Armed Forces Bill

Michael Fallon Excerpts

Thursday 15th October 2015 Commons Chamber

[The Secretary of State for Defence (Michael Fallon)]

I beg to move, That the Bill be now read a Second time.

The introduction of an Armed Forces Bill is always a significant occasion for defence. It matters in particular for three reasons. The first reason is its constitutional significance. We are renewing the legislation necessary for the armed forces to exist as disciplined forces. That legislation is currently the Armed Forces Act 2006, which provides the system of command, discipline and justice for the armed forces. It covers matters such as the powers of commanding officers to punish disciplinary or criminal misconduct, the powers of courts martial and the powers of the service police. The 2006 Act confers powers and sets out procedures to enforce the duty of members of the armed forces to obey lawful commands.

Since the Bill of Rights in 1688, the legislation making the provision necessary for the Army to exist as a disciplined force—and, more recently, the legislation for the Royal Navy and the Royal Air Force—has required regular renewal by Act of Parliament. Without this Bill, the Armed Forces Act 2006 could not continue in force beyond the end of 2016. That reminds us that ultimate control over the system under which the armed forces are maintained resides not with the Executive, but with Parliament.

Secondly, this occasion is sufficiently rare in the lifetime of a Parliament to prompt us to reflect on the progress made since the last such Act, the Armed Forces Act 2011. The centrepiece of the last Act, the requirement to report on the armed forces covenant, remains more relevant than ever. The covenant has already made a huge difference to the lives of serving and ex-service personnel. In the past few years, we have seen not only the Government, but all 407 local authorities and more than 700 businesses, large and small, come together to make sure that our personnel get a fairer deal as a result of their service to our country.

[Mrs Madeleine Moon (Bridgend) (Lab)]

We have perhaps been somewhat neglectful of armed forces personnel when they cease to be serving and become veterans. Does the Secretary of State agree that we must place a greater priority on ensuring that veterans have ongoing help and support because of the difficulties that many of them may still face as a result of their service in Iraq and Afghanistan?

[Michael Fallon]

I certainly do agree with that. This work is ongoing and is not yet done. We will continue to try to make progress. As the hon. Lady knows, we have implemented a number of reviews, not least Lord Ashcroft’s review of the mental health services that are available to veterans.

I assure the House that our commitment to the covenant remains unshakeable. Today, we are launching a credit union for armed forces personnel. By paying a regular amount of their salary directly into the credit union, they will be able to avoid the struggle for credit approval and the siren call of the payday lenders.

Thirdly and finally, the Bill gives us the opportunity to ensure that the 2006 Act remains fit for purpose for the next five years. The first clause keeps the 2006 Act in force beyond the end of 2016; provides for the continuation of the 2006 Act for a year from the date on which this Bill receives Royal Assent; and provides for renewal thereafter by Order in Council, for up to a year at a time, until the end of 2021. That will give Parliament a regular opportunity to debate the systems of the armed forces for command, discipline and justice.

Clauses 2 to 6 modernise and strengthen the service justice system by making sensible and proportionate changes to the existing provisions. I will take each of those clauses, very briefly, in turn.

Clause 2, on post-accident testing for alcohol and drugs, deals with the situation whereby a commanding officer may require a member of the armed forces or a civilian who is subject to service discipline to co-operate in a preliminary test for alcohol or drugs only when he or she suspects that an offence has been committed. The clause extends those circumstances by providing for post-accident preliminary testing without the need for suspicion that the person being tested has committed an offence. The new powers to require co-operation with tests will apply only after accidents involving aircraft or ships or other serious accidents. They are derived from, although not identical to, those in the railway and transport safety legislation under which civilians are required to co-operate with tests for alcohol and drugs.

Clauses 3 to 5 simplify the process of investigation and charging of criminal and disciplinary offences under the 2006 Act. The commanding officer rightly deals with 90% of cases in the service justice system, and that will not change. The remaining 10% of cases are those that the commanding officer does not have the power to hear, which involve offences such as perverting the course of justice and sexual assault. Some cases that cannot be dealt with by the commanding officer have to be referred by the investigating service police to the commanding officer and then by the commanding officer to the director of service prosecutions for a decision. That is an unnecessarily complex process.

Clause 3 provides for the service police to refer straight to the director of service prosecutions in any case where there is sufficient evidence to charge for an offence that the commanding officer cannot deal with on his own. That brings the service justice system into line with the civilian system.

[Bob Stewart (Beckenham) (Con)]

Does that mean that the commanding officer is taken out of the loop entirely in cases concerning soldiers, sailors or airmen who are his or her responsibility?

[Michael Fallon]

No, because the commanding officer will be kept informed about the investigation and the stage it has got to. They are not being removed from the process; we are merely simplifying the procedure and shortening it so that the matter does not have to be referred automatically to the commanding officer and then back to the director of service prosecutions.

Clause 3 also deals with linked cases such as separate offences that occur during the same incident. Some cases may need to be sent to a commanding officer, even though they are connected to a case that has been sent to the director of service prosecutions, and that can result in separate decisions on whether to prosecute, and separate trials. Clause 3 allows the service police to refer a case to the director of service prosecutions if, after consultation, they consider it appropriate to do so because of a connection with another case that has also been referred to that director.

Clause 4 clarifies the procedure for the referral of those linked cases from the commanding officer to the director of service prosecutions, and clause 5 allows the director to bring charges. Currently, when the director of service prosecutions decides that a charge must be brought, they must direct the suspect’s commanding officer to bring that charge. Clause 5 allows the director to bring that charge, just as the Crown Prosecution Service brings charges in the civilian criminal justice system.

Clause 6 increases the range of sentencing options available to the court martial. Civilian courts are currently able to suspend sentences of imprisonment for up to 24 months, but service courts can suspend them for only 12 months. We would like courts martial to be given greater flexibility to vary the deterrent effect of service detention. In some cases it is right for suspended sentences to allow continued service alongside rehabilitation activities. The clause simply corrects the anomaly by giving courts martial the ability to suspend sentences of service detention for up to 24 months.

Clauses 7 and 8 give the director of service prosecutions power to give offenders immunity from prosecution, or an undertaking that the information they provide will not be used against them, in return for assistance that the offender may give to an investigator or prosecutor.

[Dr Andrew Murrison (South West Wiltshire) (Con)]

Will my right hon. Friend say what service offences he has in mind for immunity from prosecution? Will he reassure the House that that does not involve any form of plea bargaining, and say whether there are civilian equivalents of the kind of offences that he has in mind?

[Michael Fallon]

Only the most serious cases would involve that kind of immunity—perhaps the Minister will provide my hon. Friend with more examples of what such cases might be when he winds up the debate. These are cases where the evidence from a witness or defendant could be crucial, but where fears about self-incrimination stop someone coming forward and providing essential information.

In the civilian criminal justice system prosecutors such as the Director of Public Prosecutions have statutory powers to offer immunity and restrictions on the use of evidence, but the director of service prosecutions in the service justice system does not. That damages their ability to prosecute the most serious cases, because it may be necessary to rely on evidence from individuals who may not be willing to come forward and give evidence without conditional immunity, or an undertaking that that information will not be used against them. These clauses closely follow those in the Serious Organised Crime and Police Act 2005 that apply to the civilian criminal justice system.

I assure my hon. Friend that as in the civilian criminal justice system, the intention is for immunity and undertakings not to use information to be offered only in the most serious circumstances for those who are found, after proper investigation, to have fallen short of the high standards that we set.

Clause 13 brings the Armed Forces Act 2006 back into force in the Isle of Man and British overseas territories except for Gibraltar. Under United Kingdom law, the 2006 Act has always applied to members of the armed forces, wherever in the world they are operating, and that will remain the case. That means that a member of the armed forces commits an offence under UK law if they do something in another jurisdiction which, had they done it in England or Wales, would have been a criminal offence.

In addition, the 2006 Act originally formed part of the law of the Isle of Man and the British overseas territories. However, the Act expired in those jurisdictions in 2011. Clause 13 and the schedule to the Bill revive the Act in those jurisdictions so that, as it currently has effect in the UK, it will also be in force there. That ensures that things that members of the armed forces might do under the 2006 Act in those jurisdictions, such as the exercise of service police powers of arrest or search, would be lawful there not only as a matter of UK law but as a matter of the local law. It also ensures that the civilian authorities within those jurisdictions can do things under the 2006 Act which they might not otherwise have powers to do under the local law, such as the arrest of a person suspected of a service offence under a warrant issued by a judge advocate.

An exception is being made for Gibraltar. This is because we are currently consulting the Government of Gibraltar on how best to extend the provisions of the 2006 Act—and, therefore, of the Bill—to that territory.

Clauses 14 and 15 relate to Ministry of Defence firefighters. The Defence Fire Risk Management Organisation has more than 2,000 personnel operating over 70 fire stations. Yet those firefighters currently have no specific emergency powers to act to prevent or deal with fires to protect life or preserve property. That could lead to a situation where firefighters entering a property to put out the flames might have to defend themselves against charges of breaking and entering, or where restraining family members from returning to a burning building might leave them open to a charge of assault.

Fire and rescue services at some MOD sites are currently provided by a contractor. They, too, should be able to deal with an emergency in the same way as MOD firefighters. Clauses 14 and 15 address this issue by giving defence firefighters the same powers to act in emergencies as employees of a civilian fire and rescue authority.

In conclusion, the Bill is an important act in continuing the authority of the armed forces. It makes modest but relevant upgrades to the existing system for the armed forces of command, discipline and justice. The world-class reputation that our armed forces enjoy is underpinned by many factors, one of which is that system of command, discipline and justice. We need to make sure that that system continues to be fit for the modern age. I commend the Bill to the House.

--- Later in debate ---

[Maria Eagle]

I thank my hon. Friend, who is a member of the Defence Select Committee, for her welcome for my appointment, and I hear what she has to say about these matters. The reason Liberty is campaigning on some of these issues is that, if things go wrong, it can destroy people’s lives and cause many difficulties, not only for the individuals affected but for the services. In Committee, I want us to debate the matter further with Ministers, who I know have met and considered these matters with campaigners, and to hear a bit more detail about policy development and where they are in respect of some of these things.

We have already heard from the Secretary of State the rationale for extending the provisions in the Armed Forces Act 2006 to the Isle of Man and British overseas territories, except Gibraltar, but we will want to make sure, by way of the normal scrutiny one would expect of a Bill, that the provisions are correctly drafted, fit for purpose and will do what he said he wants them to do.

We are concerned about the rationale for the provisions in clauses 14 and 15 relating to the powers of Ministry of Defence firefighters in an emergency. There is no discernible problem, or any reason why those provisions need to be in the Bill. The explanatory notes suggest, as the Secretary of State did, that MOD firefighters currently have no power in an emergency to act to protect life and property, but I wonder whether there have been instances of the kind of difficulty to which he referred. Have there been instances of such firefighters being prosecuted, or being sued for assault or for breaking and entering? If there have been any such instances, I can see why he might want to introduce these provisions. If there have been no such instances and this is simply a tidying-up exercise, how come he perceives a problem now?

[Michael Fallon]

Let me try to answer that, but first may I welcome the hon. Lady and her team to the Dispatch Box for the first time? This measure is, of course, a precautionary one to reinforce the powers of those firefighters. There may well be instances where they might have to enter service accommodation or a civilian house on or near an MOD airfield. In other circumstances, perhaps in a remote area, MOD firefighters may be the first to reach a civilian fire in a civilian area, having got there in advance of the local authority fire service, but they do not have exactly the same powers. The purpose of these clauses is to deal with these things.

[Maria Eagle]

I am grateful to the Secretary of State for that further explanation. In preparing for my remarks, I gave the chief fire officer of Merseyside’s fire and rescue authority a ring to ask whether the Chief Fire Officers Association, of which he is a member, has been consulted about these provisions. I thought it might have asked for this kind of measure. My contact with him was the first he had heard of these provisions, although he was of the opinion that he would have expected the CFOA or the local authority fire and rescue authorities to have been consulted ahead of their introduction. They are category 1 responders and would have expected to have been consulted on these provisions. There are well-known, regular opportunities for the MOD to consult and liaise with the civilian fire authorities and chief officers, but that has not been done in this instance, which made me wonder precisely what was going on. The provisions seem to imply the deployment of MOD firefighters beyond the confines of their current role on MOD property. The definition of “firefighter” includes, as I believe the Secretary of State said, contractors and subcontractors employed by private companies, and we are at a time when the work the Defence Fire Risk Management Organisation does is being outsourced or tendered. We will want to probe this matter further in Committee.

The Secretary of State has sought to reassure me, and I am open to being reassured. I am pleased to confirm that, with those few remarks and slight concerns notwithstanding, we will be supporting the Bill and seeking in Committee to probe its provisions, improving them where we can. Of course, if they cannot be improved, we will support them. [Interruption.]