ARMED FORCES BILL (Hansard, 1 July 1976)

§ Lord WINTERBOTTOM

My Lords, I beg to move that this Bill be now read a second time. The primary purpose of this Bill, as provided for in Clause 1, is to renew for another five years the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957. These Acts may be collectively referred to as "the Service Discipline Acts ", but they encompass more than discipline in the narrow sense of the term. The provisions of these Acts help to provide a general legal framework within which members of the three Armed Forces spend their Service lives wherever they may be; and civilians accompanying our forces overseas also fall within their scope.

There is general agreement, I hope and believe, that the quinquennial system of Armed Forces Bills works well. It provides a regular and well-spaced opportunity for looking at the operation of the Service Discipline Acts, and for updating or amending them where such a need is indicated. In addition, the quinquennial system helps to ensure that, as far as possible, the rules that determine how indiscipline is dealt with in the Services reflect and keep pace with civil experience and practice. Within each five-year period, continuation in force of these Acts is made subject to annual renewal by Affirmative Resolution. The annual continuation order system provided in Clause 1 accords with past practice, although a slight alteration of the timing, whereby the annual continuation orders will be required to be passed by the end of 873 August, will now lend greater flexibility to this procedure within the timetable of the Parliamentary Session. The need for annual renewal gives to Parliament an additional opportunity to debate matters more widely related to Service discipline.

The examination of the Service Discipline Acts that preceded this Armed Forces Bill suggested a number of areas, of varying significance, where changes are desirable. The rest of the Bill is devoted to these changes. They are generally designed to improve the working of the Service Discipline Acts, and thus to benefit those subject to them. Some of the provisions are minor — seeking to clarify areas of possible legal ambiguity, to rationalise various administrative or judicial procedures, or to rectify certain anomalies in the different Services —and I do not propose, unless noble Lords wish it in any particular instance, to discuss them in detail now. I would prefer, instead, to dwell on what are considered the more important provisions of the Bill.

I should like first to mention Clause 4 and Schedule 2, under which members of Queen Alexandra's Royal Nursing Service and of the Women's Royal Naval Service are to become fully subject to the Naval Discipline Act. For the first time they are included legally as members of "Her Majesty's Naval forces ". Their status will therefore broadly accord with that of their sister Services in the Army and the Royal Air Force. I hope noble Lords will agree that the QARNNS and WRNS, both of whom continue to perform a valuable and distinguished role, will benefit from these provisions.

In 1971 the Armed Forces Act made a significant change in the law. Under it the offence-making sections of the Army and Air Force Acts and of the Naval Discipline Act were made virtually identical. Thus the specific argument formerly used for the WRNS and QARNNS to retain their own voluntary codes —that is, because the Articles of War in the Naval Discipline Act were to harsh to be applied to women —no longer applies. We are therefore using the first opportunity since 1972 to make the appropriate changes.

Under the present disciplinary codes of the QARNNS and WRNS, their members can suffer from a number of disadvantages 874 as regards legal rights. For example, they lack the protection afforded by the Naval Discipline Act, having no immunity from trial in the civil courts for an offence that in substance may already have been dealt with administratively in the Service; and they currently have no statutory rgiht of complaint. These disadvantages —other than those rehearsed on pages 32 to 33 of the Select Committee Report produced in another place —will disappear when the current provisions are enacted.

The proposals are in line with the results of the general review of the future of the WRNS that was completed last year. Noble Lords may be aware that last July the Parliamentary Under-Secretary of State for the Royal Navy said in another place: The WRNS continues to make an indispensable contribution to the efficient work of the Navy. Its role and organisation have recently been thoroughly reviewed. It has been decided that it should in future be more closely integrated into the naval Service, so sharing both the greater opportunities and the fuller obligations of such Service. We are actively considering what new jobs it could undertake, and we shall lay before Parliament proposals to bring it and the Queen Alexandra's Royal Naval Nursing Service — with all its fine traditions —within the ambit of the Naval Discipline Act. I believe this to be a logical and timely step which will bring the WRNS into line with the women of the two other Services." —[Official Report, Commons, 9/7/75; col. 552.] The present proposals are, as I say, in line with the greater opportunities my honourable friend was then speaking of. I would emphasise that they in no way go against the proud and illustrious traditions and history of the QARNNS and WRNS; they should rather be seen as a part of the continuing development of their notable contribution to the defence of the nation.

My Lords, I turn now to Clause 5, which seeks to increase the summary powers of commanding officers in the Royal Marines, the Army, and the RAF. In 1971 the Select Committee which examined the last Armed Forces Bill recommended that the Department consider the desirability of increased powers for such commanding officers. Since 1971, a thorough examination, involving consultation at various Service levels both in this country and overseas, has taken place, and has resulted in the proposals now before the House. These are justifiable on several grounds. There are at present a number of essentially Service 875 offences, such as absence without leave, which, though legally straightforward are tried by court-martial. In 90 per cent. of such cases the accused pleads guilty. The seriousness of such offences does not always justify the full panoply of court-martial proceedings with the inevitable delays, formality and man-hours they involve. Your Lordships will be aware of the tendency in civil courts for cases to be taken in the lowest appropriate level of court. The proposals in Clause 5 follow this trend by permitting summary disposal as a more suitable way of dealing speedily, effectively and justly with a number of those disciplinary cases that are presently tried by court-martial.

It is difficult to forecast accurately the annual savings in courts-martial that these provisions will effect since in all cases where the extended powers might be exercised the accused will have the right to opt for trial by court-martial. Tentative estimates based on past figures suggest a possible annual saving of some 300 or more Army and RAF courts-martial. This would represent in the region of 15 per cent. of the annual number of courts-martial, and in the interests of the best use of resources would contribute a useful saving in administrative efficiency and officer time.

However, these proposals are not advanced merely in the interests of administrative savings, nor is there any intention to try to get justice "on the cheap ". If we felt that continuation unchanged of the existing system was vital to ensuring that the disciplinary arrangements continued to work in a just way, there would be no hesitation about deploying whatever resources were required to that end. But we believe, on the contrary, that the new arrangements will hold significant advantages for the accused as well, especially since he will, in any case where the extended powers might be exercised, always have the option of trial by court-martial. We consider, however, that in many cases the accused will prefer to be dealt with more quickly and less formally by his own commanding officer: by an officer whom he knows, and who knows him and his circumstances. If he chooses so to be dealt with, he will additionally avoid the greater stigma that trial by court-martial, in the enclosed Service community, inevitably incurs. Thus, we be 876 lieve—and the Select Committee of another place endorsed this belief — that the accused himself will see the advantage of and benefit from the proposals in Clause 5.

In advancing these proposals the Department has been fully conscious of the need to safeguard the rights of the accused at summary proceedings. As I say, there is no intention to erode these rights, or to by-pass the demands of justice. I have already mentioned —and I do not apologise for repeating myself, since the right is of paramount importance —that in cases where the summary powers may be exercised, the accused may opt for court-martial trial. In addition, where the extended summary powers of detention may be applied new safeguards are to be introduced as follows: first, an abstract or summary of evidence is to be prepared; secondly, legal advice on the case is to be obtained by the commanding officer; thirdly, higher authority must have granted the commanding officer permission to use the extended power of detention; fourthly, the extended power shall be used only w here the accused does not dispute that the material facts alleged against him are true, or that such facts constitute the charge brought; and, finally, any case where the extended power of detention has been used will be reviewed under Section 115 of the 1955 Acts.

These safeguards will always apply where the extended summary powers of detention might be exercised. I would remind noble Lords that we are talking here about Service detention, and not about imprisonment. And the difference is not one of mere terminology. Sentences of detention that might be awarded under Clause 5 of the Bill may be contrasted with the maximum sentence that a court-martial may impose for most Service offences under the Army and Air Force Acts: which is of two years' imprisonment. In this context the powers now proposed for commanding officers are not at all excessive; and, of course, the more serious instances will, in any case, always be tried by a court-martial.

The provisions in the Bill, and the safeguards that will be introduced in regulations and administrative instructions, were scrutinised very thoroughly by the Select Committee of another place. They concluded that: …it was right to make these changes 877 I commend this view, on the merits of the case I have just outlined, to noble Lords. The Royal Navy is not affected by the proposals contained in this clause. The level of powers held by Naval commanding officers were accepted by the Select Committee of another place as being appropriate, and the Government are happy to accede to that Committee's suggestion that they be reviewed when Armed Forces Bills are presented to Parliament.

The proposals in the Bill that received the most extensive examination from the Select Committee —and quite rightly, since they are the most significant innovations in the Bill —are those that concern civilians, and particularly juveniles. I refer to Clauses 6 to 9 and their accompanying Schedules. As your Lordships may be aware, these civilians accompanying the Services overseas are already subject to the provisions of the Service Discipline Acts. They are liable to trial under those Acts by court-martial, and summarily by Naval commanding officers, or by appropriate superior authority in the Army and RAF. The penalties available at present under the Acts are limited to imprisonment or a fine, and in practice these have been found to be too inflexible, in particular when dealing with cases involving juveniles. It is therefore proposed to take a new range of powers to deal with civilians in general and juveniles in particular, modelled as far as possible on the corresponding provisions in English law. The powers, including their closeness to the comparable civilian power, are more fully set out in the Supplementary Memorandum M6 which is printed on pages 74–78 of the Select Committee Report.

These powers will be available to deal with civilians who are brought before courts-martial, but it is also proposed to establish a Standing Civilian Court which will be available to deal with precisely those cases for which present arrangements leave something to be desired. The new court, which will be set up at present only in Germany, will be akin to magistrates' courts in England and Wales. The civil departments concerned have been fully consulted over the proposals, both for the new powers and for the court, including the Lord Chancellor's Department as regards the appointment of magistrates 878 to the new Standing Civilian Court. All concur in them and the relevant German authorities see no objections to the Bill's proposals.

The "civilians" provisions of the Bill, so far as the Services are concerned, are innovatory. The parallel with corresponding United Kingdom arrangements is not precise, but it is as close as is possible at this stage; it was not felt desirable to embark immediately on the whole of the more complicated or specialised areas with which courts in this country may concern themselves. However, the workings both of the Standing Civilian Court and of the new awards will be kept under close review, and refinements which might be found desirable in the light of experience could be introduced in the next Armed Forces Bill. We are determined to remain flexible about their operation, just as the need for flexibility prompts their introduction now. The "civilians" proposals constitute a timely and valuable contribution to the way in which civilians accompanying the Services overseas are treated, and I commend them to the House.

My Lords, I could go on to discuss various of the Bill's other proposals: for example Clause 2, which will allow regulations to be made enabling a reduction in a Serviceman's term of service in cases where a man proves unsuitable for a particular trade, and it is desired to transfer him to another where the period of engagement is less; Clause 13 and Schedule 6, which provide for imprisonment in default of payment of a fine, or Clause 16 and Schedule 8, which provide for the registration in certain civil courts of a financial penalty imposed under the Service Acts. All these, like the Bill's remaining provisions, are useful —and, I hope and believe, uncontroversial —measures. Your Lordships however will, I am certain, wish to examine the Bill in your own time, instead of listening to me describing it. You will be aware that all the provisions of the Bill have been carefully looked at by the Select Committee of another place. That Committee produced a most useful Report including the oral and written evidence taken. In it the Committee endorsed the general principles of the Bill, and made several recommendations, all of which have been accepted by the Ministry of Defence. I have no doubt however 879 that your Lordships will wish to consider the Bill and its provisions with your customary care.

In the Government's view this Bill makes a valuable contribution to the working of the Service Discipline Acts, and I commend it to your Lordships. I beg to move.