Main Image Credit Benches in the chamber of the House of Lords. Courtesy of Wikimedia Commons/UK Parliament/CC BY 3.0
A new legal framework governing the UK’s armed forces is reaching its final parliamentary stages. A brief on its main features and controversies.
The Armed Forces Bill will renew and amend the Armed Forces Act 2006, which provides the legal basis for the system of military law in the UK. A bill to renew the Act is needed every five years, and so the 2006 Act has been renewed on two previous occasions in 2011 and 2016.
The new Armed Forces Bill amends the service justice system, set out in the 2006 Act, and further enshrines the Armed Forces Covenant in law. The Bill completed its Commons stages in July and now moves to the House of Lords. It must be approved by Parliament by the end of 2021 in order for the 2006 Act to remain in force.
While its approval is not in doubt (the Bill has cross-party support), opposition parties have criticised it as a ‘missed opportunity’ and say it will make ‘very little, if any, practical difference to those who serve’.
Why is an Armed Forces Bill Needed?
Parliamentary consent for the raising and keeping of a standing army during peacetime dates back to the 1688 Bill of Rights. In modern times that consent, which covers the whole of the UK armed forces, is given through an Armed Forces Bill.
The Armed Forces Act 2006 allows the armed forces to exist as a disciplined force by setting out the system of military law. This applies to all UK service personnel, wherever in the world they are operating. Johnny Mercer, a former Minister for Defence People and Veterans, explained what would happen if the Bill to renew the Act failed:
'If the 2006 Act were to expire, the duty of members of the armed forces to obey lawful commands, and the powers and procedures under which that duty is enforced, would no longer have effect.'
Reaction to the Bill
MPs and military charities have expressed frustration with the Bill, although opposition MPs have failed in efforts to amend the text. However, it is likely that Members of the House of Lords, which includes several former senior service chiefs, will raise similar concerns when they scrutinise the Bill this autumn. Below are the main concerns raised so far.
Armed Forces Covenant: The Bill ‘Does Not Go Far Enough’
One of the main aims of the Bill is to further enshrine the Armed Forces Covenant in law. The Covenant, which was introduced in 2011, is a promise by the nation to ensure that those who serve or who have served in the armed forces, and their families, are treated fairly. This means that those who serve or who have served should face no disadvantage compared to other citizens in the ‘provision of public and commercial services’. It also means that special consideration is appropriate in some cases, especially for those who have been injured or bereaved. No disadvantage and special consideration are the core principles of the Covenant.
The Ministry of Defence is already required by the Armed Forces Act 2011 to report annually on the Covenant. The new Bill requires some public bodies, including local councils, to give due regard to the principles of the Covenant when exercising certain housing, education and healthcare functions.
However, in an open letter to the government, military charities – including the Royal British Legion and Cobseo – and the service families federations say the Bill ‘does not go far enough’. They argue the duty should not be limited to local councils and some public bodies but should be extended to central government and the devolved administrations.
They also argue the scope of the Bill should be extended to other areas that affect veterans, including employment, pensions and compensation, and social care and immigration.
Stephen Morgan, the Shadow Minister for the Armed Forces, said the Bill ‘fails to address long-standing and well-known issues facing service communities’. Carol Monaghan, SNP spokesperson for the armed forces and veterans, said the Bill ‘lacks the punch required’ to deliver the Covenant. Leo Docherty, the Minister for Defence People and Veterans, resisted efforts to amend the Bill, saying there is provision to widen the scope in regulations (secondary legislation).
Jurisdiction of Courts for the Most Serious Offences
A judge-led independent review of the justice system for those in service recommended that Court Martial jurisdiction should no longer include murder, manslaughter and rape when these offences are committed in the UK. The review said exceptions could be made if the Attorney General gave consent.
The Ministry of Defence, which commissioned the review in preparation for the Armed Forces Bill, rejected this recommendation. It opted instead for a new protocol to be agreed between the Director of Service Prosecutions and the Director of Public Prosecutions in England and Wales (and counterparts in Northern Ireland and Scotland). This issue was explored by the Select Committee on the Armed Forces Bill.
Labour sought to amend the Bill to include the review’s recommendations, but was defeated at Report Stage.
Review of Those Dismissed or Forced to Resign Because of their Sexuality
The Bill extends posthumous pardons for those convicted of certain abolished sexual offences.
The UK lifted the ban on LGBT+ people in the armed forces in 2000. In early 2021 the Ministry of Defence introduced a new policy to allow personnel who were dismissed from service on the basis of their sexuality to apply to have their medals restored.
Labour (supported by the SNP) sought to introduce a new clause into the Armed Forces Bill that would require the government to review the number of people who were dismissed or forced to resign from the forces because of their sexuality, and to consider appropriate forms of compensation.
In response, Leo Docherty said the government ‘accept entirely’ that the ban was ‘absolutely wrong’ but added that a legal requirement for a review ‘may complicate or constrain’ work underway to address the historic injustice suffered by members of the LGBT+ community. The minister said this matter will be at the heart of the veterans strategy that he will announce this winter.
Duty of Care for Personnel Involved in Investigations or Litigation
The investigation and prosecution of serving and former service personnel relating to allegations arising from overseas operations was discussed at length during the Overseas Operations (Service Personnel and Veterans) Act 2021.
During the passage of the Armed Forces Bill in the Commons, Labour pushed for a ‘duty of care standard’ to give legal, pastoral and mental health support to service personnel involved in investigations or litigation arising from overseas operations. Leo Docherty resisted Labour’s call, arguing a ‘one-size-fits-all approach’ is not appropriate, and suggested the difficulties of drafting such a duty of care would ‘inevitably mean the involvement of the courts and additional litigation’.
An Armed Forces Representative Body?
The SNP has long called for an armed forces representative body, similar to the Police Federation. Labour supported this, with both parties arguing that it would give personnel an independent voice.
Stephanie Peacock, the Shadow Minister for Veterans, said countries like the US and Australia have similar models. However, Leo Docherty said this was not needed in the UK because personnel were already represented and protected through a range of mechanisms, including the Armed Forces’ Pay Review Body, the Service Complaints Ombudsman and diversity networks within defence.
Mental Health Care
Mental health care for serving personnel and veterans has been a regular topic of interest for MPs in recent years. However, Leo Docherty said Labour’s call for a formal review of the standards of mental health care available for service personnel would be an administrative burden and was unnecessary.
What Happens Next?
The 2006 Act, as amended by the Armed Forces (Continuation) Order 2021, cannot be extended beyond the end of December 2021, meaning the Bill must be passed this year.
Although it is highly likely to be approved, it may be amended by Members of the House of Lords. They have their first opportunity to discuss the Bill at Second Reading on 7 September 2021.
If the Bill is amended in the Lords, then it will return to the Commons for further consideration. Both Houses must agree on the exact wording of the Bill before it can receive Royal Assent and become an Act of Parliament.
Louisa Brooke-Holland is a researcher at the House of Commons Library specialising in defence. Briefings for MPs on the Bill can be found on the Library website: Armed Forces Bill 2019–21 and Armed Forces Bill 2021–22: Progress of the Bill.
The views expressed in this Commentary are the author’s, and do not represent those of RUSI or any other institution.
Have an idea for a Commentary you’d like to write for us? Send a short pitch to email@example.com and we’ll get back to you if it fits into our research interests. Full guidelines for contributors can be found here.