The Armed Forces Bill 2021 – a missed opportunity and some very serious concerns

08th Feb 2021

This brief blog sets down some of our initial thoughts on the Armed Forces Bill, particularly as it relates to the service justice system, which has its second reading today, Monday 8 February 2021.

First of all, credit where credit is due. It is enormously encouraging that the Secretary of State has finally agreed to the creation of a Service Police Complaints Commissioner, which will enable service personnel to raise complaints about service policing with an independent complaints body. This is a huge step in the right direction and, it is hoped, will lead to improvements in service policing across the board.  The new Commissioner will also be able to consider ‘super-complaints’ which is very welcome indeed.

Secondly, the Secretary of State has agreed to place the Prosecutor’s Protocol on a statutory footing, recognising its importance and authority. The Protocol already exists but will now be contained in statute and there will be an opportunity for Parliament to consider what its parameters ought to be. The Protocol will govern and guide decision-making on the correct allocation of criminal cases as between the civil justice system and the service justice system.

Missed chances

Very regrettably, the clause does not give any indication about whether certain types of offences occurring in the United Kingdom should be dealt with in one system or another.  It is absolutely vital that it should. The Lyons Review recommended that murder, manslaughter, rape, sexual assault by penetration, domestic abuse and child abuse alleged to have occurred inside the UK should be dealt with by the civil justice system, not the service justice system. These are offences that disproportionately affect women and the women we represent have direct experience of them and want their cases to be dealt with in a civil court. This clause does not go nearly far enough and MPs are strongly urged to use the debate to support the Lyons Review recommendations which were the product of two years of careful, evidence-based analysis. HHJ Lyons’ recommendations also reflected the clear intention of the Government and Parliament when it passed the law in 2006, which made clear that it was not their intention that offences such as rape, where they occurred in the UK, should be handled in the service justice system at all. We hope an amendment will be tabled that would create a presumption that certain types of serious offences, where they occur in the UK, should proceed in the civil not the service justice system, thus returning the system to that which Parliament had originally intended.

Sadly, there is nothing in the Bill about the kinds of reforms that might help the Government address the serious criticisms of the Overseas Operations Bill. In particular, the Lyons Review (policing report) urged that consideration be given to enabling civilian police investigators to deploy in support of the service police when engaged in the very difficult task of investigating serious crime overseas. This would help address one of the fundamental criticisms of the Overseas Operations Bill, which is that it does not address the cause of all the re-investigations and litigation following the war in Iraq – which was poor quality, one-sided (or even non-existent) investigations by commanding officers or service police, of serious allegations of abuse.

Nor is there anything in the Bill about the appointment of independent judges who could oversee and review detention decisions overseas, particularly when dealing with insurgents, providing oversight and protection for the detainee, and lawful authority and legal protection to soldiers making difficult decisions on the ground. This has been recommended by several commentators on the Bill and remains notably absent.

And the really bad bits …

Like Part Two of the Overseas Operations Bill, the Armed Forces Bill significantly reduces the rights of service personnel – this time those that are going through the statutory service complaints process.

It does this by reducing the time limit for appealing a service complaint from six weeks, to just two weeks. It does the same for the time limit to appeal to the independent Service Complaints Ombudsman. This is alarming even on its own terms – most service personnel are not legally represented, work full time, and find the process stressful enough as it is with a six week time frame, let alone a two week time frame – but is particularly concerning when you think about a service person’s right to bring a claim in the Employment Tribunal (ET). A service person’s right to bring a claim in the ET is already far more limited than a civilian’s. They can only do so on certain grounds and, crucially, only where they have also made (and if necessary, appealed) a prior service complaint about the same matter.  Anything that makes a service complaint less likely to succeed – such as reducing appeal rights – will necessarily impact on ET rights.

The severe problems with delay in the service complaints system are nothing to do with the appeal time frame. Delays occur long before a complaint has got to that point and honing-in on the appellant’s appeal rights is not the place to start. The Ombudsman has declared, in each of her annual reports, that the service complaints system is neither effective, efficient or fair – and a key factor in her coming to this conclusion is the delay suffered by service personnel at first stage. Service complaints are routinely taking far longer than the specified 24 weeks to conclude their first stage. The idea that the best way to tackle the delay is to reduce a servicepersons right of appeal, when that is not where the delay lies, is insulting to service personnel. It also appears that the Decision Body which makes the decision on the service person’s complaint is now going to be able to decide the grounds on which their own decision can be appealed.  More detail will be needed but clearly that is very worrying in principle and is likely to be especially challenging for unrepresented personnel dealing with complex complaints, particularly those in in the lower ranks.

This development comes on the back of a quietly-announced report published just before Christmas which appears to show that the Ministry of Defence has already rolled back very significantly on its acceptance of some of the Wigston Review recommendations, in particular the recommendation that serious service complaints involving bullying, harassment or discrimination should be taken outside of the chain of command, outside of the single services and should be handled by a central Defence Authority for Cultures and Behaviours. The report reveals that this plan appears to have been quietly shelved and that the previously accepted ‘Defence Authority’ will now be little more than an expanded diversity and inclusion team under the Chief of Defence People with little control over complex service complaints themselves. It is a curious outcome given that the MoD, in the full glare of the media when Wigston reported, stated that it would accept his recommendations ‘in full’. The spotlight has moved on and so, it seems, has the MoD’s commitment to this reform.
























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