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The Armed Forces Bill 2021 – IDA Comments

This is the collective thoughts of the Independent Defence Authority regarding the opening debate on the Armed Forces Bill 2021, discussed in the House of Commons on 8th February 2021.

Whilst it is recognised an Armed Forces Bill is critical to continue the effective delivery of military capability it is designed to build on the Armed Forces Act 2006 that radically brought the separate single service Acts together.

As a piece of legislation, it has some sound ideas such as introducing a Service Police Complaints process akin to the Independent Office for Police Conduct and the placing of the Prosecutors Protocol on a statutory footing allowing Parliament not the MoD to ensure the allocation of criminal cases between the civil and service justice systems.

However, we believe it is missing a significant opportunity, an opportunity that would help enable the defence element of the Integrated Defence and Security Review, an opportunity to rebalance and lose from Defence some expensive capabilities and bring Defence closer to the society it recruits from and structures that it protects.  Much has changed in Defence and in broader UK society in the past 15 years since the 2006 Act was introduced.

The appropriate question to ask therefore is, ‘has the situation changed?’

The Service Act, an amalgam of the Army, Navy and Airforce Acts in 2006 was a historical throwback to ensure that British service personnel deployed overseas, which were the majority when the Acts came into being, would be subject to English Law under various status of forces agreements rather than local laws. The need in this case was clear.

However, the majority of our service personnel and others who fall under the act are now UK based. The Lyons Review recommended more serious charges are dealt with through the civilian system.  However, does this go far enough?

Surely now is the time to recognise that all criminal discipline under the current Act should be transferred to civilian jurisdiction and the Armed Forces Bill enable discipline through the comprehensive employment legislation we have in this country, the same as it is for every other employer. Why must Defence be different?

Why do we need a separate legal infrastructure for such a small number of people? Why shouldn’t we simplify the investigation/prosecution chain from Victim, Service Police, Chain of Command, Service Legal, Service Police, Civilian Police, Service Prosecuting Authority – CPS debate, Summary Justice – Courts Martial – Civil Courts debate, Service Employment actions. To Victim, Police, CPS, Court, Service Employment action? It would make a hugely more streamlined service and immediately negate the need for a Service Police Complains Process and yet another Ombudsman and associated staff. The operational benefits along with fiscal savings are obvious.

One current stumbling block is that service personnel killed on operations in combat, (not through accident, suicide or service person on service person) can only be found as “unlawfully killed” by a UK Coroner thereby requiring a Police investigation, giving the Service Police a huge burden of cases that will never come to court. That could be solved if the Armed Forces Act 2021 enabled a finding of “Killed in Action.” The positive impact this would have on families is immeasurable.

The Armed Forces Bill 2021 could enable a core element of the MoD Police or other police to have a deployable capability for the extremely small number of incidents that require police investigation in operational theatres outside this.

This would go some way to addressing the cause of the huge number of re-investigations and litigation following accusations in Iraq, what is happening with Northern Ireland Veterans and what could happen with Afghanistan Veterans; one of the fundamental criticisms of the Overseas Operations Bill.

The Lyons Review opened the debate, the Armed Forces Bill ignores the Lyons review recommendations, so we ask MPs not just to bring those recommendations into the Bill, but to take them further so that Armed Forces Discipline is completely in line with that of any UK employer. This would improve the relationship between ‘Defence’ and its ‘People’; a relationship that is under stress.

Whilst we recognise and embrace in the current system the move to create a Service Police Complaints process and Ombudsman. By recognising if what we ask above is delivered, this post and associated costs and resources, will not be needed. There are other questions that should be answered as part of the examination of the Bill.

The first, MPs must ask, is why does there need to be a Service Police Complaints process and Ombudsman, why not resource the IOPC to provide oversight and therefore consistency?

The second is independence. The outgoing Independent Service Complaints ombudsman told the House of Commons Defence Select Committee that her independence was by dint of personality only. Her predecessor raised this as an issue post Deepcut.

How in any sense of the word can that deliver truly independent oversight and if the Service Police Complaints Ombudsman is on the same footing must our people rely on “don’t worry, on a good night and a fair wind it will be ok?” All of the evidence we have seen and that given by the ombudsman is that it is not ok.

The Wigston Review on inappropriate and allegedly unlawful behaviour in the Services(https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/817838/20190607_Defence_Report_Inappropriate_Behaviours_Final_ZKL.pdf) formally set the conditions when it recommended, “The establishment of a Defence Authority responsible for cultures and inappropriate behaviours.” We support this and the Defence Boards supported it, what is critical is its independence. Independence by personality, we argue, is not enough.

The Danuta Gray, progress review of Wigston published in December 2020 (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/941813/20201204-Unacceptable_behaviours-progress_review_2020_Public_for_DDC.pdf), seems to have missed many of the Wigston recommendations, however it is not surprising as she is in a position where she is marking her own teams homework and can in no way be considered independent. If all of the evidence being presented to ministers and parliament is through self-marked homework, parliament runs a very real risk of being misled.

Given the outgoing Service Complaints Ombudsman, Nicola Williams, went on to say that 90 % of those who should submit a service complaint, don’t because of a lack of trust in the system. Ms Williams went on to state that 70% of the complaints that get to her staff should have been dealt with at a lower level and acknowledged that 100% of complaints caused mental anguish and industry to all those involved.  This impacts our local authorities, our NHS and the charity sector, not just the MoD.

She described a broken system. The MoD investigates itself, crafts reports on those investigations itself thereby perpetuating its own narrative. There is clear evidence in what many in the IDA have experienced personally, that when Defence does not like the facts, it then creates a new narrative, on its own terms and presents this as fact, knowing there is no mechanism to hold it to account. There is no mechanism to hold the MoD to account especially in the People area and with Veterans – everything is internal.  This must, we respectfully ask, cease. It is wasting money, damaging people and we suggest, tarnishing the hard-won reputation of our Armed Forces.

The Armed Forces Bill gives a clear opportunity to establish in legislation a truly Independent Defence Authority able, like OFSTEAD does in education, to hold the people area of defence to account in a positive way.  After all, using 2018/19 figures, 30.6% of the £38 Billion defence budget was spent on people, with the most, 25.7% of those in uniform. Given that amount of taxpayers’ money then it is right that defence chiefs say, “people are our most important asset,” in simple annual cash terms they are, yet the way they are treated tells a different story.

Finally, recognising that the Service Complaints Ombudsman says the system is broken, the Overseas Operations Bill fails to recognise the impact that broken system has on the ability for service personnel to complete the system before suing the MoD if required and these in that bracket will miss the 6-year timeframe.  The Armed Forces Bill exacerbates the anguish of this already broken process by reducing the timeframe for appealing a service complaint from six to two weeks – in the most complex of complaints, two weeks will not be enough time to read the files never mind draft, frame and lodge an appeal. Another example of looking after “the most important asset?”

We stand ready to show how it would work, to what gain, and how it will evolve over time and importantly, what costs it would save the public purse – we anticipate that the creation of an IDA would save billions in real term expenditure, allowing Government to better optimise Defence spending to great effect, whilst enhancing operational delivery.