(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.

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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. New section 20A(3) provides that “the relevant limit”, in relation to a duty specified or of a description specified by the regulations, means the limit prescribed by regulations made by the Defence Council.

21. The reason why the safety-critical duties are to be specified in delegated legislation is that the range of dangerous activities carried on by the armed forces is much greater than the activities that it was thought necessary to cover in the civilian legislation (the Railways and Transport Safety Act 2003) and may change over time, with the development of new military weapons and systems. Views may also change about which activities need to have an alcohol limit applied to them. This is regarded as an issue requiring the specific input of the chain of command, hence the involvement of the Defence Council, which is the highest body within the Ministry of Defence responsible for the command and administration of the armed forces. Therefore, it needs to be possible to alter the duties to which the offence applies in the light of changing circumstances and developing systems. However, the power to specify is restricted in that a duty can only be specified if it carries one of the four specified risks.

22. If the safety-critical duties are to be specified in delegated legislation, it seems appropriate that the alcohol limit that applies to those duties (or to any particular class of the duties) should also be prescribed by delegated legislation. The wording of new section 20A(3), together with section 373(5)(b) (power to make different provision for different cases) of the AFA 2006, will allow different limits to be prescribed in relation to different duties or different classes of duties.

6 23. As the duties specified and the levels of alcohol prescribed will define the scope of an offence, it is considered appropriate that the regulations should be made by statutory instrument subject to the affirmative resolution procedure. This is provided for by the amendment of section 373(3)(d) of the AFA 2006 by paragraph 14(3) of Schedule 4 to the Bill.

Clause 11: Testing for alcohol and drugs on suspicion of offence Commanding officer’s power to require preliminary tests Power conferred on: The Defence Council Power exercisable by: Regulations Parliamentary procedure: None

24. Clause 11 inserts a new section 93A (Commanding officer’s power to require preliminary tests) into the AFA 2006 to provide that the commanding officer may require a person subject to service law, or a civilian subject to service discipline, to co-operate with a preliminary breath test, a preliminary impairment test or a preliminary drug test. The commanding officer must have reasonable cause to believe is committing or has committed certain specified offences. New section 93A(6) provides that failure, without reasonable excuse, to comply with such a requirement is an offence. New section 93A(5) provides that the Defence Council may by regulations provide for the delegation by a commanding officer of his functions under the new section 93A.

25. This power for the commanding officer to delegate functions is necessary because a person may need to be required to take a test urgently and the commanding officer may not always be available. The power for the Defence Council to make regulations will allow flexibility as to how the delegation of functions is achieved and is consistent with the Defence Council power in section 306(6) of the AFA 2006 for the delegation of functions with respect to testing for alcohol and drugs after a serious incident. Like regulations made under section 306(6), regulations made under the new section 93A(5) are not subject to parliamentary procedure.

Preliminary impairment test Power conferred on: The Provost Marshals

7 Power exercisable by: Code of practice Parliamentary procedure: None

26. Each of the Services has its own service police who are themselves members of the armed forces. The officers of the service police are called “provost officers” and are headed by the Provost Marshal of the Service in question. Clause 11 inserts a new section 93C (Preliminary impairment test) into the AFA 2006 to provide that the Provost Marshals of each of the service police forces (acting jointly) must issue, and may from time to time revise, a code of practice about: (a) the kind of task that may be specified for the purposes of a preliminary impairment test; (b) the kind of observation of physical state that may be made in the course of a preliminary impairment test; (c) the way in which a preliminary impairment test should be administered; and (d) the inferences that may be drawn from observations made in the course of a preliminary impairment test. New section 93C(5) provides that a service policeman administering a preliminary impairment test must have regard to the code of practice. New section 93C(6) provides that a service policeman may administer a preliminary impairment test only if the service policeman is approved for that purpose by a Provost Marshal, and new section 93C(7) provides that the code of practice may include provision about the giving of approval to service policemen and, in particular, the kind of training that a service policeman should have undergone, or the kind of qualification that a service policeman should possess, before being approved. The code of practice is not subject to parliamentary procedure but the effect of the clause is included in this memorandum for the sake of completeness.

Further provision about specimens under section 93E Power conferred on: The Defence Council Power exercisable by: Regulations by Statutory Instrument Parliamentary procedure: Negative resolution

27. Clause 11 also inserts new sections 93E (Provision of specimens for analysis) and 93F (Further provision about specimens under section 93E) into the AFA 2006. New section 93E(2) provides that in the course of investigating certain offences a service policeman may require a person (a) to provide two specimens of breath for analysis; (b) to provide a specimen of blood or urine for a laboratory test. New section

8 93F(1) provides that, where two specimens of breath are provided by a person in pursuance of section 93E, the one with the lower proportion of alcohol in the breath is to be used and the other is to be disregarded. New section 93F(2) provides that if the specimen with the lower proportion of alcohol contains no more than a prescribed proportion of alcohol, the person who provided it may claim that it should be replaced by such a specimen of blood or urine as may be required under section 93E. New section 93F(4) provides that “prescribed” in subsection (2) means prescribed by regulations made by the Defence Council and that such regulations may prescribe different proportions of alcohol in relation to different kinds of offence. This is appropriate because the “relevant limits” for offences under new section 20A will be in secondary legislation. Further, it is intended that the prescribed proportion of alcohol will broadly reflect the any changes to the prescriptions of proportions of alcohol, where a claim can be made that a breath specimen be replaced by a specimen of blood or urine, in the civilian legislation made by regulations made under sections 81(2) (regulations amending prescribed limit) and 93(4) (regulations amending prescribed limit) of the Railways and Transport Safety Act 2003 and section 8(3) (Choice of specimens of breath) of the Road Traffic Act 1988 (c.52) (as modified by section 96 (Specimens, &c.) of the Railways and Transport Safety Act 2003), which will themselves already have been subject to the close scrutiny of the affirmative resolution procedure. Because of this, it is considered appropriate that these Defence Council regulations should be made by statutory instrument subject only to the negative resolution procedure. This is provided for by an amendment of section 373(2) of the AFA 2006 by paragraph 14(2) of Schedule 4 to the Bill.

PUNISHMENTS AND OTHER COURT ORDERS

Clause 16: Enforcement of financial penalties Power conferred on: The Secretary of State Power exercisable by: Regulations by Statutory Instrument Parliamentary procedure: Negative resolution

28. Clause 16 provides for the enforcement of financial penalties imposed by the Court Martial and inserts new sections 269A (Fines: fixing of term of imprisonment

9 for default) and 269B (Service compensation orders: power to set maximum term of imprisonment for default) into the AFA 2006.

29. New section 269A requires the Court Martial, when imposing a fine on a person aged 18 or over, to fix the term of imprisonment which may be imposed if the fine is not paid. An order under the new section 269A will take effect only if the fine is registered by a civil court in the United Kingdom or the Isle of Man, in accordance with regulations made under section 322 (Financial penalty enforcement orders) of the AFA 2006. Section 322 confers a power to make regulations providing for the enforcement by civilian courts of financial penalties imposed under the AFA 2006. Clause 16(2) amends section 322 so that the regulations may provide for the way in which the civil court is to implement an order made under section 269A.

30. New section 269B empowers the Court Martial, when making a service compensation order against a person aged 18 or over, to specify the maximum term of imprisonment which may be imposed if the compensation is not paid. The court may do so if it thinks that the maximum term which could otherwise be imposed by a magistrates’ court in England and Wales (following registration of the compensation order in accordance with regulations under section 322) is insufficient. As in the case of an order under section 269A, an order under section 269B will take effect only if the fine is registered by a civil court, and the amendment made to section 322 by clause 16(2) enables the regulations to provide for the effect of the order on the powers of the civil court.

31. The effect of orders made under section 269A and 269B is to be dealt with in delegated legislation because the regulation of the effect of such an order will need to sit alongside the regulation of enforcement by civilian courts of financial penalties generally. As the effect of the regulations will be administrative in nature and because the proposed amendment is purely consequential on the insertion of sections 269A and 269B, it is considered that it is suitable for the negative resolution procedure to continue to apply to the section 322 regulation-making power.

Clause 17: Service sexual offences prevention orders Extended prohibitions orders: appeals

10 Power conferred on: The Secretary of State Power exercisable by: Rules by Statutory Instrument Parliamentary procedure: Affirmative resolution

32. Clause 17 inserts new sections 232A to 232G into the AFA 2006 to extend the current powers of service courts to make sexual offences prevention orders contained in Part 2 of the Sexual Offences Act 2003 (c.42), so that they can make orders for the protection of members of the service community outside the United Kingdom. Such orders impose prohibitions on what the person subject to it can do (for example, a prohibition on going to a person’s house). The new section 232E (Extended prohibitions orders) provides that where: a. a sexual offences prevention order under Part 2 of the Sexual Offences Act 2003 (“the principal order”) is in existence in respect of a member of the regular forces, a member of the reserve forces or a civilian subject to service discipline, and b. there are members of the service community outside the United Kingdom who would, if in the United Kingdom, be protected by the principal order, the Court Martial must make an extended prohibitions order. The extended prohibitions order will extend the prohibitions contained in the principal order so that they apply for the protection of a person or persons within the service community outside the United Kingdom for whose protection the prohibitions under the principal order would apply, but for the fact that they are not in the United Kingdom. New section 232F (Extended prohibitions orders: appeals) provides a right of appeal to the Judge Advocate General against the making of an order under section 232E and confers on the Secretary of State a power to make rules about such appeals. In particular, the rules may make provision: (a) specifying the grounds on which an appeal may be brought; (b) with respect to the appeal procedure, such as the time limits for making an application to appeal and the form of the application; and, (c) with respect to the powers of the Judge Advocate General in relation to an appeal. This matter is to be dealt with in delegated legislation as the rules will be comprehensive and it is not desirable to have such detailed procedural provisions on the face of the Bill. It is also to provide flexibility as to the mandated procedure, which may have to be updated in line with development in the service justice system. Given that the rules will set out both the practice and procedure which will apply to

11 appeals and the powers of the Judge Advocate General in relation to them, it is considered that the affirmative resolution procedure is appropriate. This will be in line with the procedure that applies under section 373(3) (orders, regulations and rules subject to affirmative resolution procedure) of the AFA 2006 to a similar order- making power under section 89(2) (provision with respect to review by judge advocate of certain searches) of the AFA 2006. Affirmative resolution is provided for by an amendment to section 373(3)(g) of the AFAZ 2006 by paragraph 14(4) of Schedule 4 to the Bill.

MISCELLANEOUS AMENDMENTS OF ARMED FORCES ACT 2006

Clause 20: Service complaint panels

33. Section 334 (Redress of individual grievances: service complaints) of the AFA 2006 provides that a person who is, or who has previously been, subject to service law may make a complaint if he thinks himself wronged in a matter relating to his service. It also requires the Defence Council to provide by regulations with respect to the procedure for dealing with such a complaint, including its referral to the Defence Council. Under section 335(1) (Service complaints: role of Defence Council and service complaints panels) of the AFA 2006 the Defence Council has power to delegate to a service complaint panel all or any of its functions in relation to a complaint.

34. Clause 20 is in response to a decision of the European Court of Human Rights in Crompton v UK (2009) (Judgment 27 October 2009; no. 42509/05) as to the compliance with Article 6 of the Convention (determination of civil rights by an independent and impartial tribunal) of the redress of complaints process. The European Court held that, on the facts of the case, the existing redress process was sufficient but indicated that in certain circumstances it would be necessary to provide for decision by an independent fact-finding body to provide compliance with Article 6.

35. On the basis of the statements made by the European Court in Crompton, it is not yet easy to be sure how the European Court’s approach would apply to different

12 cases, or to formulate confidently rules as to when an independent fact-finding tribunal will be required. Moreover the decision in Crompton involved a change from, or at least as development of, previous European Court decisions, and it is likely that there will be further developments in its jurisprudence. The purpose of the provisions in the Bill is accordingly to allow decisions to be taken on a case by case basis, but with powers of subordinate legislation to allow general rules to be laid down as the application of Article 6 becomes clearer.

Requirement to appoint independent members Power conferred on: The Secretary of State Power exercisable by: Regulations by Statutory Instrument Parliamentary procedure: Affirmative resolution

36. Clause 20(6) amends the existing power in section 336(6) (Composition and procedure of service complaint panels) of the AFA 2006, under which the Secretary of State may by regulations require that, if the Defence Council makes a delegation to a panel, that panel must include one independent member. As amended, the power will allow the Secretary of State to require, where the Defence Council decides to delegate complaint functions to a panel, that more than one, and even a majority or all of the panel, must be independent or that particular functions must be carried out by independent members. Section 336(6) is already subject to affirmative resolution procedure, and it is considered appropriate for it to continue to be so.

Requirement to delegate to service complaint panel Power conferred on: The Secretary of State Power exercisable by: Regulations by Statutory Instrument Parliamentary procedure: Affirmative resolution

37. Clause 20(7) inserts a new section 336A (Requirement to delegate to service complaint panel) into the AFA 2006. The new section 336A(1) provides that the Secretary of State may by regulations require the Defence Council, for any service complaint of a prescribed description, to delegate to a panel all or any of its functions under section 334. But the regulations may only require delegation to a panel where they also either require a prescribed majority, or all, of the panel to be independent

13 members, or require prescribed functions to be carried out by independent members of the panel. In the new section 336A “prescribed” means prescribed by regulations made under that section. In view of the existing requirement for regulations requiring an independent member to be subject to affirmative resolution, it is considered appropriate to provide for the same procedure where the Secretary of State may require delegation and independent members. This is provided for by an amendment to section 373(3)(d) of the AFA 2006 by paragraph 14(3) of Schedule 4 to the Bill.

Clause 23: Protected prisoners of war Power to make provision in relation to protected prisoners of war Power conferred on: Her Majesty the Queen Power exercisable by: Royal Warrant Parliamentary procedure: None

38. Clause 23 inserts a new section 371A (Power to make provision in relation to protected prisoners of war) into the AFA 2006. Her Majesty has power under the prerogative to make provision with respect to protected prisoners of war, and there is an existing Royal Warrant for this purpose. The prerogative relates here to war and emergency and the obligation in particular to meet the United Kingdom’s obligations under the Geneva Convention Relative to the Treatment of Prisoners of War 1949. The purpose of clause 23 is to ensure that the provision made by Her Majesty can cover any aspect of the Services’ system of justice, and in particular to allow her to extend to certain institutions whose powers and functions are defined in AFA 2006 (such as the Court Martial) powers and functions in respect of protected prisoners of war. The clause accordingly touches on matters that are dealt with under the prerogative but does not limit the prerogative in any way. Under the new section 371A(3), the Secretary of State must publish the Royal Warrant in such a way as appears to the Secretary of State to be appropriate. The Royal Warrant is not subject to parliamentary procedure but the effect of the clause is included in this memorandum for the sake of completeness.

OTHER AMENDMENTS AND REPEALS

14 Clause 28: Call out of reserve forces Power to make order authorising calling out Power conferred on: The Secretary of State Power exercisable by: Order Parliamentary procedure: None

39. Clause 28 amends the Reserve Forces Act 1996. The obligations of members of a reserve force to attend for duty are covered mainly by the 1996 Act. These obligations include a duty to serve if “called out” in accordance with an order made under the 1996 Act. Clause 28 adds new section 56(1A) to the 1996 Act, which extends the Secretary of State’s power to call out reservists. The making of any call- out order by the Secretary of State under section 56 of the 1996 Act is not subject to parliamentary procedure but must be reported to each House of Parliament.

Clause 29: Minor amendments of service legislation Powers to make rules relating to summary hearings etc Power conferred on: The Secretary of State Power exercisable by: Rules by Statutory Instrument Parliamentary procedure: Negative resolution

40. Clause 29 and paragraph 13 of Schedule 3 amend section 153(2) (powers to make rules relating to summary hearings etc) of the AFA 2006. Section 153(2) identifies particular matters for which summary hearings rules may provide. The amendments provide so that the rules may make provision not only as to applications for extended powers, or permission to hear a charge within section 54 (Charges which may be heard summarily only with permission or by senior officer) of the AFA 2006, but also as to the grant of such powers or permission. The purpose is to make it clear that the rules can, for example, provide for a grant of such powers or permission to lapse in specified circumstances. Summary hearing rules are already provided for in delegated legislation and this amendment does not alter the appropriateness of that. As this provision is clarificatory only, it is considered that it is suitable for the negative resolution procedure to continue to apply to the section 153 rule-making power.

15 SUPPLEMENTARY

Clause 32: Commencement Power conferred on: The Secretary of State Power exercisable by: Order by Statutory Instrument Parliamentary procedure: None

41. As is the practice in primary legislation, the Secretary of State has power (under clause 32) to make orders providing for provisions of this Bill to be brought into force on a day or days appointed. Only those provisions of the Bill specified in clause 32(1) will be brought into force on Royal Assent. Clause 28 will be brought into force two months after Royal Assent. The power is the normal commencement procedure, being exercisable by statutory instrument but without being subject to parliamentary procedure.

42. The clause also provides for the commencement orders to contain transitional, transitory and saving provision. Clause 32(5) makes particular provision for transitionals related to the coming into force of the new Schedule 3A to the AFA 2006. That Schedule is provided for by clause 14 of, and Schedule 1 to, the Bill. The new Schedule affects the powers of punishment of the Court Martial, where an accused elects trial by that court instead of by his commanding officer. Those powers are to be decided by reference to the punishments that the commanding officer could have awarded. But, where the election is before commencement and the trial afterwards, transitional provision will be needed as to what powers of punishment it is assumed the commanding officer would have had. This is because the Bill itself (for example in clause 12) affects a commanding officer’s powers.

Clause 33: Extent Power conferred on: Her Majesty Power exercisable by: Order in Council Parliamentary procedure: None

16 43. The clause provides for Her Majesty by Order in Council to extend to the Channel Islands, the Isle of Man and British overseas territories any provisions of the Bill, with any modifications provided in the Order in Council. It also provides for extension to them by Order in Council under the Visiting Forces Act 1952 of the new section 9A of that Act, added by clause 25 of the Bill. The Orders in Council are not subject to Parliamentary procedure. They are an exercise of the prerogative and are mentioned only for completeness.

Ministry of Defence 6 July 2011

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