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(DPRR/10-12/64) Armed Forces Bill

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(DPRR/10-12/64) Armed Forces Bill (DPRR/10-12/64) Armed Forces Bill Memorandum by the Ministry of Defence for the House of Lords Delegated Powers and Regulatory Reform Committee 1. In this memorandum: a. provisions referred to in bold are provisions relating to powers to make delegated legislation; b. “AFA 2006” means the Armed Forces Act 2006 (c.52). 2. This memorandum describes the purpose and content of the Armed Forces Bill; identifies the provisions of the Bill which confer powers to make delegated legislation; explains the purpose of the delegated power proposed; explains why the matter is to be dealt with in delegated legislation; and explains the nature and justification for any parliamentary procedures which apply. BACKGROUND 3. For constitutional reasons, an Armed Forces Bill is required every five years. The primary purpose of these Bills is to provide the legal basis for the armed forces and their disciplinary system, although they have also contained provisions that fall outside the traditional area of service discipline. The most recent of such Bills prior to this Bill – now the AFA 2006 – introduced a single system of law applying to all service personnel, wherever in the world they operate. OVERVIEW OF THE BILL 4. The Bill provides for the renewal of the current legislation that governs the armed forces – the AFA 2006. 1 5. It provides for the Secretary of State to make an annual report to Parliament about effects of membership, or former membership, of the armed forces, in particular in the fields of healthcare, education and housing. 6. It makes provision relating to the appointment and duties of the heads of the service police forces and for the inspection of those forces; and provides for new arrangements for the management of members of the Ministry of Defence Police (a civilian force established under the Ministry of Defence Police Act 1987 (c.4)). 7. It provides new powers to judge advocates (civilian judges appointed by the Lord Chancellor) to authorise the entry and search of certain residential premises and to grant access to excluded or special procedure material. 8. It provides for a new testing regime for alcohol and drugs of persons subject to service law and civilians subject to service discipline. 9. It makes provision relating to the punishment of service personnel and to service court orders. 10. It makes provision for the amendment of the AFA 2006 in relation to: the place of sitting of the Service Civilian Court (a court which may try service offences committed by civilians who were subject to service discipline at the time of the offence); administrative reduction in rank or rate; service complaint panels (panels with delegated powers to act on behalf of the Defence Council and hear a service person’s complaint); persons eligible to act on behalf of the Director of Service Prosecutions; civilians subject to service discipline; and, prisoners of war. 11. Finally, it makes provision for the amendment to and repeal of other legislation, including the Military Lands Act 1900 (c.56), the Military Lands Act 1892 (c.43), the Visiting Forces Act 1952 (c.67), the Naval Medical Compassionate Fund Act 1915 (c.28) and the Reserve Forces Act 1996 (c.14) and enabling judge advocates to sit in certain civilian courts. 2 PROVISIONS FOR DELEGATED LEGISLATION 12. It is envisaged that all of the powers conferred upon the Secretary of State detailed below will be exercised by the Secretary of State for Defence. All of the powers of the Secretary of State to make an order, regulations or rules are exercisable by statutory instrument, with the exception of the power in clause 28. 13. Certain powers are conferred on the Defence Council. The Defence Council is a body, established by Letters Patent, to exercise certain prerogative powers of command and administration in relation to the armed forces. The Defence Council also has certain statutory functions. One of the powers conferred on the Defence Council to make regulations (under clause 11 and the new section 93A(5) of the AFA 2006) is not exercisable by statutory instrument. This is a case where the regulations will deal with a matter of detail of a kind which is administrative rather than legislative. In the remaining cases, the powers conferred on the Defence Council to make regulations are exercisable by statutory instrument and this is provided for in section 373(2) of the AFA 2006 as amended by paragraph 14 of Schedule 4 to this Bill. 14. There is also reference to the issue of a code of practice, provision by Royal Warrant and provision related to commencement and extent which are included in the memorandum for the sake of completeness. DURATION OF THE ARMED FORCES ACT 2006 Clause 1: Duration of the Armed Forces Act 2006 Power conferred on: Her Majesty the Queen Power exercisable by: Order in Council Parliamentary procedure: Affirmative resolution 15. Clause 1 provides for the substitution of a new section 382 (Duration of this Act) in the AFA 2006. Like the existing section 382, the new section 382 confers a power to make an Order in Council extending the duration of the AFA 2006 by up to one year from the date on which it would otherwise expire, but not beyond the end of 3 2016. A requirement for renewal has been a feature of Services legislation primarily because of the provision of the Bill of Rights 1688 that a standing Army in time of peace is only lawful with the consent of Parliament. Since 1971, successive Armed Forces Acts have applied similar time limits to the legislation governing all of the Services. As previously, this matter is to be dealt with in delegated legislation to avoid the need for a new Act every year. The power, as before, is subject to the affirmative resolution procedure. SERVICE POLICE AND MINISTRY OF DEFENCE POLICE Clause 6: Ministry of Defence Police: performance regulations Power conferred on: The Secretary of State Power exercisable by: Regulations by Statutory Instrument Parliamentary procedure: Negative resolution 16. Under the Ministry of Defence Police Act 1987, the Secretary of State has the power to make regulations with respect to the conduct of members of the Ministry of Defence Police. The Ministry of Defence Police (Conduct) Regulations 2009 (S.I. 2009/3069) are the current such regulations and, in broad terms, mirror the equivalent regulations for the civil police, except that the 2009 Regulations only govern conduct and not efficiency and effectiveness. Clause 6 provides for section 3A (Regulations relating to disciplinary matters) of the 1987 Act to be amended so that the Secretary of State may make regulations with respect to efficiency and effectiveness of members of the Ministry of Defence Police. Given that the regulation of the conduct of the Ministry of Defence Police is already dealt with in delegated legislation, it is appropriate that the regulation of their efficiency and effectiveness also be dealt with in delegated legislation. A statutory instrument made under section 3A will remain subject to the negative resolution procedure. POWERS OF ENTRY, SEARCH AND SEIZURE Clause 8: Power to make provision about access to excluded material etc Power conferred on: The Secretary of State Power exercisable by: Order by Statutory Instrument 4 Parliamentary procedure: Negative resolution 17. Section 86 (Power of judge advocate to authorise entry and search) of the AFA 2006 confers a power on the Secretary of State, by order, to make provision enabling a service policeman to obtain access to excluded material or special procedure material on certain residential premises (“relevant residential premises”). Clause 8 provides for an amendment of section 86 extending the power so that provision may also be made enabling a service policeman to obtain access to material (other than items subject to legal privilege) on premises which are not relevant residential premises. The purpose of this extension is to enable a judge advocate (broadly speaking a judge in a service court) to grant a production order in respect of such material. The matter is to be dealt with in delegated legislation because access to material which is on relevant residential premises is already the subject of delegated legislation. The power will continue to be subject to negative resolution procedure because, even as extended, the powers of a judge advocate will be no wider than those of a judge under Schedule 1 to the Police and Criminal Evidence Act 1984 (c.60) and will, in fact, be narrower because a judge advocate will not be able to issue a warrant for the search of premises other than relevant residential premises. ALCOHOL AND DRUGS 18. Clauses 9 to 11 provide for a new testing regime of persons subject to service law and civilians subject to service discipline for alcohol and drugs derived from, but not identical to, that provided in the Railways and Transport Safety Act 2003 (c.20). Clause 10: Exceeding alcohol limit for safety-critical duties Power conferred on: The Defence Council Power exercisable by: Regulations by Statutory Instrument Parliamentary procedure: Affirmative resolution 19. Clause 10 inserts a new section 20A (Exceeding alcohol limit for safety- critical duties) into the AFA 2006 to provide that a person subject to service law commits an offence if the proportion of alcohol in the person’s breath, blood or urine exceeds the relevant limit at a time when the person either: (a) is performing, or 5 purporting to perform, a safety-critical duty; or (b) might reasonably expect to be called on to perform such a duty. The maximum penalty for the offence is prescribed by new section 20A(5) (two years’ imprisonment). 20. New section 20A(2) provides that “a safety-critical duty” means a duty specified, or of a description specified, by regulations made by the Defence Council; but a duty or description may only be specified if performing that duty (or a duty of that description) with ability impaired by alcohol would result in a risk of death, serious injury, serious damage to property or serious environmental harm.
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