer than three maiden speeches, from my noble friends Lady Pidding and Lord Shinkwin and the noble Lord, Lord Murphy of Torfaen. I pay tribute to our Armed Forces. We ask a lot of our men and women, whether serving in far-flung places or supporting UK flood relief operations. We are immensely proud of their work, their courage and their dedication and we take pride in the first-class reputation of our Armed Forces. Their success is underpinned by a fair and modern service justice system. I believe that we share a common purpose to keep it that way.
I have mentioned that we may bring forward a government amendment in relation to Gibraltar. If we do—if Gibraltar considers it best that we provide for the 2006 Act and the Bill to extend there—I will ensure that noble Lords are given this in good time. I look forward to the detailed scrutiny we shall undoubtedly give the Bill in Committee, and commend it to the House.
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