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Shaykh Daoud’s Blog

The Armed Forces Act 2006

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Second Comment

On 1 January 2009, the Armed Forces Act 2006 begins to come into force to be fully implemented by October, replacing the various service acts that preceded it including the Armed Forces Act 2001.

The Preamble to the 2001 Act stated on 11 May 2001:

“An Act to continue the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957; to make further provision in relation to the armed forces and the Ministry of Defence Police; and for connected purposes…”

Mr Kevan Jones (Parliamentary Under Secretary for the Minister of Defence) wrote in a written ministerial statement on 7 October 2008 about the 2006 Act (Hansard):

“The legislation will be brought into effect in October 2009. We do, however, plan to maintain momentum by making the necessary legislative changes to enable the director of service prosecutions, created under the Armed Forces Act 2006, to prosecute all cases under the existing Service Discipline Acts from 1 January 2009. We will bring before Parliament in the autumn the necessary secondary legislation to achieve this.”

There are two extremely serious flaws in this new Act and the thinking behind it, one of which is implied in the Preamble quoted above.

These flaws are, firstly, the virtually complete absence of a fresh appraisal or new thinking about the defence posture of Her Majesty’s Armed Forces in the 21st Century from the underlying assumptions of the 1950s-era service acts; and, secondly, as the Emplaw website (http://www.emplaw.co.uk/researchfree-redirector.aspx?StartPage=data%2f200506131.htm) commented on the 2006 Act:

“One of the most important purposes of the Armed Forces Act 2006 is to establish a single permanent Court Martial, covering all three Services, to replace the one-off courts martial that have previously had to be convened for each trial. The intention is that there should be “a single, harmonised system governing all members of the armed forces” (see para 16 of the explanatory notes to the 2006 Act (pdf version)).

Mr Jones had commented in the statement quoted above:

“When it is implemented, the Armed Forces Act 2006 will allow us to replace the three current Service Discipline Acts and other armed forces legislation with a single system of service law. The Service Discipline Acts, which have provided the legal basis for discipline in the armed forces since the 1950s, will be repealed in due course.”

The implications of these seem to have escape comment by the “Tribunes of the People”, which further vitiates any claim to a cosy status as Lord Macaulay’s “Fourth Estate of the Realm”.

Second Flaw

To take the second flaw first; this appears to be a further capricious twist to New Labour’s revolutionary assault on the Common Law and Magna Carta.

Enshrined in these was the principle of the judgement of one’s peers, most clearly expressed through trial by jury.

The form of that peer judgement that evolved for the armed forces was the court martial, and the serviceman – and latterly woman – could rely on the panel of officers who made up the court being chosen from those who had faced the conditions, or similar ones, in which the indicted offence occurred. The prosecuting officer was one who was serving in a similar deployment, and the accused’s “friend” also came from just that environment. So everyone knew and had experienced what was on trial, and was as far as possible an expert in those matters.

All officers had to study the Manual of Military – or appropriate other service – Law and King’s (or Queen’s) Regulations so as to be ready to serve either as prosecutor or defender. Professional lawyers were rarely involved, and when they were they tended to be servicemen themselves unless the offence was under the catch-all provision for “civil offences” – Section 70 of the Army Act 1955.

It would have been unthinkable to have the commanding officers of infantry battalions sitting in judgement on a naval captain whose ship had been involved in a collision, let alone civilian justices who had never served considering a refusal to obey under fire what the accused claimed was an unlawful command.

Yet these potential travesties are all too likely in “a single permanent Court Martial, covering all three Services, to replace the one-off courts martial that have previously had to be convened for each trial”.

And there are the additional dangers of senior officers detailed to this permanent Court Martial getting out of date (rapidly so in war time) and lacking experience of the actual current situations facing the servicemen and women – which would be prima facie unjust; and of letting loose professional lawyers into this world that is incomprehensible to the average civilian at the best of times.

There were, indeed, travesties that occurred under the “old” (pre-2006 Act) system.

A famous one was the Court Martial of Lt Harry ‘Breaker’ Morant of the Bushveldt Carbineers in South Africa during the Second Boer War, and his subsequent execution at Pretoria Jail on 27 February 1902 by a firing squad provided by the Cameron Highlanders. There were others where Military Law was used in an insurrectionary situation such as in Ireland in 1916-21.

In all probability, the IRA men who were shot would now be covered by the APGC1977: assuming that is that the UK, unlike the USA, still abides by the Geneva Conventions.

It is relevant that later revisions and amendments of the Army Act 1955 stipulate quite unequivocally that all service personnel are bound under the Act by the Geneva Conventions Act 1957 which it incorporates.

It is to be hoped that this is preserved in the Armed Services Acts, and that the dangerous claim of Dr John Reid when he was Secretary of State for Defence that the Geneva Conventions were “out of date” in the era of the Global War On Terrorism has been disregarded and scorned.

This point leads to the consideration of the First Flaw.

First Flaw

The Army Discipline Act under which Martial Law was being applied in Ireland of that time had been passed in 1913 (and that in turn was based on the Army Act 1881), and it has been commented that the particular provisions of that were not repealed or modified until 1930 when the death penalty was removed for all offences other than mutiny and those civil offences for which capital punishment could be applied.

This is germane. The 1930 Army Act is the basic document that the 1955 Army Act grew out of.

The Armed Forces Acts 2001 and 2006, as I pointed out in the First Comment of this (below), are virtually word-for-word the Army Act 1955. Can the flaw be seen, now?

The 1930 Act was the legal code under which the British Army conducted itself during the Second World War, the opening stages of the Vietnam War, the Partition of India, the early years of the Malayan Emergency, the Mau Mau Emergency in Kenya, EOKA in Cyprus, and the Korean War.

The British Empire was at its height, by many criteria, in 1940. We didn’t finally finish leaving the Empire until the mid-to-late 1960s. Some would quibble that we still haven’t left the last vestiges, such as Belize and the South Atlantic Dependencies, and there are many Irishmen who would point to Ulster.

Be that as it may – and, actually, it doesn’t affect my point, merely embellishes it as I will develop – why is the role and posture of Her Majesty’s Armed Forces in the opening decade of the 21st Century being conditioned by thinking that might have been original in the early decades of the 20th? That, and a bureaucrats’ obsession with impractical “tidiness” no matter which real people suffer as a result.

To state it baldly. The Army Acts of 1881, 1913, and 1930 were promulgated when Britain had that Empire upon which the Sun never set. The thinking which they enshrined was suitable for an Army that was policing and defending such an Empire, and the Navy Acts of similar years were framed for the Royal Navy that was keeping the seaways safe for that Empire.

The Army Act 1955 still contains the underlying philosophy of Empire. And the Armed Forces Act 2006 is virtually word-for-word the same Act. Therefore, the concepts and assumptions which the new Act promulgates are, effectively, those of 1955, which were those of 1930, which were those of 1913, which were those of 1881.

But – let me put it simply for any parliamentarians or central government bureaucrats who might read this – in 2008 Britain does not have an Empire: we have not had an Empire for about 50 years. So why do Her Majesty’s Armed Forces have an Imperial defence profile? Is it so that we can supply auxiliary legions for the USA?

There needs to be a fundamental – a root-and-branch – reappraisal of what HMF are for, and on which services most money needs to be spent.

The Army should not be being used to prosecute illegal wars of aggression against far-flung places, but should be ready to defend the UK Home Base and the Dependent Territories. A lot of that defence posture can be done by the Territorial and Reserve Forces.

We need to keep the seaways safe for our trade and for the support of the dependencies. This means an emphasis on the Royal Navy and Royal Marines – it also implies a key role for the Royal Naval Air Service and the Royal Air Force.

And then there is the matter of disaster relief. This has been identified as an area in which the military is uniquely well equipped to give effective and instant support to.

And within this simple statement of what HMF should be doing, it should not be beyond the wit of bureaucrats and politicians (although it may cause considerable strain to it) to produce a viable and affordable non-Imperial defence posture.

It may well be that we should be looking to the later years of the 18th Century, rather than those of the 20th Century, for inspiration. And perhaps the phrase ‘Balance of Power’ might come to mind?

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Written by Daoud Rosser-Owen

December 20, 2008 at 12:22 am

Posted in Uncategorized

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