Armed Forces Act 2011
|Long title||An Act to continue the Armed Forces Act 2006 (AFA 2006); to amend that Act and other enactments relating to the armed forces and the Ministry of Defence Police; to amend the Visiting Forces Act 1952; to enable judge advocates to sit in civilian courts; to repeal the Naval Medical Compassionate Fund Act 1915; and for connected purposes.|
|Royal Assent||3 Nov 2011|
|Related legislation||Armed Forces Act 2006|
|Status: Current legislation|
It is the latest in a series of Acts to provide a legislative framework for the UK Armed Forces. Apart from giving the armed forces the legal authority to exist for another five years, its major elements are establishing a requirement for the Secretary of State for Defence to make an annual report to Parliament on the implementation of the Armed Forces Covenant, some revisions to the Armed Forces Act 2006, and provisions covering the three service police forces and the Ministry of Defence Police.
- 1 Background
- 2 Long title
- 3 Territorial extent
- 4 Description
- 5 Parliamentary history
- 6 Further reading
- 7 References
Different components of what became the Armed Forces Act had different origins. There had been an existing requirement for an Armed Forces Act 'to provide the legal basis for the Armed Forces'. Under the 1688 Bill of Rights, the 'raising and keeping of a Standing Army during peacetime is against the law, unless it is with the consent of Parliament.' Given that authority for maintaining armed forces under the Armed Forces Act 2006 and its subsequent secondary legislation would run out on 8 November 2011, a new piece of Primary legislation was needed.
In the case of the 2011 Act in particular, an additional policy reason for legislation was the UK Government's previously stated commitment to put the military covenant into law: during a visit to the aircraft carrier HMS Ark Royal in June 2010, David Cameron, the Prime Minister, had said that:
It's time for us to rewrite the Military Covenant to make sure we are doing everything we can...Whether it's the schools you send your children to, whether it's the healthcare that you expect, whether it's the fact that there should be a decent military ward for anyone who gets injured. I want all these things refreshed and renewed and written down in a new Military Covenant that's written into the law of the land.'
This formalisation of the Covenant was described by the relevant Select Committee as being the most controversial provision within a Bill that was otherwise on a 'much smaller scale' than the AFA 2006.
The long title of an Act is of significance because it forms part of the Act, and is the 'first of the elements of an Act... that can be used to find the meaning of the Act, and generally its scope.' in future legal decisions. The long title of the Armed Forces Act is 'A Bill to continue the Armed Forces Act 2006; to amend that Act and other enactments relating to the armed forces and the Ministry of Defence Police; to amend the Visiting Forces Act 1952; to enable judge advocates to sit in civilian courts; to repeal the Naval Medical Compassionate Fund Act 1915; and for connected purposes.'
The Act covers every part of the UK. Its scope can be extended by an Order In Council to cover the Channel Islands, the Isle of Man and the British Overseas Territories. Notwithstanding that the Act has a limited territorial scope, its provision affecting members of the Armed Forces will apply to them wherever they are in the world.
The Act has nine parts:
This section is the renewal of the primary legislation (the Armed Forces Act 2006) for a further five years, through an annual Order in Council in both Houses of Parliament. It makes this change by creating a new section 382 in the AFA 2006, which allows for AFA 2006 to expire a year after the Armed Forces Act 2011 is passed, unless renewed by Order in Council approved by both Houses of Parliament. The new section does not allow the AFA to be extended in this way past the end of 2016.
This section makes provision for the Secretary of State to make an annual report on progress towards the 'rebuilding' of the military covenant. The fields of healthcare, education and housing are specifically mentioned, although 'such other fields as the Secretary of State may determine' may be included in the report.
This part contains provisions that relate to the independence and inspection of the service police forces, and to new arrangements for the management of members of the MOD Police. Although service police investigations were carried out independently of the chain of command of their respective services, there had been concern about the degree to which the 'service disciplinary system [was compliant with] the rights and freedoms of the Human Rights Act 1998'. In response to these concerns, sections 3-5 were intended to 'both highlight and safeguard' the independence of service investigations, by imposing an explicit duty on service provost marshals to 'ensure that investigations... were free from "improper interference".
Section 6 was designed to bring the handling of 'underperformance on the basis of efficiency and effectiveness' within the MDP onto a statutory basis (as was already the case with Home Office Police forces) onto a statutory basis, rather than within civil service administrative procedures, as had been the case.
Sections 7 and 8 conferred new powers on military judge advocates (JAs) to authorise entry and search of certain premises, and on the Secretary of State to make provide service police to special categories of material (for example bank records).
The AFA 2006 provided for military JAs to issue search warrants for 'relevant residential premises'. These powers were intended to mirror those provided to civilian magistrates in the Police and Criminal Evidence Act 1984 (PACE). However, the amendments to PACE in the Serious Organised Crime and Police Act 2005 meant that the provisions in AFA 2006 were narrower than those in PACE as it stood in 2006. Clause 7 extended the scope of the warrants that could be issued by JAs so that they once again were equivalent to those that could be issued by magistrates.
Section 8 extended section 86 of AFA 2006 to extend service police access to material (except that subject to legal privilege) on premises that were referred to in a search warrant as 'relevant residential premises'. Under this section, the JA could issue a "production order" for the material. This would have the effect of requiring 'the person believed to be in possession of the material to be produce it...or to give a Service policeman access to it.' Section 8 makes refusal to comply with a production order a possible contempt of court.
This part makes provision about the testing of service personnel for alcohol and drugs in specified circumstances. The purpose of including these sections was to allow armed forces personnel to be subject to same drug and alcohol testing regime as is set out in the Railways and Transport Safety Act 2003 without removing the military's exemption from that Act.
Section 9 amends section 20 of the Armed Forces Act 2006, by making the test of 'unfitnes for duty' have the meaning of the person's 'ability to carry out the duty in question is impaired.'. Section 10 creates an entirely new offence by inserting a new subsection (20A) into the AFA 2006. A person would be guilty pf this offence if a sample of their breath, blood or urine contained alcohol above a specified level, and when that person was, or might reasonably be expected, performing a 'prescribed duty'. The prescribed duties themselves would be defined by the Defence Council, and are intended to cover safety-critical tasks, where unfitness of a person performing them could result in 'death, serious injury to any person or property, or serious environmental harm'. Unlike section 9, drugs other than alcohol are not covered by this section.
Section 11 sets out the testing arrangements for a person suspected of an offence created under section 10.
This part relates to punishments and other court orders by making amendments to AFA 2006.
Section 12 makes amendments to reflect the introduction of the rank of lance corporal in the RAF Regiment. Under AFA 2006 (section 132) a commanding officer can only impose service detention as a punishment on the lowest rank of non-commissioned officer (NCO). In this context, the creation of the new NCO rank of lance-corporal would have created an anomaly, whereby the commander of RAF personnel would have had the power to detail corporals, but not the (lower) rank of lance-corporal, since at the point where AFA 2006 became law, the RAF did not have any lance-corporals. Section 12 was aimed at resolving this situation by redefining the lowest NCO rank in the RAF Regiment as a lance-corporal.
Section 13 repeals section 293 of AFA 2006, with the effect that when a NCO is given detention as part of a disciplinary process, he or she need not automatically be reduced to the lowest possible rank. This section also amends section 138 of AFA 2006, to allow a local commanding officer to combine reduction in rank with a custodial sentence. This section is not retrospective, and does not affect any reductions in rank that occurred before the repeal of section 293 of AFA 2006.
Section 15 amends provisions in the AFA 2006 and Reserve Forces Act 1996 to allow the maximum period of service detention that can be awarded by a court-martial, where the offence is failure to provide a blood, urine or breath sample for testing, to two years. Subsection 2 (b) of this section also increases the maximum punishment for offences under section 95 of the Reserve Forces Act from 6 months to 51 weeks. This is to align the maximum sentence for these offences with those of AFA 2006 offences, as amended by the Armed Forces Act 2006 (Transitional Provisions) Order 2009.
Section 16 creates 3 new sections of AFA 2006, relating to enforcement of financial penalties awarded by a court-martial. These are:
- New section 269A, which requires a court-martial to specify a period of imprisonment when awarding a fine, to which the fined person will be subject if the fine is not paid by the appropriate date.
- New section 369B allows the court-martial to specify an imprisonment period if a Service compensation order is not paid, if it us felt that the default term is insufficient.
- New section 269C allows orders made under sections 269A and 269B and applied to a Service parent or guardian of an offender, (as is permissible where the offender is under 18, is a civilian subject to service disciple and whose parent or guardian is subject to service law) to make an appeal against such an order at the Court Martial Appeal Court.
Section 17 creates a new administrative measure of "Service Sexual Offences Prevention Order" (Service SOPO) by amending seven sections of AFA 2006. Service SOPOS are different from, but are designed to mirror, SOPOs as enabled by the Sexual Offences Act 2003. That Act did not apply outside the UK, and therefore SOPOs created under it could not be used to protect members of Service families based outside the UK.
These sections make a number of changes to AFA 2006. They include changes relating to: where the Service Civilian Court (SCC) may sit; reduction in rank of service personnel; the process for redress of complaints brought by service personnel; and civilians subject to service jurisdiction.
Section 18 extended the remit of the SCC to the UK. The AFA 2006 set up this court to replace the Standing Civilian Court, but only provided for the new Court's powers to apply to anywhere outside the UK, Channel Islands and the Isle of Man. The effect of this section was that the SCC had the same geographical scope as the Court Martial and Summary Appeal Courts.
Section 19 deals with powers of local COs to reduce the rank or rate of an offender as a result of "administrative action", rather than through Service courts. In this context, "administrative action" is the system of measures to deal with to deal with failures of performance where the bringing of a charge for a disciplinary offence under AFA 2006 is inappropriate; these powers are similar to those of a civilian employer. The original Section 332 of AFA 2006 restricted reduction in rank or rate by a local CO to only one acting or substantive rank. Section 19 of AFA 2011 amends section 332, so as to allow a CO to reduce a warrant officer or NCO by more than one rank or rate, where this is deemed appropriate.
Section 20 amends section 335 of the AFA 2006, requiring that the Defence Council must determine the size of a Service Complaint Panel, subject to the requirements of section 336(2) and section 336(2). It also amends section 336 of the AFA 2006 so as to remove the requirement for at least one member of the Panel to be a senior officer, and for the Panel to include a specified number of independent members, and that certain functions will be carried out by those members. (Although those functions may be delegated.) Section 7 of this section also provides for the Secretary of State to require the Defence Council to delegate its functions in relation to 'any service complaint of a prescribed description', where a majority of the panel are independent, or they require certain functions to be carried out by independent members.
Section 21 concerns the definitions of the term 'prosecuting officers' as used in the AFA 2006. It amends 2 entries in section 365 of that Act, and replaces the word 'officers' with 'person'. The intention behind these amendments was to allow the Director of Service Prosecutions to appoint civilians, as well as military officers, to roles relating to the bringing of charges and proceedings.
Section 22 amends schedule 15 of AFA 2006, which defines the categories of civilians who are subject to service discipline, and therefore are subject to jurisdiction of Service courts. The amendments made to AFA 2006 by this section were intended to deal with what had been seen as an excessively broad jurisdiction of service courts. This section:
- With respect to Crown Servants working in support of the armed forces, narrows service court jurisdiction to apply only to the designated area in which they usually work, or where they are in another designated area, where they have gone there to work in support of the armed forces.
- Makes a similar change with respect to individuals employed outside the UK in a specified naval, military or air force organisation due to the UK's membership of that organisation e.g. NATO.
- Makes a similar change to members and employees of members of specified organisations concerned with support to the armed forces, such as the Soldiers, Sailors, Airmen and Families' Association SSAFA.
- Makes a similar change to an individual who resides or stays with an employee of a specified military organisation. The section narrows service jurisdiction in the case of such an individual to their being in the country in which they normally work, or in a country to which the person has travelled in order to work.
Section 23 deals with the fact that the Prisoners of War (Discipline) Regulations 1958, which were necessary to ensure the UK's compliance with the Geneva Convention Relative to the Treatment of Prisoners of War 1949 became out of date when the Army Act 1955, on which the 1958 Regulations were based, was repealed by AFA 2006. This section inserted a new section into the AFA 2006 which allowed a Royal Warrant to be isued that would ensure that UK law's compatibility with the 1949 Geneva Convention would continue. Specifically, the new regulations would extend Service courts' jurisdiction to prisoners of war.
Section 25 amends the Visiting Forces Act 1952. It allows the Secretary of State to transfer any liability for a tort under the provisions of the Visiting Forces Act to the UK MOD. The intention behind this measure is to avoid a sending state - and particularly the United States - under the Visiting Forces Act from being caught up in litigation proceedings conducted under UK procedures.
Section 26 gives effect to schedule 2.
Section 28 invokes schedule 3.
Section 29 invokes schedules 4 and 5.
Section 31 is concerned with commencement dates of the different parts of the Act, either by specifying the dates or conditions on which specific provisions will commence (e.g. sections 1, 30, 32 and 33) or by providing for the Secretary of State to issue a commencement order through secondary legislation.
These sections contain supplementary provisions; details on when each part of the Act 'commence' (come into effect), the extent to which the Act applies in the Channel Islands, the Isle of Man and British overseas territories, and the short title of the Act (how it will be usually referred to).
- Schedule 1 (invoked by section 14) combined the court martial sentencing powers in section 165 of AFA 2006 with Part 20 of the Armed Forces (Court Martial) Rules 2009. By making the 'Rules' part of the new schedule 3A of the revised AFA 2006, this schedule placed the Rules' provisions (relating to the consequences for election of trial by court-martial) into primary, rather than secondary, legislation.
- Schedule 2 concerns Judge advocates sitting in civilian courts
- Schedule 3 contains Minor amendments of service legislation
- Schedule 4 covers consequential amendments
- Schedule 5 covers Repeals and revocations of previous legislation.
The passage of the Act through both Houses of Parliament was as follows:
House of Commons
The Bill was given its first reading in the House of Commons on 8 December 2010. It was backed (sponsored) by Defence Secretary Liam Fox, David Cameron, Nick Clegg, William Hague, Kenneth Clarke, Theresa May, Vince Cable, Andrew Mitchell, the Attorney-General and Andrew Robathan.
The Bill's second reading debate took place on 10 January 2011. A large element of the Secretary of State's opening speech, and the subsequent debate, focused on the provisions within the Bill that brought the Armed Forces Covenant into law, with one MP describing that element of the Bill as being its 'great innovation.
Several MPs suggested provisions be added to the Bill:
- A measure to require decisions on military basing to be approved by Parliament, rather than left entirely to the MOD;
- Priority health care for veterans;
- Making the citations for medals public;
- Joining the 3 service police forces (The Royal Military Police, the RAF Police and the Royal Navy Police) into a tri-service police branch;
- Strengthening the ability of Parliament to hold Ministers to account for the delivery of the Armed Forces Covenant;
- Changing the term 'Armed Forces Covenant' in the Bill to the 'Military Covenant'.
At the end of the debate the Bill was accepted without a division being taken, and was followed by money and programme resolutions. The House also passed a resolution to appoint a Select Committee for the Bill.
Subsequent Commons stages were as follows:
|Committee (Oral Evidence)||3, 8 and 10 Feb 2011|
|Committee (Line by Line scrutiny)||10, 15 and 17 Feb 2011||Select Committee Report: 10 February, 15 February (Morning), 15 February (Afternoon), 17 February 2011||Committee comprised James Arbuthnot, (Chair) Alex Cunningham Thomas Docherty, Gemma Doyle, Tobias Ellwood, Mark Francois, Kevan Jones, Mark Lancaster, Jack Lopresti, Sandra Osborne, Christopher Pincher, Andrew Robathan, Bob Russell and David Wright.|
|Committee of the Whole House and Programme (No 2) Motion||14 Jun 2011||Columns 674-749|
The Bill's third reading took place on 16 Jul 11. It was moved by the Under-Secretary of State, Andrew Robathan, and Gemma Doyle replying on behalf of the Opposition. Jack Lopresti closed the debate, with the Bill being passed without a division.
House of Lords
The Bill was introduced to the Lords on 16 Jun 2011. Subsequent Lords stages were as follows:
|2nd Reading||6 Jul 2011||Columns 271-342|
|Committee||6 & 8 Sep 2011||Columns GC1-GC58 and GC89-GC108|
|Report||4 Oct 2011||Columns 1023 to 1075|
The Bill's third reading in the Lords took place on 10 Oct 2011. The first speech in the debate, made by Lord Craig, was on an amendment relating to the armed forces covenant clause of the Bill. The amendment aimed at moving the location of the clause mandating the production of the covenant report in the AFA 2006 from after section 359, to being in a new part (Part 16A). The reasoning behind the amendment was that the 2011 Bill, as it had been drafted up to that point, would have placed the covenant requirement into what was described as 'the tail end of ad hoc and miscellaneous provisions of the Armed Forces Act 2006'. The amendment would place the covenant requirement into a place that, Lord Craig argued, 'far more adequately [reflected] the importance of this... initiative of the Government.' This amendment was agreed to.
|Programme (No. 3) motion: House of Commons, and Commons Consideration of Lords' Amendments||19 Oct 2011||Columns 1008-1021|
|Lord's Consideration of Commons Reason||26 Oct 2011||Columns 856-863|
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