ARMED FORCES BILL
Memorandum from the Ministry of Defence to the Delegated Powers and Regulatory Reform Committee
A. INTRODUCTION
1. This memorandum has been prepared for the Delegated Powers and Regulatory Reform Committee to assist with its scrutiny of the Armed Forces Bill (“the Bill”). The Bill was introduced in the House of Commons on 26th January 2021 and brought from the House of Commons on 14 July 2021. This memorandum identifies the provisions of the Bill that confer powers to make delegated legislation. It explains in each case why the power has been taken and explains the nature of, and the reason for, the procedure selected.
B. PURPOSE AND EFFECT OF THE BILL
2. Primary legislation on the armed forces is needed every five years to continue in force the Armed Forces Act 2006 (“AFA 2006”). The AFA 2006 enables the armed forces to be recruited and maintained as disciplined bodies. In particular, it sets out the service justice system, the service complaints system and deals with recruitment and terms of service of enlisted members of the armed forces. This Bill provides for the continuation of the AFA 2006. In doing so, it implements recommendations requiring primary legislation from the recent Service Justice System Review; albeit taking a different approach than recommended to concurrent jurisdiction. It also takes forward the manifesto commitment at the last election further to incorporate the Armed Forces Covenant into law.
3. In summary, the Bill will:
Duration of the AFA 2006
a. Provide for the continuation, for a further period up to the end of 2026, of the AFA 2006, which would otherwise expire at the end of 2021.
Service justice system
b. Provide that where lay members (officers/warrant officers who perform a similar function to the jury in the civilian criminal justice system) are sitting as part of the Court Martial, there will be three or six such lay members (currently there can be anywhere between three and seven); and include those of OR-7 rank (a person of the rank of staff sergeant or equivalent) in the range of personnel qualified to sit as a lay member;
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and to introduce qualified majority voting where there are six lay members on the Court Martial. c. Provide the Lord Chief Justice with a power to nominate a Circuit judge to sit as a judge advocate following a request by the Judge Advocate General. d. Provide commanding officers for summary hearings, the Service Civilian Court and the Summary Appeal Court with the power to rectify mistakes in sentencing (a “slip rule”). e. Place a duty on the Director of Service Prosecutions and the Director of Public Prosecutions in England and Wales to agree a protocol where there is concurrent jurisdiction, that is, where alleged criminal conduct by a service person in England and Wales could be tried in either the service justice system or the civilian criminal justice system. There is equivalent provision for the handling of such issues in Scotland and Northern Ireland.
Service in the armed forces f. Place a duty to have due regard to the three principles of the Armed Forces Covenant, as set out in Part 16A of the AFA 2006, on certain public bodies (for example, local authorities, local housing authorities, admission authorities, NHS bodies), when exercising certain of their functions in the areas of housing, education and healthcare. g. Provide a more flexible suite of options for reserves volunteering for additional duties or committing to a period of service under the Reserve Forces Act 1996. h. Increase efficiency within the statutory service complaints system for the armed forces by enabling the reduction in time given to complainants to lodge their appeal from six weeks to two weeks and permitting the possibility of restricting the grounds on which an appeal can be brought.
Service police: complaints, misconduct etc i. Provide for a system of independent oversight of the service police modelled on the one in place for civilian police in England and Wales (as overseen by the Director General of the Independent Office for Police Conduct (“DG IOPC”)) and create an office holder, the Service Police Complaints Commissioner, to replicate the role of the DG IOPC.
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Sentencing and rehabilitation j. Remove a disparity in the punishments available to commanding officers by making it possible for the commanding officer to award a sentence of detention to Royal Marine corporals. This provides for consistent treatment of Royal Marine corporals and Leading Hands (both OR-4) within the Naval Service. k. Make provision for a service court or commanding officer sentencing an offender to make a deprivation order in relation to property used to commit a service offence or that the offender intended to use for that purpose. l. Extend the punishments available to the Court Martial and Service Civilian Court to give the court a discretionary power to disqualify a person from driving. m. Amend the AFA 2006 to remove the requirement on service courts to take account of EU member State convictions in the same way as UK convictions when sentencing (this measure is to reflect changes being made to civilian sentencing legislation). n. Restore rehabilitation periods in England and Wales to the service sentences of reprimand and severe reprimand.
Posthumous pardons o. Amend the provisions of the Policing and Crime Act 2017 regarding service disciplinary proceedings to extend posthumous pardons for those convicted of very old abolished service offences if specified conditions are met. At present the relevant provisions of the legislation refer only to relevant historical service offences of men who served in the Navy but not in respect of those who served in the Army or the Royal Marines (when ashore abroad).
Miscellaneous and minor amendments p. Clarify section 357 of the AFA 2006, which deals with the application of the AFA 2006 to British overseas territories to confirm that the Act can be applied by Gibraltar to the Royal Gibraltar Regiment to bring them into the service justice system contained in the AFA 2006. q. Amend the Pensions Appeal Tribunals Act 1943 to enable the provisions on late appeals for the armed forces compensation schemes in Scotland and Northern Ireland to be aligned with those for England and Wales.
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C. DELEGATED POWERS
Clause 1: duration of Armed Forces Act 2006
Power conferred on: Her Majesty
Power exercised by: Order in Council
Parliamentary Procedure: Affirmative
Context and purpose
4. This clause deals with the duration of the AFA 2006. This provision has its origins in the Bill of Rights 1688 which provides that a standing Army in time of peace is only lawful with the consent of Parliament. The principle of parliamentary consent for the armed forces is now given effect in the requirement for renewal of the AFA 2006; the legislation which enables the armed forces to be recruited and maintained as disciplined bodies. The practice of renewal involves Armed Forces Acts every five years; with annual Orders in Council made by the affirmative procedure in the intervening years.
5. Specifically, when originally enacted, section 382 of the AFA 2006 provided that the Act was to expire one year after having been passed; subject to a power to extend the Act for a further year at a time by Order in Council. Such Orders in Council are made under the affirmative procedure. They could not extend the life of the Act beyond the end of 2011. A further Armed Forces Act was therefore required to renew the AFA 2006 in 2011. The Armed Forces Acts in 2011 and 2016 substituted section 382 for a new provision which maintained the pattern of Orders in Council and Armed Forces Acts.
6. Clause 1 carries on this tradition by providing that – rather than expiring at the end of 2021 – the AFA 2006 expires one year after the Bill is passed. The AFA 2006 can be extended by Order in Council for a further year at a time. An Order in Council cannot extend the AFA 2006 beyond the end of 2026.
Justification for taking the power
7. The Order in Council process strikes the balance between providing an annual opportunity for Parliament to debate the continuation of the AFA 2006; while removing the need for annual armed forces Acts of Parliament. Without the power to continue the AFA 2006, it would be necessary either to have annual armed forces legislation (which would be a
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significant burden on Parliament and the Government) or reduce the frequency with which Parliament considers the AFA 2006.
Justification for the procedure
8. The affirmative procedure is appropriate because it gives Parliament the opportunity to affirm the continuation of the AFA 2006. This maintains the approach in the AFA 2006 and Armed Forces Acts in 2011 and 2016.
Clause 2 and Schedule 1: constitution of the Court Martial
Power conferred on: Secretary of State
Power exercised by: Court Martial rules
Parliamentary Procedure:
Affirmative (in relation to rules made by virtue of section 155 about the constitution of the Court Martial)
Negative (otherwise)
Context and purpose
9. This Schedule alters the constitution of the Court Martial to deliver recommendations of the Service Justice System Review (recommendation 4 of Part 1; recommendations 24 to 26 of Part 2). At present, in proceedings involving lay members, the Court Martial may consist of three to seven lay members, depending on the type of proceedings involved. The Schedule will provide for panels of either three or six lay members; with the possibility that proceedings which initially had a six-member panel to continue with only five members. The Schedule expands the extent to which senior enlisted ranks can sit on such panels; permitting those of OR-7 rank to take part. OR-7 is a NATO term and, in the UK forces, means the ranks of chief petty officer, staff corporal, staff sergeant, colour sergeant in the Royal Marines, flight sergeant and chief technician. The Schedule would also provide that verdicts in the Court Martial are to be reached by qualified majority where there are six (or five) lay members.
10. While the main features of the revised arrangements are on the face of the legislation, matters of detail and procedure are to be set out in Court Martial rules made by the Secretary of State. The main powers to make these rules are in section 163 of the AFA 2006 but other powers are to be found elsewhere in the Act, including in sections 155 and
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157. The current rules are in the Armed Forces (Court Martial) Rules 2009. To implement the new arrangements the enabling powers for the Court Martial rules are being amended so that the rules can be used to:
a. prescribe proceedings where the Court Martial must consist of six rather than three lay members (in addition to the judge advocate): this supersedes an existing power in section 155(2)(a) of the AFA 2006 to make Court Martial rules to prescribe when there are to be at least five lay members;
b. prescribe the number of lay members who must be OR-7 ranks: this is an amendment of an existing power in section 155(3) of the AFA 2006 to make rules to prescribe the number of lay members who must be officers or warrant officers;
c. prescribe the circumstances in which a judge advocate may direct that the Court Martial is to remain validly constituted despite the reduction of the number of lay members from five to six: this is a new power which will be contained in a new subsection (6A) in section 155 of the AFA 2006;
d. prescribe when OR-7 ranks are ineligible for membership of the Court Martial (they may also be ineligible if they meet the criteria set out in section 157(2) of the AFA 2006): this is an amendment of an existing power in section 157(4) of the AFA 2006 to make rules to prescribe when an officers or warrant officers are ineligible for membership.
Justification for taking the power
11. The approach taken in the Bill of setting out the key elements of the new arrangements in primary legislation while using Court Martial rules to tackle matters of detail and procedure reflects how Court Martial rules are used in the AFA 2006 at present. It is therefore well- precedented and the MOD considers that it is an appropriate use of a delegated power and that it is appropriate to make adjustments to the enabling powers for the Court Martial rules so they can be used as intended. The following paragraphs deal with the specific use of the powers above.
12. The use of the Court Martial to rules to specify the proceedings where the Court Martial must have six lay members reflects the fact that similar functions are currently dealt with in Court Martial rules (see rules 28 to 30 of the Armed Forces (Court Martial) Rules 2009), which specify when proceedings are to consist of no lay members or at least five members
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and when a judge advocate may direct that there be six or seven members. It also means that, if any adjustment is needed to the type of case which is to be allocated to either a three or a six member panel in light of practical experience of the system in operation, it will be possible to change the arrangements without needing further primary legislation.
13. The intention is that this power will be used to give effect to recommendation 25 of Part 2 of the Service Justice System Review:
Recommendation 25: It is recommended 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 or detention.
Rule 29 of the Armed Forces (Court Martial) Rules 2009 currently determines when a Court Martial trying a case must have at least five members, the criteria being that the defendant is being tried for a Schedule 2 offence (these are serious offences such as criminal conduct service offences where the corresponding offence is rape or manslaughter) or an offence that can be punished with more than seven years imprisonment. The rules that would be needed to give effect to the recommendation will function much like rule 29 does at present, with the revised criteria contained in recommendation 25.
14. The use of Court Martial rules to determine how many lay members must be OR-7 ranks and to determine when OR-7 ranks are ineligible to be lay members follows the format of the current legislation, which enables rules of this kind to be made in respect of officers and warrant officers. MOD considers it appropriate to use Court Martial rules in this way as this is a minor consequential adjustment to the existing scope of those rules to ensure existing powers to make Court Martial rules in respect of lay members apply to OR-7 ranks. The existing powers have been exercised in rules 31 and 32 of the Armed Forces (Court Martial) Rules 2009. These allow there to be two warrant officers as lay members if the defendant has the same rank or is of a lower rank (if the defendant is an officer, only other officers can be lay members). They also provide that officers/warrant officers are ineligible for membership in particular circumstances, for example, if they are in the same unit as any defendant. The intention is that these rules will apply to OR-7 ranks in the same way as they do to warrant officers.
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15. The use of Court Martial rules to set out the circumstances in which a panel initially constituted with six lay members may continue with five lay members does not have a direct precedent in the AFA 2006. Under the current system the number of lay members can range from three to seven, with a minimum of three or five members depending on the case. If a lay member is absent, the proceedings can continue unless the number of lay members falls below the minimum number required, in which case the proceedings cannot continue. The Service Justice System Review recommended there be a mechanism to enable the Court Martial when constituted with six lay members to continue despite the death, sickness or absence of one of those members, to reflect the existing practice in the Crown Court where a jury may continue even if up to three members are absent. This recommendation is being mainly implemented via amendments to the AFA 2006, however MOD consider it appropriate to use Court Martial rules to set out the detail on the circumstances in which it is permissible to continue with five lay members as this is a matter of procedural detail which is unlikely to be relevant for the majority of proceedings in the Court Martial. The rules may also need to be revised as the new arrangements are used in practice which will be easier to do if they are in the Court Martial rules.
16. It should be noted section 16 of the Juries Act 1974 allows a trial to continue in the Crown Court even if up to three jurors are discharged whilst allowing the court to choose to discharge the jury if it sees fit to do so. Case law provides guidance on the circumstances in which the trial should continue, there is no statutory provision as there will be for the Court Martial.
Justification for the procedure
17. The procedure chosen reflects the existing procedural split for Court Martial rules in the AFA 2006; see section 373. Court Martial rules are ordinarily subject to the negative procedure, but certain types of rules require the affirmative procedure. The affirmative procedure is required for Court Martial rules which “by virtue of section 155 make provision about the constitution of the Court Martial” (section 373(3)(f)(i) of the AFA 2006). This means that the matters dealt with by way of amendment to section 155 will take the affirmative procedure. MOD considers that, given the importance of the constitution of the Court Martial, this is the appropriate procedure.
18. As noted above, the existing power for rules to make further provision about ineligibility for an officer or warrant officer in section 157(4) of the AFA 2006 is being expanded to include OR-7 ranks. Rules made under this section will be subject to the negative procedure, MOD considers that this procedure is appropriate, as it reflects the existing arrangements.
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Clauses 4, 5 and 6: power to rectify mistakes etc in summary hearings, the Summary Appeal Court and the Service Civilian Court
Power conferred on: Secretary of State
Power exercised by: rules for summary hearings, the Summary Appeal Court rules and the Service Civilian Court rules
Parliamentary Procedure: Negative
Context and purpose
19. These clauses would introduce a power to correct mistakes in sentencing (known as a slip rule) for commanding officers conducting summary hearings, the Summary Appeal Court and the Service Civilian Court. More detail on summary hearings and these service courts is given below:
a. In the service justice system, low level offending by a service person can be dealt with by the service person’s commanding officer at a summary hearing: see sections 52 to 54 of the AFA 2006. The commanding officer can award a punishment at the end of the hearing, including a period of detention.
b. A service person has a right to appeal the finding/sentence of the commanding officer to the Summary Appeal Court. That court consists of a judge advocate and two lay members. The court can either confirm the punishment awarded by the commanding officer or substitute another punishment.
c. The Service Civilian Court consists of a judge advocate and tries civilians subject to service discipline, these are civilians who are under the jurisdiction of the service courts for example those living on certain UK bases overseas. The Service Civilian Court functions much like a magistrates’ court with a District Judge and deals with similar offences (more serious matters are generally dealt with by the Court Martial). It has similar, but more limited, sentencing powers to the Court Martial, for example it can only impose at most 12 months’ imprisonment.
20. At present there is no power to vary or rescind a sentence or order awarded, made or confirmed by a commanding officer at a summary hearing, the Summary Appeal Court or the Service Civilian Court. This means that mistakes in sentencing can only be corrected on appeal. In contrast, section 163(3)(h) of the AFA 2006 allows the Court Martial to be
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given the power to vary or rescind sentences in Court Martial rules; see Part 15 of the Armed Forces (Court Martial) Rules 2009. Slip rules are also a common feature of the civilian criminal justice system in England and Wales; see for example, in relation to the Crown Court, section 385 of the Sentencing Act 2020 and, in relation to a magistrates’ court, section 142 of the Magistrates’ Courts Act 1980. The Service Justice System Review recommended the introduction of a slip rule for summary hearings by commanding officers (recommendation 43 of Part 2).
21. These clauses give effect to this policy by amending the powers to make rules for summary hearings by commanding officers, the Summary Appeal Court and the Service Civilian Court, so these rules can include powers to vary or rescind sentences if the officer or court in fact had no power to give that sentence (like the Court Martial rules do now). The powers to make these rules are contained in section 151, 153 and 288 of the AFA 2006; they are all made by the Secretary of State and are subject to the negative procedure. We expect the new rules to both establish the new correction powers and set out the procedure to be followed when it is exercised.
Justification for taking the power
22. Taking these rule-making powers to achieve this policy reflects the approach taken in relation to the Court Martial. The rule-making powers created in these clauses are to in similar terms to the powers under section 163(3)(h) of the AFA 2006 which allow a power to vary sentences to be included in the Court Martial rules. It should be noted that the new rule-making powers in the AFA 2006 will in fact be slightly narrower than the equivalent powers in section 163(3)(h) of the AFA 2006. The new powers will only allow for rules permitting the variation/rescission powers in cases where it appears to the commanding officer or the court that there was no power to award the punishment or make the order. In contrast section 163(3)(h) of the AFA 2006 permits rules for the variation/recession of orders to be included in Court Martial rules without further qualification. There is therefore a clear precedent which MOD is following.
Justification for the procedure
23. MOD considers that the negative procedure is appropriate in this case as it follows the precedent of the existing powers to make Court Martial rules relating to variation/rescission, which are similarly subject to the negative procedure. In addition – as outlined above – these powers will create variation/recession powers which are slightly narrower than the existing powers for Court Martial rules.
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Clause 7: concurrent jurisdiction
Power conferred on:
in England and Wales: the Director of Service Prosecutions and the Director of Public Prosecutions
in Scotland: the Director of Service Prosecutions and the Lord Advocate
in Northern Ireland: the Director of Service Prosecutions and the Director of Public Prosecutions for Northern Ireland
Power exercised by: protocol
Parliamentary Procedure: none
Context and purpose
24. This provision confers a duty on the Director of Service Prosecutions and the Director of Public Prosecutions – the heads of, respectively, the service and civilian prosecution services in England and Wales – to agree a protocol which would contain guidance on handling concurrent jurisdiction. Concurrent jurisdiction arises where it is possible for criminal conduct by UK service personnel in England and Wales either to be dealt with in the service justice system or the civilian criminal justice system. Under section 42 of the AFA 2006, a UK service person commits a service offence (punishable in the service justice system) if he or she does any act that: (a) is punishable by the law of England and Wales; or (b) if done in England or Wales, would be so punishable. In practical terms, this means that where a service person commits an offence in England or Wales, he or she could be tried in either system.
25. The protocol will provide guidance on the general principles to be taken into account by relevant prosecutors (broadly the Service Prosecuting Authority and the Crown Prosecution Service) in considering where proceedings should be brought. The protocol may also give guidance on the circumstances in which prosecutors in each system should consult each other on the handling of cases. The expectation is that in most cases prosecutors in each system will be able to take decisions without consulting the other system’s prosecutors. Prosecutors will not be required to follow the protocol if they are not aware that the Court Martial has (or may have) jurisdiction, for example, if the civilian prosecutors are not aware that an individual is a service person. Before agreeing a protocol, the Directors will be obliged to consult with the Secretary of State, the Attorney
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General, the National Police Chiefs’ Counsel and any other appropriate person. The clause provides that the protocol will need to be published.
26. There is corresponding provision to require a protocol for concurrent jurisdiction in Scotland and in Northern Ireland.
27. The MOD considers that the requirement to issue a protocol is arguably not a power to make delegated legislation. The power is designed to create a greater degree of formality about the ways of working between the prosecutors in the service and civilian justice systems. However, MOD has included the power in this memorandum in order to provide the Delegated Powers and Regulatory Reform Committee with as complete a picture of the Bill as possible.
Justification for taking the power
28. The requirement for the Director of Service Prosecutions and Director of Public Prosecutions (and equivalents in Scotland and Northern Ireland) to agree a protocol is designed to ensure that, where there is an issue over the jurisdiction in which a prosecution ought to take place, there are clear principles to guide prosecutors in making an appropriate decision. The statutory protocol will in England and Wales replace an existing non-statutory protocol developed by agreement between the Directors and the Ministry of Defence. MOD expects that the matters to be included in the statutory protocol will be similar to those contained in that non-statutory protocol. A copy is available here.1 The protocol is designed to establish general principles and be practical. This material is suitable for a non-legislative protocol rather than primary or secondary legislation. The protocol will be similar in nature to the Code for Crown Prosecutors which is issued under section 10 of the Prosecution of Offences Act 1985. That Code similarly contains guidance on general principles. There it relates to the principles to be applied by prosecutors in deciding whether to institute proceedings. The Code is not primary or secondary legislation. The MOD considers that the Code for Crown Prosecutors provides a useful precedent for the approach being taken in this provision.
Justification for the procedure
29. There will be no parliamentary procedure associated with this protocol. MOD considers that this is appropriate for a statutory protocol of this nature. Prosecutors in the Service Prosecuting Authority and the Crown Prosecution Service (and equivalents in Scotland
1 https://www.cps.gov.uk/sites/default/files/protocol-exercise-criminal-jurisdiction-England-Wales- 2016.pdf.
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and Northern Ireland) will be obliged to take the guidance contained in the protocol into account. It therefore applies to a distinct cohort of individuals (that is, service and civilian prosecutors) and only contains obligations to take the guidance into account. The protocol will not bind individuals more widely. As noted above, the requirement to agree a protocol is similar in nature to the requirement to produce the Code for Crown Prosecutors which is set out in section 10 of the Prosecution of Offences Act 1985. There is no parliamentary procedure associated with that Code. The requirement to consult before agreeing the protocol and publish it means there will be an appropriate degree of consultation and transparency.
Clause 8, new section 343AE: sections 343AA to 343AD: guidance
Power conferred on: the Secretary of State
Power exercised by: guidance
Parliamentary Procedure: none
Context and purpose
30. This clause implements the manifesto commitment to introduce legislation further to incorporate the Armed Forces Covenant into law. The Armed Forces Covenant, as it is currently formulated, was formalised in May 2011. It is currently voluntary, supported by a statutory obligation on the Secretary of State to make an annual Armed Forces Covenant report: see Part 16A of the AFA 2006. However, it is recognised that there is some variation in both observance and delivery across the United Kingdom, and in particular around access to housing, education and healthcare. This clause will require specified persons or bodies to have due regard, in the exercise of relevant functions, to the three Armed Forces Covenant principles (using the language already in Part 16A):
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.
This duty will diminish any potential disadvantages stemming from the unique nature of service and unique obligations that accompany service in the armed forces, increasing
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understanding of how this affects the way armed forces personnel, veterans and their families access public services, and to embed this understanding into the way public services operate, make decisions and develop policies.
31. This clause will provide the Secretary of State with a power to issue guidance relating to the Armed Forces Covenant duty. When specified persons or bodies exercise relevant functions, they will be obliged to have regard to that guidance. Whilst not a power to make secondary legislation, the power to issue guidance is included to give the Delegated Powers and Regulatory Reform Committee as complete a picture of the Bill as possible.
Justification for taking the power
32. The power to issue guidance is designed to assist the persons or bodies subject to the duty to identify the practical steps that those persons or bodies are expected to take to comply with the Armed Forces Covenant duty. The expectation is that the guidance will provide further information about: (a) the way in which the three Armed Forces Covenant principles may be considered and applied; (b) the types of disadvantage commonly suffered by service personnel, veterans and their families, for example, the requirement of mobility; (c) explaining the sort of practical steps public bodies may be expected to consider in having due regard to the Armed Forces Covenant duty; and (d) the circumstances in which people are to be regarded as “relevant family members” and so therefore “service people” to whom the second and third principles of the Armed Forces Covenant apply (see the definition of “relevant family member” in section 343B of the AFA 2006; that definition will apply to the new Armed Forces Covenant duty). The MOD considers that these matters are matters which are suitable for guidance rather than primary or secondary legislation. It is therefore appropriate to create this power in this instance.
Justification for the procedure
33. There is no parliamentary procedure associated with this power to issue guidance. Specified public bodies will be required to have regard to the guidance rather than be bound by it. It is uncommon for statutory guidance of this nature to have a parliamentary procedure. This clause contains a duty to consult the devolved administrations prior to issuing guidance insofar as it concerns devolved functions. This provides sufficient safeguards for the nature of the guidance.
Clause 8, new section 343AF: sections 343AA to 343AD: power to add bodies and functions
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Power conferred on: the Secretary of State
Power exercised by: Regulations
Parliamentary Procedure: affirmative
Context and purpose
34. As above, this clause implements the manifesto commitment further to incorporate the Armed Forces Covenant into law. The Armed Forces Covenant duty described above applies to specified persons or bodies. It only applies to such persons or bodies when they are exercising a relevant healthcare function, relevant education function or relevant housing function. Those functions are specified in the provision. This clause includes a power for the Secretary of State by regulations to amend new sections 343AA to 343AD in order to:
a. specify additional functions in relation to the exercise of the Armed Forces Covenant duty;
b. specify additional persons or bodies who are to be subject to the duty.
Only functions which are statutory functions may be added by this power. Additional persons or bodies can only be added where they are exercising statutory functions. Such additions can be made in fields beyond healthcare, education and housing.
Justification for taking the power
35. The Armed Forces Covenant has been operating successfully in its current form, and so this clause limits the functions of the persons or bodies to healthcare, education and housing, as there already exists a reporting obligation in relation to these matters within the AFA 2006. These fields have been chosen carefully to ensure that the Armed Forces Covenant duty will not be overly onerous, but will be most effective for service personnel, veterans and their families. However, there is a recognition that there may be other public service areas in which members of the armed forces community experience disadvantage and where, in future, it may be desirable to add additional persons or bodies and additional functions. This power enables such areas to be added without the need for further primary legislation.
36. Although this is a power to amend primary legislation, there are important limitations on that power. It can only be used to add persons/bodies or functions. It could not be used to
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remove such persons/bodies or functions; further primary legislation would be needed for that. This is an important safeguard for Parliament and for the armed forces community because it means that the Armed Forces Covenant duty could not be diminished in scope without further primary legislation. Furthermore, additional persons or bodies will need to be those with statutory functions and the functions would need to be statutory in nature. In this way, this power could only be used to add persons/bodies/functions of a public nature. It could not be used to expand the Armed Forces Covenant into areas which are regulated wholly by private arrangements, that is, wholly private bodies.
Justification for the procedure
37. The power would be exercisable by the affirmative procedure. In addition, it would only be available in areas of devolved competence after consultation with the relevant devolved administration. The MOD considers that these are appropriate procedures and safeguards for a power of this nature.
Clause 9: reserve forces: flexibility of commitments
Power conferred on: Her Majesty OR the Defence Council
Power exercised by: Order (in the case of Her Majesty) or Regulations (in the case of the Defence Council) – these are not made by statutory instrument
Parliamentary Procedure: laid before Parliament after being made
Context and purpose
38. The purpose of this clause is to provide a more flexible suite of options for reserves volunteering for additional duties or committing to a period of full-time service under the Reserve Forces Act 1996 (“RFA 1996”). This is to ensure that following the introduction of flexible service for regulars under the Armed Forces (Flexible Working) Act 2018 that the legislation for reservists (who already serve on a much more flexible basis than regulars) keeps pace with developments in how regulars serve. The provision replaces the current “full-time service commitment” under section 24 of the RFA 1996 with a “continuous service commitment”. Such a continuous service commitment may either be full-time or part-time.
39. The kind of full-time and part-time service permitted under continuous service commitment will be dealt with in orders and regulations made under section 4 of the RFA 1996. Orders under section 4 are made by Her Majesty and regulations under that section are made by
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the Defence Council. These are not statutory instruments. In practice, the powers of the Defence Council are exercisable by single Service boards: the Admiralty Board, the Army Board or the Air Force Board; see section 1(5) of the Defence (Transfer of Functions) Act 1964. These already set out the detail of the commitments and the duties that members of reserve forces on those duties may be required to perform.
40. See also the discussion about clause 23 (commencement and transitional provision) for relevant transitional provision.
Justification for taking the power
41. As stated, the practice at present is for the detail of the arrangement for reserves to be set out in orders made by Her Majesty or regulations made by the single Services. Such orders or regulations are already able to make provision on key matters of detail relating to terms and conditions of service in the reserve forces. See in particular in Part 1 (the reserve forces), Part 2 (enlistment and conditions of service) and Part 3 (training and other duties) of the RFA 1996. Orders or regulations under section 4 of the RFA 1996 may cover such matters as:
a. the government and discipline of any reserve force and all other matters and things relating to that force (except pay, bounty and allowances); see section 4 of the Act;
b. the organisation of the reserve forces; see section 5 of the Act;
c. the duties of, and any other matter relating to, the permanent staff of any reserve force; see section 6 of the Act;
d. matters relating to enlisted service personnel, including enlistment, re- engagement and discharge; the enlistment of foreign nationals and residents; see sections 10, 12 and 19 of the Act;
e. provisions relating to training obligations of members of the reserve forces; see sections 22 and 23 of the Act;
f. duties of those on a full-time commitment (to become under this clause a continuous service commitment), additional duties commitments and voluntary training and other duties; see sections 24 to 27 of the Act.
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In this way, the current regulations for each of the three services form a “staff handbook” for all members of a reserve force.
42. The power taken in this clause is therefore in line with the matters currently dealt with by order or regulations under the RFA 1996. The principle of service on a part-time basis being possible under a continuous service commitment is established by the primary legislation. Orders or regulations are then the appropriate place to deal with the parameters for the mixture of part-time or full-time service in such a commitment type.
Justification for the procedure
43. The procedure taken for the power will follow the existing procedures for orders or regulations. In particular, such orders or regulations are laid before each House of Parliament after being made. As outlined above, the matters to be dealt with by order or regulations under this clause are similar in nature to the matters already dealt with by order or regulations under the RFA 1996. This level of parliamentary scrutiny is therefore appropriate for this power.
Clause 10: service complaints appeals New paragraph 340D(2)(aa) Power conferred on: the Defence Council
Power exercised by: regulations
Parliamentary Procedure: negative
Context and purpose
44. This clause inserts new paragraph (aa) into section 340D(2) of the AFA 2006. Section 340D(2) of the AFA 2006 allows the Defence Council to make regulations about appeals from the Decision Body (“service complaints regulations”), which is a person or panel appointed by the Defence Council to investigate and make a decision on a service complaint. There is currently no provision in this section for limiting the grounds on which an appeal against such a decision can be brought.
45. New paragraph 340D(2)(aa) will create a power to restrict the grounds on which an appeal can be brought, allowing the Defence Council to amend the regulations governing the service complaints system so that an appeal against the Decision Body can only be brought in certain circumstances, such as when new evidence has come to light that could alter the outcome of the decision, or there is evidence that the process was incorrectly
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followed. The purpose of this clause, which forms part of a wider package of reform of the service complaints system, is to enable closer alignment between the grounds of appeal in the service complaints system with the usual standards of civilian grievance systems. This clause also provides that the minimum period of appeal is to be two weeks from the day of notification of decision (as opposed to six weeks).
Justification for taking the power
46. It is considered that creating a power to restrict the grounds of appeal in secondary legislation is preferable to putting the grounds of appeal directly into the primary legislation, as this is consistent with the current statutory scheme and avoids dividing the process and procedure for appeals in the service complaints system across primary and secondary legislation. While this power would reduce the circumstances in which appeals can be brought, it is important to recall that the secondary legislation on service complaints already creates categories of first instance decisions on service complaints which cannot be appealed. First instance decisions on a service complaint are taken either by: (a) a person or panel of persons appointed by the Defence Council (“the Decision Body”); or (b) the Defence Council themselves. There is currently a right of appeal against decisions of the Decision Body, but not decisions of the Defence Council. Currently, the service complaints system is unusual in allowing appeals to be brought against decisions of the Decision Body where the person making the complaint is dissatisfied with the outcome for any reason. The intent is to bring the current system into closer alignment with MOD’s civilian grievances system, which allows appeals to be brought only where there is new evidence or suggestion of a procedural error. A complaint without an appeal right will now be considered determined after the Decision Body, leading to a quicker resolution without affecting the service person’s ability to go to the Service Complaints Ombudsman.
Justification for the procedure
47. It is considered that it is suitable for this power to be subject to the negative resolution procedure as this is consistent with the current section 340D powers relating to the regulation of appeals. Given that the legislation already provides for a mixture of first instance decisions which carry appeal rights and those which do not – as described above – MOD considers that it is not necessary to adopt a more onerous procedure.
New paragraph 340D(2)(ca)
Power conferred on: the Defence Council
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Power exercised by: regulations
Parliamentary Procedure: negative
Context and Purpose
48. New paragraph 340D(2)(ca) will add to the existing power to make regulations by enabling service complaints regulations to make provision requiring the Defence Council to decide any question relating to whether an appeal has been brought on valid grounds. Where, by virtue of new paragraph 340D(2)(aa) above, an appeal can only be brought in certain circumstances, this will ensure there is a ‘decision’ on the validity of an appeal which can be subject to review by the Service Complaints Ombudsman under new paragraph 340D(6)(aa), as set out at paragraphs 51 to 53 below.
Justification for taking the power
49. This power mirrors current paragraph 340D(2)(c), which provides the power to make provision in service complaints regulations requiring the Defence Council to decide any question relating to whether an appeal has been brought in time. It is also consistent with current paragraph 340B(4)(a), which sets out that service complaints regulations must provide for a decision on whether a complaint is admissible at first instance. The intent is that, at all appropriate stages of the service complaints process, there is a decision on admissibility capable of being the subject of a review by the Service Complaints Ombudsman upon application by the complainant. The new paragraph is therefore consistent with the current statutory scheme and avoids dividing the process and procedure for appeals in the service complaints system across primary and secondary legislation.
Justification for the procedure
50. It is considered that it is suitable for this power to be subject to the negative resolution procedure as this is consistent with both the current section 340D(2) powers relating to the regulation of appeals and those relating to the admissibility of service complaints in section 340B(4), which this power mirrors.
New paragraph 340D(6)(aa)
Power conferred on: the Defence Council
Power exercised by: regulations
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Parliamentary Procedure: negative
Context and Purpose
51. New paragraph 340D(6)(aa) provides that service complaints regulations must make provision for the Service Complaints Ombudsman, on an application by the complainant, to review a decision by the Defence Council that an appeal was not brought on a valid ground. This will ensure that a complainant whose appeal is held to be inadmissible because the Defence Council considers it does not meet the grounds of appeal has the same access to the Ombudsman as a complainant whose appeal is held to be inadmissible because the Defence Council considers it was out of time. This also ensures consistency with the Ombudsman’s ability to review the admissibility of service complaints, as set out in section 340B(4).
Justification for taking the power
52. This power mirrors current paragraph 340D(6)(a), which provides that regulations must make provision for the Service Complaints Ombudsman, on an application by the complainant, to review a decision by the Defence Council that an appeal cannot be proceeded with because it is out of time. It is also consistent with paragraph 340B(4)(b), which makes similar provision for reviewing decisions on the admissibility of service complaints at first instance. Putting it in primary legislation would create an anomaly with the current statutory scheme governing the Service Complaints Ombudsman’s powers to review admissibility decisions.
Justification for the procedure
53. The current section 340D powers relating to the regulation of service complaints appeals are made under the negative resolution procedure. The new power in 340D(6)(aa) is intended to provide a procedural safeguard for complainants by ensuring service complaints regulations must also make provision to enable the Service Complaints Ombudsman to review all admissibility decisions on appeals It would not be suitable for this safeguard to be subject to a more onerous parliamentary procedure.
Clause 11 (service police complaints): new section 340P – complaints, misconduct etc
Power conferred on: the Secretary of State
Power exercised by: regulations
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Parliamentary Procedure: affirmative on the first exercise and when exercised to amend specified primary legislation, negative in other cases
Context and purpose
54. This clause gives effect to the Service Justice System Review recommendation that a new niche body is established to deliver independent oversight of the service police (Part 2, recommendation 44). The intent is to create a system for the service police similar to the system that applies to the civilian police in England and Wales in relation to complaints, conduct matters and death and serious injury matters. The civilian system is set out in and under Part 2 of the Police Reform Act 2002 (“the PRA 2002”) and Schedule 3 to that Act. That system is overseen by the Director General of the Independent Office for Police Conduct (“the DG IOPC”). This clause establishes the office of Service Police Complaints Commissioner (“the SPCC”) by inserting a new section 365BA into the AFA 2006. The SPCC will perform functions that correspond to the functions performed by the DG IOPC under the PRA 2002. This clause then provides (in new section 340P of the AFA 2006) a power to make, in relation to the SPCC and the service police, provision corresponding to any provision of or made under Part 2 of the PRA 2002. In particular, the new system will confer service police powers on the SPCC and investigating officers so that they are able to carry out investigations.
55. The power in new section 340P will also be exercisable to amend Part 3 of the Police Act 1997 and Parts 2 and 4 of the Regulation of Investigatory Powers Act 2000 to enable similar provision to be made to that made by secondary legislation made under section 19 of the PRA 2002. Section 19 of the PRA 2002 contains a power that allows both of these Acts to be applied for the purpose of authorising the use of directed and intrusive surveillance and the conduct and use of covert human intelligence sources for the purpose of the carrying out of the DG IOPC functions.
Justification for taking the power
56. Part 2 of the PRA 2002, and Schedule 3 (which contains much of the detail of the process to be followed for the purposes of Part 2) both contain powers to make further provision in secondary legislation. The England and Wales complaints regime is therefore set out in both primary and secondary legislation which need to be read as one. Where the intention is to make similar arrangements to those contained in and under Part 2 of and Schedule 3 to the PRA 2002 to a different context, the usual way of doing this is by taking a power to apply the PRA 2002 or to make similar provision for that new context.
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57. The power being taken here is slightly different to the usual approach in that it is simply a power to “make provision corresponding to… (with or without modifications)” – without the alternative option of applying the PRA 2002 with or without modifications. This is because MOD is conferring the functions given to the DG IOPC on a new office holder and there will not be a statutory Office, so it is clear that certain changes will be required and some provision will be unnecessary (such as the relationship between the DG and the Office) for the new complaints regime. MOD also does not want to apply the PRA 2002 with modifications as it considers that it is easier to understand regulations which make corresponding provision (with or without modification) rather than provisions which apply other legislation with modifications.
58. The approach of taking a power to create a version of the Part 2 regime is well- precedented and has been taken in a many different contexts previously. While the Bill creates a new officer-holder – the SPCC – on whom functions will be conferred, the intention is that the SPCC will perform in the service police context analogous functions to the DG IOPC, and the statutory arrangements will make similar provision to those set out in and under Part 2 of the PRA 2002. The MOD considers that this is best achieved by setting these matters out in secondary legislation rather than replicating an existing regime by re-writing on the face of primary legislation what is contained in Part 2 of the PRA 2002.
59. The contexts in which this approach has been taken previously are as follows:
a. Under section 26C of the PRA 2002, the power is exercisable in relation to the Director General of the National Crime Agency (“NCA”) and NCA officers. The National Crime Agency (Complaints and Misconduct) Regulations 2013 were made using this power.
b. Section 26D of the PRA 2002 covers labour abuse prevention officers working for the Gangmasters and Labour Abuse Authority and section 27 covers members of the Independent Office for Police Conduct’s own staff.
c. There is a similar power vested in the Treasury to confer functions on the DG IOPC in relation to the Commissioners for Her Majesty's Revenue and Customs, and officers of Revenue and Customs and to apply or make similar provision to any provision of or made under Part 2 of the PRA 2002; see section 28 of the Commissioners for Revenue and Customs Act 2005. The power has most recently been exercised to make the Revenue and Customs (Complaints and Misconduct) Regulations 2010.
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d. There is a similar power in section 41 of the Police and Justice Act 2006 for the Secretary of State to confer functions on the DG IOPC in relation to specified immigration and asylum enforcement functions as well as specified customs functions. The UK Border Agency (Complaints and Misconduct) Regulations 2010 were made using this power.
60. An alternative precedent for creating procedures corresponding to Part 2 of the PRA 2002 is the method of “agreements” with the DG IOPC. This is the approach used for civilian police forces which are not maintained by local policing bodies (see section 26 of the PRA 2002) such as the Ministry of Defence Police and College of Policing staff (see section 26C of the PRA 2002). The MOD decided against this approach, preferring the approach of tackling the issue through secondary legislation.
61. The power will also be used to amend primary legislation so that similar provision to that made under section 19 of the PRA 2002 can be made for the purposes of the SPCC. This will ensure that provision can be made so that the authorisation of the use of directed and intrusive surveillance and the conduct and use of covert human intelligence sources for the purposes of an SPCC investigations under the new procedures. Although this clause creates a power to amend primary legislation whereas section 19 is a power to make secondary legislation; the outcome is ultimately the same. Both provisions enable the creation of a modified form of the Police Act 1997 and the Regulation of Investigatory Powers Act 2000 for the purpose of SPCC/DG IOPC investigations.
Justification for the procedure
62. Regulations made under new section 340P of the AFA 2006 are to be subject to the affirmative procedure on their first exercise, and then the negative procedure for subsequent exercises of the power, unless they amend primary legislation in which case the affirmative procedure must always be followed.
63. While this power is very similar to the powers to create forms of the PRA 2002 regime referred to above (which take the negative procedure), the Government considers the affirmative procedure for its first exercise, which will confer functions on the new SPCC and set out the detail of the new complaints system, to be more appropriate. Thereafter, it is considered appropriate for the power to follow the same negative procedure which the other general powers follow. See for example section 28(5) of the Commissioners for Revenue and Customs Act 2005, section 49(4) of the Police and Justice Act 2006, and section 105(2) of the PRA 2002.
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64. Where the power is to be used to amend Part 3 of the Police Act 1997 or Parts 2 or 4 of the Regulation of Investigatory Powers Act 2000, it will always follow the affirmative procedure. MOD considers this appropriate as it allows parliamentary scrutiny of amendments to primary legislation. The power in section 19 of the PRA 2002 is also exercisable subject to the affirmative procedure.
Clause 11 (service police complaints): new section 340Q – investigation of concerns raised by whistle-blowers
Power conferred on: the Secretary of State
Power exercised by: regulations
Parliamentary Procedure: affirmative on the first exercise - negative thereafter
Context and purpose
65. As with complaints, conduct matters and death and serious injury matters, the intent is that for the service police context, there will be arrangements in relation to whistle-blowing which make similar provision to the arrangements made for the civilian police in England and Wales set out in Part 2B of the PRA 2002. Whistle blowers will be able to raise concerns with the independent SPCC who will be empowered to investigate. Provision will be made to ensure the anonymity of whistle blowers as well as to ensure that conduct matters and death and serious injury matters raised by whistle blowers are handled under the equivalent of Part 2 of the PRA 2002.
Justification for taking the power
66. The Government considers it appropriate to take a power to make provision, in relation to the SPCC and service police, corresponding to this Part of the PRA 2002– rather than to write it out on the face of primary legislation – as it again intends to mirror Part 2B of the PRA 2002. In addition, the power to make regulations under Part 2B has yet to be exercised.
Justification for the procedure
67. It is the intention of the Government to make provision corresponding to Part 2B and the regulations made under that Part. As with the power in new section 340P, the first exercise of the power will confer functions as well as set out the procedures, and it is considered more appropriate for this first exercise to follow the draft affirmative procedure. However,
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as the regulation-making power in Part 2B itself follows the negative resolution procedure (see section 105 of the PRA 2002) it is considered more appropriate for subsequent exercises of the power to also follow the negative procedure.
Clause 11 (service police complaints): new section 340R – power to make super- complaints
Power conferred on: the Secretary of State
Power exercised by: regulations
Parliamentary Procedure: affirmative on the first exercise - negative thereafter
Context and purpose
68. New section 340R confers a power to make provision corresponding to any made in Part 2A. The purpose of this power is to make similar provision to the arrangements made for the civilian police in relation to super-complaints as set out in Part 2A of the PRA 2002 and regulations made under that Part. Under Part 2A, super-complaints are made to Her Majesty’s Chief Inspector of Constabulary by bodies that have been designated as able to bring such complaints in regulations. The procedure for making super-complaints is also set out in regulations (made under section 29C).
69. Her Majesty's Inspectors of Constabulary, whose primary functions cover police forces in England and Wales, are required to conduct inspections of service police investigations (see section 321A of the Armed Forces Act 2006). It is therefore appropriate that super- complaints about these forces are also made to the Chief Inspector in the same way as they can be made for England and Wales police forces. As with Part 2A, only bodies that are designated will be able to make super-complaints, and the regulations will set out the criteria for designating a body, as well as the procedure to be followed before making a super-complaint, the procedure for making such a complaint, and whether the matter is to be dealt with under the equivalent of Part 2 of the PRA 2002.
Justification for taking the power
70. The MOD considers that it is appropriate to take a power to make provision corresponding to this Part of the PRA 2002 in relation to the service police – rather than to write it out on the face of primary legislation – as it again intends to make similar provision to Part 2A of the PRA 2002.
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Justification for the procedure
71. It is the intention of the Government to make provision corresponding to Part 2A and the regulations made under that Part. As with the power in new section 340P, the first exercise of the power will confer functions as well as set out the procedures, and it is considered more appropriate for this first exercise to follow the draft affirmative procedure. Thereafter the negative procedure is considered to be more appropriate as the regulation-making power in Part 2A itself follows the negative resolution procedure (see section 105 of the PRA 2002).
Clause 13: deprivation orders
Power conferred on: the Secretary of State
Power exercised by: regulations
Parliamentary Procedure: negative
Context and purpose
72. This clause will give commanding officers and service courts the powers to make deprivation orders when sentencing offenders. These can be used to deprive offenders of property used to commit service offences or property the offender intended to use for that purpose. The provisions will also allow a service court to order that any proceeds from the sale of the property are to be used to compensate victims where the offender (and owner of the property) does not have the financial means to pay compensation as part of a service compensation order. This clause is modelled on the powers to make deprivation orders in the civilian context in England and Wales under section 152 of the Sentencing Act 2020.
73. The delegated power in this clause involves the expansion of the existing regulation- making power in section 94 of the AFA 2006 via the insertion of a new section 94A which modifies the power in section 94. Section 94(1) and (2) of the AFA 2006 allows the Secretary of State to make regulations on the disposal of property which is in the possession of service police or a commanding officer as a result of an investigation. The new section 94A(2) and (3) of the AFA 2006 will require those regulations to give anyone claiming to be the owner of property to which a deprivation order relates 6 months from the date of the order to apply to a judicial authority (the Court Martial, the Service Civilian Court or a judge advocate) for an order requiring the property to be returned. Such a claimant must satisfy the judicial authority that they did not consent to the offender’s possession of the property or did not know, or suspect, that the property was to be used
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to commit a service offence or was intended to be used for that purpose. The new section 94A(4) of the AFA 2006 will enable regulations under section 94(1) and (2) of the AFA 2006 to give commanding officers or a judicial authority to make an order for the disposal of the property if no order has been made for its return.
Justification for taking the power
74. The regime governing the return or disposal of property held by commanding officers and service police is currently set out in secondary legislation made under section 94 of the AFA 2006. A practical advantage of using the new section 94A to modify section 94 is that these new provisions on disposal following a deprivation order can be included in regulations made under section 94. This means that all relevant provisions relating to disposal of property following the investigation of a service offence can be dealt with in a single piece of secondary legislation. It also follows the current split between primary and secondary legislation in the AFA 2006.
Justification for the procedure
75. The current regulation-making power under section 94 of the AFA 2006 is subject to the negative procedure. As the powers to make regulations under the new section 94A build on the existing powers under section 94 of that Act the MOD considers that it is appropriate for regulations under the new powers to be subject to the negative procedure.
Clause 14 (driving disqualification): new section 177J(7): power to adjust extension period
Power conferred on: the Secretary of State
Power exercised by: regulations
Parliamentary Procedure: affirmative
Context and purpose
76. This clause introduces a new punishment at Court Martial: a driving disqualification order. The new punishment corresponds to the driving disqualification order available in England and Wales under section 162 of the Sentencing Act 2020. The new delegated power relates to cases where a custodial sentence is also imposed in addition to a driving disqualification order. In such circumstances, a driving disqualification order has no practical effect while an individual is also in custody or detention. The new section 177J of
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the AFA 2006 inserted by this clause therefore provides that the period for which an offender is disqualified is: (a) the period which the court would, apart from the offender being in custody, have specified; and (b) the appropriate extension period (a period designed to account for the period that the offender will be in custody).
77. The appropriate extension period for the various types of custodial sentence is set out in a table in subsection (5) of the new section 177J of the AFA 2006. Paragraph 9 of the table tackles “any other case” in which case the length of the appropriate extension period is “half the custodial sentence imposed”. This reflects the fact that most prisoners in England and Wales are released at the half-way mark of their custodial sentence. There is however a power in section 267 of the Criminal Justice Act 2003 which enables this proportion of a prisoner’s sentence to be changed by order. If that occurred, the power in new section 177J(7) of the AFA 2006 would permit paragraph 9 to be updated to reflect that fact. There is an equivalent power in section 166(7) of the Sentencing Act 2020.
Justification for taking the power
78. This power reflects the existing power in section 166(7) of the Sentencing Act 2020. This is to ensure that, in this respect, the service justice system keeps pace with the civilian sentencing regimes in England and Wales.
Justification for the procedure
79. This power is subject to the affirmative procedure. This follows the procedure which exists for section 166(7) of the Sentencing Act 2020.
Clause 14 (driving disqualification): new section 177M: power to make equivalent provision to Road Traffic Offenders Act 1988
Power conferred on: the Secretary of State
Power exercised by: regulations
Parliamentary Procedure: negative
Context and purpose
80. This power enables the Secretary of State to make provision in relation to the new driving disqualification orders which is equivalent to that made by certain provisions in the Road Traffic Offenders Act 1988 (“RTOA 1988”); subject to such modifications as the Secretary of State considers appropriate. The RTOA 1988 is the main piece of legislation in Great
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Britain on, amongst other things, penalties for road traffic offences. The relevant provisions of the RTOA 1988 deal with the following matters:
a. the effect of disqualification, for example, that a person’s licence is treated as being revoked from the beginning of disqualification; see section 37 of the Act;
b. the suspension of a driving disqualification order pending an appeal; see section 39 of the Act;
c. appellate courts also being able to suspend a driving disqualification order; see section 40 of the Act;
d. the ability of a person subject to a driving disqualification order to apply to remove the disqualification; see section 42 of the Act;
e. disregarding periods of suspension/periods not disqualified, when determining the expiration of the period for which a person is disqualified; see section 43 of the Act;
f. certain supplementary matters, for example, the notification by a court to the Secretary of State that an appeal against disqualification has been allowed; see section 47 of the Act;
g. exemptions from disqualification for certain offences; see section 48 of the Act.
Justification for taking the power
81. The split between provisions set out in the AFA 2006 and the power to make equivalent provision to the RTOA 1988, reflects the approach taken in the Sentencing Act 2020 for driving disqualification orders in England and Wales. Sections 162 to 169 of the Sentencing Act 2020 makes the main provision for such orders in England and Wales. Section 170 of the Sentencing Act 2020 then cross-refers to relevant supplementary provisions of the RTOA 1988. In turn, the Bill makes the main provision for such orders in the service justice context on the face of the Bill; while new section 177M of the AFA 2006 “draws in” the relevant provisions of the RTOA 1988. A power to make equivalent provision is needed – rather than a simple cross-reference – in order to modify the relevant supplementary provisions of the RTOA 1988 for the service justice context. Where equivalent provision is made in this way (with appropriate modifications) it is appropriate to tackle this by way of a power rather than replicating the provision on the face of the primary legislation.
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Justification for the procedure
82. The power is subject to the negative procedure. This is a power to make equivalent provision, with appropriate modifications. The MOD considers that this is an appropriate procedure because of the narrow nature of the power.
Clause 19: power of British overseas territories to apply AFA 2006 etc
Power conferred on: British overseas territory
Power exercised by: British overseas territory
Parliamentary Procedure: none
Context and purpose
83. This provision relates to the powers of British overseas territories to apply the AFA 2006 to armed forces raised in those overseas territories. Such armed forces are separate to UK armed forces. Where such overseas territory forces serve or train alongside UK armed forces, they are automatically subject to service law under the AFA 2006: see section 369 of the AFA 2006. Where such forces are not serving alongside UK armed forces, the law of the British overseas territory itself must supply the legal regime for matters such as the service justice system and service complaints system. Section 357 of the AFA 2006 provides that one option available to a British overseas territory is to apply the AFA 2006. Amongst other things, the effect of doing so is that the law of the British overseas territory is able to make use of the UK service justice system apparatus, including the service police, the Service Prosecuting Authority, the Court Martial and Court Martial Appeal Court. This has the advantage for the British overseas territory of not having to establish its own service justice system infrastructure.
84. This clause addresses a particular issue which has arisen in relation to Gibraltar. Gibraltar law has raised an overseas territory force: the Royal Gibraltar Regiment. The Government of Gibraltar has been working on Gibraltar legislation which would apply the AFA 2006; updating earlier legislation which applied the UK Army Act 1955 (the disciplinary regime for British Army before the AFA 2006). The Government of Gibraltar wishes, in consequence of this Gibraltar legislation, for the UK service justice system to be available for the Royal Gibraltar Regiment. The UK Government and the Government of Gibraltar considers that such Gibraltar legislation can have this effect, based on the current drafting of section 357 of the AFA 2006. However, this clause confirms that this is the case, despite
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the fact that the AFA 2006 no longer extends to Gibraltar (see section 384(2)(b) of the AFA 2006 inserted by section 13(3) AFA 2016).
Justification for taking the power
85. It is clear that British overseas territories would – even without section 357 of the AFA 2006 – be able to make provision in respect of a service justice system for that overseas territory’s armed forces. That British overseas territory legislation could even be modelled on the AFA 2006. The purpose of section 357 of the AFA 2006 is not therefore principally to provide the overseas territory with a power to apply the AFA 2006. It is rather to ensure that, where the overseas territory does apply the AFA 2006, it has the effect of confirming that the UK service justice system is able to operate in accordance with that application.
Justification for the procedure
86. The purpose of section 357 of the AFA 2006 is to enable British overseas territories, in making law of the overseas territory, to apply UK primary legislation; with the effect described above. Because it is a law made by a British overseas territory, it is not appropriate for it to have any form of parliamentary procedure in the UK Parliament.
Clause 20: time limit for appeals in respect of war pensions: Scotland and Northern Ireland:
Power conferred on: Secretary of State
Power exercised by: regulations
Parliamentary Procedure: negative
Context and purpose
87. Prior to the implementation of tribunal reform in 2008 in England and Wales, appeals against decisions of the Secretary of State under the War Pensions Scheme and the Armed Forces Compensation Schemes were heard by Pension Appeal Tribunals, established under the Pension Tribunals Act 1943. This provides that appeals must be brought within twelve months, but that regulations may prescribe circumstances in which an appeal (a late appeal) can be brought no later than twelve months after the expiry of the standard appeal period. In 2008, to replace the Pension Appeal Tribunal, a War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal was created in England and Wales with its own discrete set of procedural rules. These set out the time
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limits for appeals and late appeals (which still match those set out in the Pensions Appeal Tribunals Act 1943) and conditions for bringing an appeal. At present, an appellant may bring a late appeal to the First-tier Tribunal in England and Wales within an extended 12- month period (that is, after the original 12 month period has expired) without any requirement to meet prescribed circumstances: a late appeal is treated as having been made in time if the Secretary of State does not object, and the First-tier Tribunal has discretion to admit such an appeal if an objection is made.
88. At the same time, sections 8(1), 8(3) and 8(5) of the Pensions Appeal Tribunals Act 1943 were amended with effect from 3 November 2008 so that they apply to Scotland and Northern Ireland only. However, no subsequent amendment was made to section 8(5) to allow the regulations made under that provision to align the conditions under which late appeals might be brought with those contained in the new Tribunal rules for England and Wales. The result is that an appellant may only bring an appeal to the Pensions Appeal Tribunal in Scotland or Northern Ireland in the same extended 12-month period where the Tribunal considers that they meet a set of prescribed circumstances.
89. This clause will enable MOD to align the rules on late appeals in Scotland and Northern Ireland with those in England and Wales. This means that the Pension Appeals Tribunal will only be involved in decisions as to whether to admit a late appeal where the Secretary of State objects to the extension.
Justification for taking the power
90. Putting the relevant provisions for Scotland and Northern Ireland into the primary legislation would cause an anomaly with the provision for England and Wales, which is in secondary legislation, and could create issues should changes to the late appeal provisions be required in the future.
Justification for the procedure
91. The extension of the existing regulation-making powers in section 8 is a limited one, intended to enable alignment of the current appeals positions. The negative resolution procedure would allow flexible updating of administrative provisions and is considered appropriate here.
Clause 21: minor amendments – power to combine procedures
92. The MOD draws the Delegated Powers and Regulatory Reform Committee’s attention to the amendment in this clause to section 373(3) of the AFA 2006 (orders, regulations and
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rules). Amongst other things, section 373 deals with the parliamentary procedure for statutory instruments made under the AFA 2006. The effect of this clause is that instruments made subject to the affirmative procedure may include provision which would otherwise be subject to the negative procedure. This amendment is for the purpose of administrative simplification. It ensures MOD has the power to combine in a single instrument provisions which are subject to the affirmative or the negative procedure. Because such instruments would still take the affirmative procedure, there is no question of there being any decrease in parliamentary scrutiny.
Clause 23: commencement and transitional provision
Power conferred on: Secretary of State
Power exercised by: regulations
Parliamentary Procedure: none
Context and purpose
93. This clause enables the Secretary of State to bring into force by regulations the provisions in the Bill, except for the provisions which come into force on Royal assent (these are largely technical provisions) and 2 months after Royal Assent. It also confers the standard powers to appoint different provision for different days and to make transitional, transitory or saving provisions. This power to make transitional, transitory or saving provision is supplemented by paragraph 10 of Schedule 2 to the Bill in relation to reserve commitments. This provision means that transitional provision under commencement regulations can provide for the new flexibilities created by the Bill to extend to reserve commitments entered into before those flexibilities come into effect. Any changes to existing commitments will need the consent of the reservist concerned.
Justification for taking the power
94. The MOD considers that it is appropriate for the Secretary of State to determine the appropriate time to bring provisions of the Bill into force. It is also considered appropriate for the Secretary of State to have the power to make transitional, transitory or saving provision to ensure smooth commencement of the measures contained in the Bill. The particular provision in relation to reserve commitments ensures that it will be possible for the new flexibilities to be made available to those on existing commitments.
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Justification for the procedure
95. As is usual with commencement and transitional powers, regulations made under this clause are not subject to any parliamentary procedure. Parliament has approved the principle of the provisions to be commenced by enacting them; commencement by regulations enables the provisions to be brought into force at the appropriate time.
Clause 25: Extent in the Channel Islands, Isle of Man and British overseas territories
Power conferred on: Her Majesty
Power exercised by: Order in Council
Parliamentary Procedure: None
Context and purpose
96. This clause provides that changes that the Bill makes to AFA 2006:
a. may be extended to the Channel Islands by Order in Council under section 384(1) of the AFA 2006. If such an order is made, it can modify those changes (so that the law of the Channel Islands is not the same as that of the United Kingdom);
b. extend directly (i.e. without the need for an Order in Council) to the Isle of Man and the British overseas territories (except Gibraltar), but an Order in Council may be made under section 384(2) of the AFA 2006 to modify the Act in its application to any of those territories.
97. Similarly, this clause enables changes made by the Bill to the Reserve Forces Act 1996 (“RFA 1996”) to be extended to the Channel Islands or the Isle of Man (with or without modifications) by Order in Council using the power in section 132(3) of the RFA 1996.
Justification for taking the power
98. This clause modifies existing powers to make Orders in Council in relation to the Isle of Man, the Channel Islands and the British overseas territories (except Gibraltar). The clause is designed to ensure that those powers, in both the AFA 2006 and the RFA 1996, are available in relation to that legislation as amended by this Bill. Without making this provision, the existing powers to make Orders in Council would only be available in relation to the unamended versions of the AFA 2006 and the RFA 1996. The fact that the AFA
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2006 extends or can be extended to the Isle of Man, the Channel Islands and the British overseas territories (except Gibraltar) reflects the UK’s continuing defence responsibilities for those places. It is a longstanding feature of armed forces legislation.
Justification for the procedure
99. The power to make such Orders in Council is exercisable by statutory instrument (see section 373(1) of AFA 2006) but such Orders are not subject to Parliamentary procedure (see section 373(4) of AFA 2006). Providing that the making of such Orders is not subject to Parliamentary procedure reflects the particular constitutional status of the Channel Islands, the Isle of Man and the British overseas territories.
Ministry of Defence
14 July 2021
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