Different components of what became the Armed Forces Act had different origins. There had been an existing requirement for an Armed Forces Act 'to provide the legal basis for the Armed Forces'. Under the 1688 Bill of Rights, the 'raising and keeping of a Standing Army during peacetime is against the law, unless it is with the consent of Parliament.' Given that authority for maintaining armed forces under the Armed Forces Act 2006 and its subsequent secondary legislation would run out on 8 November 2011, a new piece of Primary legislation was needed.
In the case of the 2011 Act in particular, an additional policy reason for legislation was the UK Government's previously stated commitment to put the military covenant into law: during a visit to the aircraft carrier HMS Ark Royal in June 2010, David Cameron, the Prime Minister, had said that:
It's time for us to rewrite the Military Covenant to make sure we are doing everything we can...Whether it's the schools you send your children to, whether it's the healthcare that you expect, whether it's the fact that there should be a decent military ward for anyone who gets injured. I want all these things refreshed and renewed and written down in a new Military Covenant that's written into the law of the land.'
This formalisation of the Covenant was described by the relevant Select Committee as being the most controversial provision within a Bill that was otherwise on a 'much smaller scale' than the AFA 2006.
The long title of an Act is of significance because it forms part of the Act, and is the 'first of the elements of an Act... that can be used to find the meaning of the Act, and generally its scope.' in future legal decisions. The long title of the Armed Forces Act is 'A Bill to continue the Armed Forces Act 2006; to amend that Act and other enactments relating to the armed forces and the Ministry of Defence Police; to amend the Visiting Forces Act 1952; to enable judge advocates to sit in civilian courts; to repeal the Naval Medical Compassionate Fund Act 1915; and for connected purposes.'
The Act covers every part of the UK. Its scope can be extended by secondary legislation through an Order In Council to cover the Channel Islands, the Isle of Man and the British Overseas Territories. Although the Act itself does not have global applicability, members are the UK Armed Forces are subject to it, wherever they are in the world.
The policy provisions which the Act provides for are:
Section 1 provides for the renewal of the previous piece of primary legislation (the Armed Forces Act 2006) for a further five years, through an annual Order in Council in both Houses of Parliament. It makes this change by creating a new section 382 in the AFA 2006, which allows for AFA 2006 to expire a year after the Armed Forces Act 2011 is passed, unless renewed by Order. The period of extension of the AFA in this way is limited to not later than the end of 2016, however.
Section 2 makes provision for the Defence Secretary to make an annual report on progress towards the 'rebuilding' of the military covenant. The fields of healthcare, education and housing are specifically mentioned, although 'such other fields as the Secretary of State may determine' may be included in the report.
Although service police force (the Royal Military Police, the RAF Police and the Royal Navy Police) investigations were carried out independently of the chain of command of their respective services, there had been concern about the degree to which the 'service disciplinary system [was compliant with] the rights and freedoms of the Human Rights Act 1998'. In response to these concerns, sections 3-5 of the AFA 2011 were intended to 'both highlight and safeguard' the independence of service investigations, by imposing an explicit duty on service provost marshals to 'ensure that investigations... were free from "improper interference". In particular, Section 6 was designed to bring the handling of 'underperformance on the basis of efficiency and effectiveness' within the MDP onto a statutory basis (as was already the case with Home Office Police forces) rather than within civil service administrative procedures, as had been the case.
The AFA 2006 provided for military Judge Advocates (JAs) to issue search warrants for 'relevant residential premises'. These powers were intended to mirror those provided to civilian magistrates in the Police and Criminal Evidence Act 1984 (PACE). However, the amendments to PACE in the Serious Organised Crime and Police Act 2005 meant that the provisions in AFA 2006 were narrower than those in PACE as it stood in 2006. Section 7 of the AFA 2011 extended the scope of the warrants that could be issued by JAs so that they once again were equivalent to those that could be issued by magistrates. Section 8 extended section 86 of AFA 2006, to allow service police access to material (except that subject to legal privilege) on premises that were referred to in a search warrant as 'relevant residential premises'. Under this section, the JA could issue a "production order" for the material. This would have the effect of requiring 'the person believed to be in possession of the material to be produce it...or to give a Service policeman access to it.' Refusal to comply with a production order a possible contempt of court. Section 14 inserts Schedule 1 of the Act into AFA 2006, after the 2006 Act's original schedule 3 and creating a new schedule 3A. The Schedule combines the court martial sentencing powers in section 165 of AFA 2006 with Part 20 of the Armed Forces (Court Martial) Rules 2009. By making the 'Rules' part of the new schedule, it placed the Rules' provisions (relating to the consequences for election of trial by court-martial) into primary, rather than secondary, legislation. Section 15 amends provisions in the AFA 2006 and Reserve Forces Act 1996 to allow the maximum period of service detention that can be awarded by a court-martial, where the offence is failure to provide a blood, urine or breath sample for testing, to two years. Subsection 2 (b) of this section also increases the maximum punishment for offences under section 95 of the Reserve Forces Act from 6 months to 51 weeks. This is to align the maximum sentence for these offences with those of AFA 2006 offences. Section 16 creates 3 new sections of AFA 2006, relating to enforcement of financial penalties awarded by a court-martial. The new sections:Require a court-martial to specify a period of imprisonment when awarding a fine, to which the fined person will be subject if the fine is not paid by the appropriate date.
Allow the court-martial to specify an imprisonment period if a Service compensation order is not paid, if it is felt that the default term is insufficient.
Allow orders made under the new sections and applied to a Service parent or guardian of an offender, (as is permissible where the offender is under 18, is a civilian subject to service disciple and whose parent or guardian is subject to service law) to make an appeal against such an order at the Court Martial Appeal Court.
Section 17 creates a new administrative measure of "Service Sexual Offences Prevention Order" (Service SOPO) by amending seven sections of AFA 2006. Service SOPOS are different from, but are designed to mirror, SOPOs as enabled by the Sexual Offences Act 2003. That Act did not apply outside the UK, and therefore SOPOs created under it could not be used to protect members of Service families based outside the UK. Section 22 amends schedule 15 of AFA 2006, which defines the categories of civilians who are subject to service discipline, and therefore are subject to jurisdiction of Service courts. The amendments made to AFA 2006 by this section were intended to deal with what had been seen as an excessively broad jurisdiction of service courts. This section:With respect to Crown Servants working in support of the armed forces, narrows service court jurisdiction to apply only to the designated area in which they usually work, or where they are in another designated area, where they have gone there to work in support of the armed forces.
Makes a similar change with respect to individuals employed outside the UK in a specified naval, military or air force organisation due to the UK's membership of that organisation e.g. NATO.
Makes a similar change to members and employees of members of specified organisations concerned with support to the armed forces, such as the Soldiers, Sailors, Airmen and Families' Association SSAFA.
Makes a similar change to an individual who resides or stays with an employee of a specified military organisation. The section narrows service jurisdiction in the case of such an individual to their being in the country in which they normally work, or in a country to which the person has travelled in order to work.
Section 23 deals with the fact that the Prisoners of War (Discipline) Regulations 1958, which were necessary to ensure the UK's compliance with the Geneva Convention Relative to the Treatment of Prisoners of War 1949 became out of date when the Army Act 1955, on which the 1958 Regulations were based, was repealed by AFA 2006. This section inserted a new section into the AFA 2006 which allowed a Royal Warrant to be issued that would ensure that UK law's compatibility with the 1949 Geneva Convention would continue. Specifically, the new regulations would extend Service courts' jurisdiction to prisoners of war. Section 26 gives effect to schedule 2, concerning JAs sitting as judges in civilian courts.
The Act makes armed forces personnel to be subject to same drug and alcohol testing regime as is set out in the Railways and Transport Safety Act 2003, without specifically removing the military's exemption from that Act. Section 9 amends section 20 of the AFA 2006, by making the test of 'unfitness for duty' have the meaning of the person's 'ability to carry out the duty in question is impaired.'. Section 10 creates an entirely new offence; a person would be guilty of this offence if a sample of their breath, blood or urine contained alcohol above a specified level, and when that person was, or might reasonably be expected, performing a 'prescribed duty'. The prescribed duties themselves would be defined by the Defence Council, and are intended to cover safety-critical tasks, where unfitness of a person performing them could result in 'death, serious injury to any person or property, or serious environmental harm'. Section 11 sets out the testing arrangements for a person suspected of an offence created under section 10. Section 12 makes amendments to reflect the introduction of the rank of lance corporal in the RAF Regiment. Under AFA 2006 (section 132) a commanding officer can only impose service detention as a punishment on the lowest rank of non-commissioned officer (NCO). Until recently, the RAF's lowest NCO rank was corporal, and therefore the creation of the new NCO rank of lance-corporal created an anomaly, whereby the commander of RAF personnel would have had the power to detail corporals, but not the (lower) rank of lance-corporal, since at the point where AFA 2006 became law, the RAF did not have any lance-corporals. Section 12 was aimed at resolving this situation by legally redefining the lowest NCO rank in the RAF Regiment as a lance-corporal. Section 13 repeals section 293 of AFA 2006, so that when a NCO is given detention as part of a disciplinary process, he or she need not automatically be reduced to the lowest possible rank. This section also amends section 138 of AFA 2006, to allow a local commanding officer to combine reduction in rank with a custodial sentence. This section is not retrospective, and therefore does not affect any reductions in rank that occurred before the repeal of section 293 of AFA 2006. Section 19 deals with powers of local COs to reduce the rank or rate of an offender as a result of "administrative action", rather than through Service courts. In this context, "administrative action" is the system of measures to deal with to deal with failures of performance where the bringing of a charge for a disciplinary offence under AFA 2006 is inappropriate; these powers are similar to those of a civilian employer. The original Section 332 of AFA 2006 restricted reduction in rank or rate by a local CO to only one acting or substantive rank. Section 19 of AFA 2011 amends section 332, so as to allow a CO to reduce a warrant officer or NCO by more than one rank or rate, where this is deemed appropriate. Section 20 amends section 335 of the AFA 2006, requiring that the Defence Council must determine the size of a Service Complaint Panel, subject to the requirements of section 336(2) and section 336(2). It also amends section 336 of the AFA 2006 so as to remove the requirement for at least one member of the Panel to be a senior officer, and for the Panel to include a specified number of independent members, and that certain functions will be carried out by those members. (Although those functions may be delegated.) Section 7 of this section also provides for the Secretary of State to require the Defence Council to delegate its functions in relation to 'any service complaint of a prescribed description', where a majority of the panel are independent, or they require certain functions to be carried out by independent members.
A number of Sections make changes to existing legislation regarding: where the Service Civilian Court (SCC) (set up by the AFA 2006 to replace the Standing Civilian Court) may sit; reduction in rank of service personnel; the process for redress of complaints brought by service personnel; and civilians subject to service jurisdiction. Section 18 extended the remit of the SCC to the UK, so that the SCC had the same geographical scope as the Court Martial and
Summary Appeal Courts. Section 21 concerns the definitions of the term 'prosecuting officers' as used in the AFA 2006. The intention behind these amendments was to allow the Director of Service Prosecutions to appoint civilians, as well as military officers, to roles relating to the bringing of charges and proceedings.
Section 25 amends the Visiting Forces Act 1952. It allows the Secretary of State to transfer any liability for a tort under the provisions of the Visiting Forces Act to the UK MOD. The intention behind this measure is to avoid a sending state - and particularly the United States - under the Visiting Forces Act from being caught up in litigation proceedings conducted under UK procedures.
Section 27 repeals the Naval Medical Compassionate Fund Act 1915. Section 28 invokes schedule 3 which makes minor amendments to existing service legislation. Section 29 invokes schedules 4 and 5, and makes 'consequential amendments' and repeals and revocations of existing legislation. Section 30 invokes makes explicit that throughout the Act, 'AFA 2006' refers to the Armed Forces Act 2006. Sections 31-34 contain supplementary provisions; details on when each part of the Act 'commence' (come into effect), the extent to which the Act applies in the Channel Islands, the Isle of Man and British overseas territories, and the short title of the Act (how it will be usually referred to).
The passage of the Act through both Houses of Parliament was as follows:
The Bill was given its first reading in the House of Commons on 8 December 2010. It was backed (sponsored) by Defence Secretary Liam Fox, David Cameron, Nick Clegg, William Hague, Kenneth Clarke, Theresa May, Vince Cable, Andrew Mitchell, the Attorney-General and Andrew Robathan.
The Bill's second reading debate took place on 10 January 2011. A large element of the Secretary of State's opening speech, and the subsequent debate, focused on the provisions within the Bill that brought the Armed Forces Covenant into law, with one MP describing that element of the Bill as being its 'great innovation.
Several MPs suggested provisions be added to the Bill:A measure to require decisions on military basing to be approved by Parliament, rather than left entirely to the MOD;
Priority health care for veterans;
Making the citations for medals public;
Joining the 3 service police forces into a tri-service police branch;
Strengthening the ability of Parliament to hold Ministers to account for the delivery of the Armed Forces Covenant;
Changing the term 'Armed Forces Covenant' in the Bill to the 'Military Covenant'.
At the end of the debate the Bill was accepted without a division being taken, and was followed by money and programme resolutions. The House also passed a resolution to appoint a Select Committee for the Bill.
Subsequent Commons stages were as follows:
The Bill's third reading took place on 16 Jul 11. It was moved by the Under-Secretary of State, Andrew Robathan, and Gemma Doyle replying on behalf of the Opposition. Jack Lopresti closed the debate, with the Bill being passed without a division.
The Bill was introduced to the Lords on 16 Jun 2011. Subsequent Lords stages were as follows:
The Bill's third reading in the Lords took place on 10 Oct 2011. The first speech in the debate, made by Lord Craig, was on an amendment relating to the armed forces covenant clause of the Bill. The amendment aimed at moving the location of the clause mandating the production of the covenant report in the AFA 2006 from after section 359, to being in a new part (Part 16A). The reasoning behind the amendment was that the 2011 Bill, as it had been drafted up to that point, would have placed the covenant requirement into what was described as 'the tail end of ad hoc and miscellaneous provisions of the Armed Forces Act 2006'. The amendment would place the covenant requirement into a place that, Lord Craig argued, 'far more adequately [reflected] the importance of this... initiative of the Government.' This amendment was agreed to.
The Bill was given Royal Assent (and thus became an Act) on 3 November 2011.