The Armed Forces Bill: lost opportunities and some dubious proposals

26/04/2021

The Armed Forces Bill proposes important changes to the military justice system and will make civil society obligations under the Armed Forces Covenant a legal duty. We look at these and other matters of interest that have come up in the process.


Every five years, new legislation concerning the armed forces, and amendments to existing laws, are put forward under an Armed Forces Bill. This is an opportunity for civil society to raise concerns in parliament about how the UK’s military institutions operate. ForcesWatch and our partner organisations have usually focused on fomenting debate about raising the age of enlistment and the terms of service for young recruits.

The current Armed Forces Bill also proposes important changes to the military justice system, will make civil society obligations under the Armed Forces Covenant a legal duty, and has provided an opportunity for MPs who support establishing a representative body for serving personnel to further their cause.

The Armed Forces Bill reached Committee stage at the end of March. Whilst the Bill still has to go through a Third Reading in the Commons and is yet to pass through the Lords, the process thus far suggests it is likely to pass into law in its current form such is the size of the Conservative majority. Here we review the discussions that took place when the Commons Select Committee on the Armed Forces Bill conducted its line-by-line review of the Bill and look as some concerns both with the legislation and the Committee process.

A foregone conclusion?

A key problem with the current composition of the Armed Forces Bill Committee is that, as is the case in the House of Commons, the Conservative Government has a huge majority. This means that any amendment seeking to challenge the government’s position is easily voted down and this was bourne out during the two Committee sittings at the end of March. This was reinforced by the lack of engagement from most Conservative members, who only spoke within the Committee to say ‘aye’ or ‘no’ when voting on an amendment. This lack of presence led Scottish National Party MP Martin Doherty-Hughes to call for a point of order that forced Committee members to switch on their cameras during votes, ensuring it was actually the MPs, and not their aides, behind the screen. It could be argued that it seems the Conservative members of the committee have been selected less to effectively scrutinise the Bill and more to help ensure its safe passing.

Armed forces representative body

Both the Scottish National Party and Labour put forward amendments calling for the formation of an armed forces representative body that can work on behalf of personnel – particularly those of lower rank – to negotiate pay and conditions. The idea is modelled on both trade unions and the Police Federation, and would allow armed forces personnel to speak with a unified voice and have mechanisms through which they can challenge work conditions but, as with the Police Federation, they would not be allowed to strike.

As ForcesWatch had argued the collectivisation of armed forces personnel is much needed and long overdue. Unions are the most basic self-defence mechanism for working people and self-organisation has been the main historical driver to increase standards of pay and conditions, and quality of life. As it stands, UK military personnel cannot organise collectively, even along the union-lite lines of the police and prison officer federations, leaving them uniquely unrepresented. The Committee was divided on the issue along party lines. The Conservatives, with their long history of opposition, and out-right attacks on, trade unions, spoke against the amendment. Perhaps it was unsurprising that Labour and the SNP put forward the amendments, with the Labour Party a more historically natural fit with lower ranking personnel from working-class backgrounds.

The Minister for Defence People and Veterans Johnny Mercer (who has since left the post after a rather public row with the Government) claimed that the government is not persuaded that there is a requirement or indeed a groundswell of support for a federation along the lines that have been suggested. The interests of our armed forces personnel are already represented through a range of mechanisms, not least the chain of command’. This tone-deaf response came after Committee discussions on the inadequacies of the military justice system and a submission by the incumbent Armed Forces Ombudsman saying there are huge improvements to be made to make the complaints system work for complainants.

Service justice system

One of the most pressing reasons military personnel need a representative body is that the service justice system is not fit for purpose. Three weeks before the Armed Forces Bill Committee met for their first sitting, the Parliamentary Sub-Committee on Women in the Armed Forces heard evidence on the experiences of women in a male-dominated and masculine military culture. Around 4,000 female personnel and veterans submitted written evidence to the the sub-committee – with around 40% believed to be still in active service – and The Times reported that committee Chair, Sarah Atherton, ‘heard stories of bullying, harassment, discrimination, sexual abuse and rape’. Yet the service justice system has a poor record when dealing with these issues.

For this reason, Labour moved an amendment that would see the most serious crimes – including murder, manslaughter, sexual assault, and rape – are tried in the civilian courts when committed in the UK’. This is not a radical proposition. It was the first recommendation of the 2020 Lyons Review into the service justice system, and as Labour’s Sharon Hodgson told the Committee, in 2006 the head of the Army Prosecuting Authority, had stated that court martial would be used for such cases only in exceptional situations. It is a position shared by the Centre for Military Justice and Forward Assist.

The Committee heard that whilst the civilian courts have a long way to go, between 2015 and 2019 the conviction rate for rape was 59% compared to just 10% at court martial. Perhaps this is unsurprising considering the opinions amongst some high-ranking male officers and judges (and they are almost all men) when it comes to rape. When questioned on low conviction rates during a Committee session on 11 March, Judge Advocate General Alan Large, the military’s top judge, claimed ‘our service people are thoroughly good people, but they drink too much, something goes wrong and they end up in court’. Whilst this statement was widely report in British newspapers, nobody in the committee challenged the claim.

The government is opposed to serious crime within the military being tried in UK courts. In his response to the Committee, the Minister claimed that because it ‘would mean that murder, manslaughter and rape committed in the UK could never be dealt with in the service justice system then his party could not support it. This is partly based on an argument that if offending is committed both overseas and in the UK, that is across jurisdictions, then it would be more appropriately tried in the service justice system. There are two problems with the position. Firstly, those who claim that serious offences committed in the UK should be tried in the civilian justice system already acknowledge there are circumstances where the cross-jurisdictional nature of the service justice system might be more appropriate. Secondly, Mercer’s catch-all approach fails to take into consideration how rape and sexual assault can be committed multiple times and in different places. If it happens in the UK then offenders should be tried in the UK civil courts regardless of whether they may also have offended on an overseas military base, especially when UK courts are clearly more capable of handling these cases.

At no point did Johnny Mercer acknowledge the continued failings of the service justice system in investigating and trying cases of rape and sexual assault that witnesses so clearly detailed to the Committee. Instead, he tried to defend the service justice systems poor handling of these cases, referencing a 2018 audit during the Lyons Review that found service police had the necessary training, skills and experience to carry out investigations.

Reducing the right to appeal

Despite the lost opportunity for more substantial reforms, some of the proposed changes to the service justice system – such as the creation of a Service Police Complaints Commissioner – have been welcomed. However, plans to reduce the amount of time in which an appeal can be made to the Service Complaints Ombudsman from six to two weeks were condemned by many and we share their concerns. The government claims the reduction will ‘increase efficiency and speed up the process within the statutory service complaints system’. Yet, both the current and previous Service Complaints Ombudsman told the Committee there is little evidence that delays in resolving complaints occur at the appeal stage. In fact, the current Ombudsman went so far as to say:

I have significant concerns around the proposals to limit the timeframe and approach for raising appeals, both within the internal Service Complaints system, and in approaching my office. I cannot support these elements of the Armed Forces Bill’.

A fortnight is far too little time for someone to receive a decision, digest its implications, formulate a response and then make an appeal – all without legal representation. This is further impacted, as the Ombudsman highlighted in their submission, by the fact ‘that some Service personnel struggle with mental ill health as a result of their experiences, and may find it particularly difficult to absorb and deal with information in such a short timeframe.

The Armed Forces Covenant

The Armed Forces Bill will enshrine the Armed Forces Covenant into law and give it a statutory footing for the first time. ForcesWatch submitted evidence to the Committee, outlining our concerns around the new legislative proposals for the Covenant, and our observations over the past decade about the way it works to promote generic support of the armed forces. Whilst appreciating the importance of reducing disadvantage experienced by the armed forces in access to services, we argued that the Covenant should not be put on a statutory footing. In practice, local authorities and other bodies are putting significant resources towards this already. This vaguely worded and open-ended legislation is unhelpful and has the potential to create further social division.

Whilst we argued for a rethink on the Covenant’s scope, Labour proposed amendments that called for its remit to be extended: widening legal duties under the Covenant beyond health, education and housing to include employment, pensions, compensation, social care, criminal justice and immigration. However, when putting the case for the amendment, Labour’s Stephen Morgan could only explain how three of these functions – social care, pensions and immigration – would work in practice.

In putting forward these amendments the Opposition also aimed to highlight the way in which the Covenant seeks to put the onus of “due regard” for serving personnel and veterans on cash-strapped local authorities but is silent on the responsibilities of central government. Functions such as pensions and immigration can only be addressed by government, and this position was backed by evidence from the Royal British Legion highlighting how some issues facing veterans cannot be resolved at a local level.

There were also problems with the evasiveness of the Minister for Defence People and Veterans regarding publication of draft statutory guidance on the Armed Forces Covenant. Despite repeated requests from the Committee Chair, James Sunderland, that the Government share the guidance with Committee members well in advance of them sitting, and to also publish the guidance in time for those submitting evidence to digest them, the Minister only circulated an incomplete draft to members on the eve of the first sitting. Publication of the guidance did not happen until after the Committee had concluded. This delay obstructed important scrutiny of those parts of the Bill that will put the Armed Forces Covenant on a statutory footing, with significant policy and funding implications for local public bodies who must deliver them.

Submissions to the Committee from Local Government Associations in England, Scotland and Wales detailed how councils across the UK were already working hard to overcome the issues in armed forces access to housing, education and health, and that some of the remaining problems would not be solved by the Covenant. Equally, there are cases in which these issues are down to MOD policy and not the actions of local government. For example, the Civilian-Military Liaison Adviser to Surrey and Kent County Councils detailed how the MoD is working with local authority education departments to try to move service personnel at the start of the school year so their children’s education is not disrupted. As the new proposals will only place a legal obligation to have “due regard” for the education of the children of serving personnel on local authorities and not the MoD, this particular issue will not be fixed.

There are also questions around how provisions in the Covenant will be implemented once they have a statutory footing. The majority of evidence given to the Committee, from health care professionals to Ministers, shows that a lot of work is already being done to implement the commitments outlined in the Covenant. The issue, then, is less to do with how much “due regard” a local authority, GP surgery or NHS trust has towards serving personnel and veterans, but whether they have the resources to provide excellent public services for everyone in their locality. The goal should be to provide excellent public services for all society; with the current state of public services, care needs to be taken to ensure “due regard” does not morph into “privileging” veterans and serving personnel. This is likely to be difficult for public bodies to negotiate in practice, despite their best efforts in trying to navigate quite vague guidelines. For example, differences in levels of provision between devolved nations could mean that local authorities would be legally obliged to make up the shortfall when armed forces personnel move into their area out of their own already overstretched budgets.

As we stated in our submission, while it is important that individual service personnel, veterans and their families do not face hostility or disadvantage, public outreach activities undertaken by the armed forces are about far more than developing understanding. They serve to create acceptance of military approaches and to generate new recruits. For example, when challenged on military outreach activities – such as recruitment stalls with weaponry – some local councils in England have cited their pledge under the Armed Forces Covenant as a reason for allowing it to continue. Those calling for the extension and consolidation of the Covenant should consider the militarising impact it has had beyond access to services, and the potential for it to create division within communities.

Recruitment Age

The Scottish National Party introduced an amendment calling for the minimum age of enlistment to be increased from 16 to 18 years, a long standing position of ForcesWatch and our partner organisations. However, the sentiment is not shared by members of the Committee. When the amendment was pushed to a vote, all eight Conservative members voted against, as did Labour’s Kevan Jones. The four remaining Labour members abstained. Opposition to the amendment was couched in the familiar trope of the opportunities the army affords young people, whilst ignoring the submissions evidencing that many recruits suffer in the short and long term from enlisting at such a young age. As the submission from Child Rights International Network (CRIN) highlighted, since 2014 ‘the army has recorded 60 formal complaints of violence by instructors against recruits at the Army Foundation College, despite an ‘outstanding’ Ofsted rating for duty of care in 2018‘. CRIN also details how the standard of education young recruits receive is below that which they would obtain from staying in full-time education until the age of 18.

The SNP put forward two additional amendments in relation to very young recruits. These relate to the minimum years of service and reporting the experiences of under-18 recruits annually to Parliament. On the former, SNP MP Carol Monaghan told the Committee that the amendment would ensure that service personnel aged under 18 would not be required to serve a longer period than adult service personnel‘. Army recruits that join aged 16 have to serve an additional two years when compared with those who join aged 18 or over – that is, the two years if they serve until 18 and then the minimum four years service required of all recruits enlisting at 18 or older. And, as Carol Monaghan noted, that ‘inconsistency on service relates solely to the Army; it does not exist in the Navy or RAF’. Whilst increasing the minimum enlistment age to 18 seems far off, this simple amendment to the minimum terms of service would have immediate benefits for young recruits. The army even floated the idea in a 2019 review of its junior entry policy, saying it would provide “greater consistency.”

The final amendment relating to young recruits would have required the Secretary of State to use the annual Armed Forces Covenant report to assess (a) the health and educational outcomes of personnel under age 18 and (b) the service of personnel under age 18 in relation to the Convention on the Rights of the Child article 3. Attempts at forcing the Secretary of State to account for, and report on, the issues impacting under 18 recruits would be an important step towards the long-term goal of increasing the enlistment age. Currently, all of the information pertaining to negative impacts on young recruits is provided by outside organisations and a small group of MPs, against a groundswell of anecdotal claims of the benefits from supporters of the status quo. An annual report to Parliament would ensure the Government is collecting data on the experiences of under 18 recruits and that this is being shared with MPs for proper scrutiny. This last amendment was withdrawn by the SNP so did not go to vote. However, there is a chance it may be introduced in some form when the Bill returns to the Commons for a Third Reading.

As expected, the Bill passed the Committee stage unamended. We hope that some of the amendments will return during the Third Reading to create much needed debate in the Commons and Lords around these important issues.

The full report of the Select Committee on the Armed Forces Bill Committee is now available.