Armed Forces Bill 2021 comes up for third reading – what’s changed?

On Wednesday 23 June 2021, the Armed Forces Bill has its third reading. The Centre for Military Justice produced a detailed briefing for the Armed Forces Bill in March 2021. That is available here. All of our concerns still stand.

Following first and second reading, on 11 March 2021, the Labour Party announced that it would support an amendment to the Bill to the effect that rape and other serious offences should be prosecuted by civilian, not military authorities, where alleged to have occurred in the UK. There appears to be some cross-party support for that proposal, with Sarah Atherton MP stating last summer in The Times that ‘sexual abuse in the Armed Forces should not be prosecuted by the military’. The Defence Committee Inquiry into Women in the Armed Forces, chaired by Ms Atherton, is expected to report soon and has heard a great deal of evidence about serious failings in the handling of sexual offence allegations in the Armed Forces.

On 22 April 2021, the Select Committee on the Bill reported. The Committee acknowledged the concerns of those that gave evidence about serious shortcomings in the operation of the service justice system and the Government’s rejection of the independent Lyons Review that had recommended that murder, manslaughter and rape cases should be handled by civilian authorities; drew attention to the fact that the vast majority of service personnel did not think the decision to reduce appeal rights in the service complaints system was fair; and recommended that all of the Wigston recommendations be implemented within 6 months – including the need to handle service complaints external to the single services where appropriate.

The Committee also revealed that the Secretary of State for Defence had refused authority for service personnel to speak to the Committee, a decision the Committee described as ‘disappointing.’ The Committee also noted that it had ‘faced difficulty securing documents and necessary visit approval from the Ministry of Defence’. These revelations are extremely disappointing, but sadly not surprising.

The CMJ reiterates all of the points made in our original briefing, in particular:

1. The recommendations of the independent Lyons Review should be accepted, and murder, manslaughter, rape, sexual assault by penetration, domestic and child abuse cases must be prosecuted by civilian, not military authorities; and
2. Any reduction in appeal rights for service personnel inside a service complaints system that is already heavily stacked against them must be prevented.

In the days before 3^rd reading it may be useful to reflect upon the following brief additional points:

1. The Bill as drafted would not even require sudden deaths, let alone rapes, to be handed to the civilian authorities. That is an unforgivable omission and a terrible missed opportunity. Deepcut has been back in the news again recently. It was of course the failure to ensure that those deaths were handled by the civilian police that has produced a situation today where the families can still not be sure how their children died.  Des James, the father of Pte Cheryl James who died aged 18 at Deepcut barracks said of the Bill today, ‘We would have been spared decades of pain and uncertainty if there had been a legal requirement that civilian police should handle the investigation into my daughter’s sudden death at Deepcut barracks in 1995. I simply cannot understand why the Govt is not taking this once-in-a-generation opportunity to fix this.’ The families of Private Sean Benton, Private Cheryl James, and Private James Collinson strongly support the amendment that would ensure the most serious crimes are tried in civilian courts where committed in the UK. This would bring the position in line with the original intention of Parliament when it passed the Armed Forces Act 2006, and in line with the recommendations of the Lyons Review.
2. Since preparing our original briefing, the CMJ has continued to deal with more service complaints appeals arising from extremely difficult issues that disproportionately affect women and it clearer to us than ever that the decision to reduce service complaints appeal rights will have a profoundly damaging impact on service personnel’s access to justice. Reducing the appeal time from six weeks to two, in circumstances where someone’s right of access to an independent court (the Employment Tribunal) depends upon it, is a shocking proposal and one that no-one that claims to support service personnel and veterans should wish to support. It is deeply disappointing that no amendment has been proposed that would remove Clause 10 from the Bill in its entirety. The Director of the CMJ, and the heads of military law at two major private firms that regularly act for service personnel, Wace Morgan and Bolt Burdon Kemp LLP, have written to the Chief of Defence People about their serious concerns for access to justice as a consequence of this clause. Letter to CDP Lt Gen James Swift with reply
3. Finally, throughout this process, the Government has continued to maintain the fiction that it has accepted the recommendations of the Wigston Review into Inappropriate Behaviours. It has not, because it has rejected the most fundamental one. Wigston recommended – rightly – that the most complex service complaints involving allegations of serious bullying and sexual harassment should be taken out of the single services and handled by an expert (semi) independent office within the MoD that it would call the Defence Authority. No matter how the MoD tries to spin it, it has absolutely rejected that proposal. The hoped-for team proposed by Wigston is now nothing more than a monitoring body, with no power to handle complaints itself. Complaints will therefore remain safely inside the single services and fully under their control, with the use of ‘independent investigators’ where appropriate. That, of course, happens now and is nothing new. There seems to be a proposal to make greater use of ‘independent subject matter experts’ that will sit inside the single services on the handling of such complaints. But it is impossible to understand why the MoD does not just do what Wigston proposed (as it originally said it would). Its approach to this issue – just as its refusal to allow service personnel to give evidence to the Committee scrutinising this important Bill – demonstrates just how fragile its commitment is to meaningful, lasting reform.

For the full briefing see here.

CENTRE FOR MILITARY JUSTICE

18 JUNE 2021