On 11 February 2021, the House of Lords is due to debate a motion to approve the Armed Forces Act (Continuation) Order 2021. The instrument is subject to the draft affirmative procedure, meaning both Houses must approve it before it can come into force.
Background: Armed Forces Act 2006
The Armed Forces Act 2006 came into force on 31 October 2009. It established a single system of service law which applied to personnel of the Royal Navy, British army and Royal Air Force, wherever they were operating. The act covered areas such as:
- powers of the service police;
- jurisdiction and powers of commanding officers and of the service courts, including the court martial;
- provision for enlistment;
- pay; and
- redress of complaints.
The act must be renewed annually, based on the assertion in the Bill of Rights 1688 that the armed forces “may not be maintained within the Kingdom without the consent of Parliament”.
The Armed Forces Bill 2019–21 is due to receive second reading in the House of Commons on 8 February 2021. This bill would renew the 2006 act for a further five years, as well as introduce a range of other measures, such as the establishment of a Service Complaints Commissioner and a legal duty to have due regard to the principles of the Armed Forces Covenant.
Armed Forces Act (Continuation) Order 2021
This statutory instrument (SI) renews the Armed Forces Act 2006 until 31 December 2021.
If this instrument is not passed, and the 2006 act is allowed to expire, the explanatory memorandum states that the effect would be to “end the provisions which are necessary to maintain the armed forces as disciplined bodies”.
It goes on to explain:
The obligation of members of the armed forces is essentially a duty to obey lawful commands. They have no contracts of employment, and so no duties as employees. Without the 2006 Act, the powers and procedures under which the duty to obey lawful commands is enforced would no longer have effect. Commanding officers and the Court Martial would have no powers of punishment in respect of a failure to obey a lawful command or any other form of disciplinary or criminal misconduct. Members of the armed forces would still owe allegiance to Her Majesty, but the power of enforcement would be removed.
The instrument was considered by the Joint Committee on Statutory Instruments on 27 January 2021 and was not reported on. It was also considered by the Secondary Legislation Scrutiny Committee on 2 February 2021 and no concerns were raised.
A debate on the instrument is scheduled in the House of Commons for 8 February 2021.
What issues have been raised previously?
During the debate to approve the Armed Forces Act (Continuation) Order 2020 in Grand Committee of the House of Lords on 16 March 2020, members of the House of Lords raised a number of broader defence-related issues.
During the debate, Lord Craig of Radley (Crossbench), a former Chief of the Defence Staff, requested an update on the Government’s plans regarding combat immunity. Since this time, the Government has brought forward the Overseas Operations (Service Personnel and Veterans) Bill. It is currently awaiting a date for committee stage in the House of Lords.
Integrated security and defence review
Members also asked whether the coronavirus pandemic might delay the integrated security and defence review. The review was initially expected to be published in autumn 2020, but has since been delayed to spring 2021.
Service Justice System review
During the debate, Lord Tunnicliffe, Shadow Defence Spokesperson, spoke about the Service Justice System (SJR) review, completed in March 2019. He specifically raised the recommendation in the SJR that certain offences such as murder, manslaughter and rape should not be included under court martial jurisdiction. The new Armed Forces Bill 2019–21 makes some changes to the service justice system, but does not include any changes to jurisdiction.
- House of Lords Library, ‘Global Britain and the British Armed Forces’, 15 January 2021
Cover image by Diego González on Unsplash.