650.The sections relating to enlistment and terms of service are almost exclusively applicable to those holding the rank or rate of warrant officer and below. One (section 330) applies equally to officers, but this relates to disciplinary matters where it is thought right that the same rights or restrictions should apply.
651.Enlistment is the process by which a person joins the regular forces without being commissioned. A person offering to enlist becomes a member of a Service when he takes an oath of allegiance (or affirms his allegiance) to the Sovereign and the validity of his enlistment is attested by a recruiting officer. However, with regard to the Royal Navy, at present a person “enters” service and does not swear an oath of allegiance to the Sovereign. Under the provisions of the Act the Royal Navy will align its procedures and terminology with those of the other Services.
652.A person who enlists into one of the Services agrees to join for a specified period of regular service and perhaps also for a subsequent period in the reserves. In the Army, the person enlists on the understanding that he will serve in a particular corps, although this is subject to the recruit successfully completing training. A recruit’s enlistment may be subject to a final approval process to take account of any significant changes in circumstances since his offer to enlist was originally accepted by the Service.
653.This section provides that the Defence Council may make regulations by statutory instrument about the process of enlistment into the regular forces. It is envisaged that the regulations will provide in particular for matters such as the appointment and duties of recruiting officers; prohibiting the enlistment of persons under the age of 18 without the consent of prescribed persons; the validity of enlistment; rights to discharge and the creation of offences of knowingly giving false answers during the enlistment procedure (which are subject to specified maximum punishments).
654.This section empowers the Defence Council to make regulations by statutory instrument about the terms and conditions of service of a person who is about to enlist or a person who has already enlisted. They cover in particular the period of service as a regular and in the reserves, the ability of a person to seek to end his service, the ability to continue in service, restrictions as to where some persons might be required to serve and the compulsory transfer of members of the army between corps.
655.Where any person is convicted of an offence of desertion, he will forfeit service for the time that he was absent. Forfeiture of service results in loss of pay for the relevant period. Such a person might be required to continue to serve beyond his original discharge or transfer date for the relevant period to complete his engagement. This section provides that the Defence Council may make regulations by statutory instrument with respect to confessions by members of the regular forces to the offence of desertion under section 8, including whether a trial may be dispensed with in such cases, and the forfeiture of service and the restoration of such service in such a case. It also gives power to the Defence Council to make regulations about the forfeiture of service of a member of the regular forces who has been convicted by the Court Martial of an offence of desertion and the circumstances where such service may be restored.
656.The section further provides that the Defence Council may make regulations about the issue of certificates for members of the regular forces who are absent without leave and the effect of the issue of such a certificate, for example, loss of pay.
657.When the enlisted person leaves regular service he will be transferred to the reserves if he has a liability for such service. Otherwise he will be discharged from his Service. This section provides that the Defence Council may make regulations about the discharge and the transfer to the reserve of enlisted persons.
658.The section also provides for the Defence Council to make regulations conferring a right on warrant officers to discharge following reduction in rank or rate.
659.A person’s rank or rate relates to the authority, responsibility and the professional competence of a person. The Services may need to reduce an enlisted person in rank or rate for reasons of, for example, inefficiency or misconduct, which is distinct from reduction in rank for disciplinary purposes. This section places limitations upon the power to reduce a person’s rank or rate administratively.
660.A CO with the appropriate higher authority permission may order a person who is a warrant officer or non-commissioned officer to be reduced either by one acting rank or, if there is no acting rank, one substantive rank. Higher authority permission is not required, however, if the person to be reduced in rank is a lance corporal or lance bombardier or if the CO holds the rank of Rear Admiral, Major General, or Air Vice Marshal or above. A corporal in the air forces may be reduced to the highest rank which he has held as airman (defined in section 374).
661.The section does not cover reversion from or relinquishment of acting rank when an individual is posted from or replaced in a post for which he has been granted acting rank.
662.The main purpose of this section is to provide harmonised, tri-service provision governing the pay, bounty and allowances of the armed forces. Under the existing law (a mixture of prerogative and statute) various forms of promulgation are used, including Orders in Council under the Naval and Marine Pay and Pensions Act 1865, Royal Warrant and orders under section 2 of the Air Force (Constitution) Act 1917.
663.This section provides for the use of a Royal Warrant to make provision on pay, bounty and allowances for members of the regular and the reserve forces. It also specifies some important provisions which may be made in his way. They include provision for persons to exercise a discretion (some allowances are, for example, discretionary). It also provides that the Royal Warrant may be used to authorise deductions from pay (for example to recover an overpayment). But it cannot be used to authorise a forfeiture of pay. So it cannot be used to authorise the right to pay to be removed, as opposed to authorising that right to be offset by another right, such as the right to recover an overpayment. Forfeiture of pay may only be authorised by or under an Act of Parliament (section 341).
664.Money which can be distributed under the Naval Agency and Distribution Act 1864 (for example payments in relation to salvage and certain naval bounties) will continue to be dealt with under the procedures in that Act. They are excluded from the operation of this section.
665.The statutory right of complaint is considered a fundamental right of a service person. It dates back to at least the 19th century and largely reflects the fact that the terms of service of service personnel are not governed by domestic employment law. As a result service personnel do not have a contract of employment and their rights of legal remedy, in respect of matters arising from service, are limited. The internal statutory redress system has therefore always been of importance if a member of the armed forces is to be able to complain about any matter where he thinks himself wronged in relation to his service. Currently a redress of complaint proceeds through a service person’s CO, through various layers of the command chain, to the Defence Council. In those circumstances the Service Board of the complainant’s Service acts for the Defence Council. At any stage of the redress process, if satisfied with the decision of the decision-making authority then dealing with the complaint, the complainant can withdraw his complaint. If dissatisfied, the complaint will proceed on to the Service Board where two Board members decide the complaint.
666.These procedures have been found, in practice, to be slow. Service Boards have been overloaded with cases, and this has led to delay in cases being resolved. The sections in the Act are in part designed to speed up the process. In most cases a complaint will still be considered by a service person’s CO and then go to one further level within the command chain. If a complaint is not capable of resolution by the command chain, most cases will proceed immediately to a service complaints panel. Service complaint panels are designed to take work away from the Service Boards and panels will be given delegated powers to act on behalf of the Defence Council. The panels will usually comprise serving officers of the rank of commodore, brigadier or above and civil servants. Membership of service complaint panels will come from outside the command chain of the complainant and could be drawn from another Service than that of the complainant or from the civil service. The Secretary of State may make regulations requiring that in the case of a service complaint of a particular description an independent member to sit on a service complaint panel. Examples of where an independent member appointed by the Secretary of State will sit is likely to be appropriate are complaints involving bullying, harassment or other misconduct.
667.Where the Defence Council has not delegated a case (either by delegating the particular case or a relevant category of cases to a complaints panel) they will still be able to decide the matter (as at present acting through a Service Board). In such cases, a Service Board could require a service complaint panel to assist the Board in carrying out its functions, e.g. a service complaint panel could be asked to investigate a particular matter and report to the Board with their recommendations.
668.In those cases where a Service Board deals with a complaint made by an officer, the officer if dissatisfied with the decision of the Service Board, may request reference of his individual grievance to Her Majesty.
669.The Act also provides for the appointment of a Service Complaints Commissioner. He will have two main functions (explained further below). One of these will be to receive from any person allegations that a member of the Armed Forces has been the victim of certain types of wrong in relation to his service. The Commissioner will have power to refer those allegations to an officer, who will have to check whether the alleged victim wishes to bring a complaint. The Commissioner’s second main function will be to provide the Secretary of State with an annual report on the efficiency, effectiveness and fairness of the redress system.
670.This section allows a person who is, or who has previously been, subject to service law to make a complaint if he thinks himself wronged in any matter relating to his service.
671.Subsection (2) enables the Secretary of State to make regulations about the kind of matter that cannot be the subject of a complaint. It is envisaged that regulations will be made to exclude complaints about Service disciplinary proceedings (where other appeal procedures exist) and about matters involving pensions and reserve forces (where alternative dispute resolution and appeals procedures also exist).
672.Subsection (3) requires the procedure for making and dealing with complaints to be laid down in Defence Council regulations. Under subsection (4) the regulations must make provision for the kind of officer to whom a complaint is to be submitted. They must also provide so that:
the officer is able to refer the matter to a prescribed superior officer or to the Defence Council
the complainant is able to require the matter to be referred to a prescribed superior officer, and
both the superior officer and the complainant are able to require the matter to be referred on to the Defence Council.
673.Defence Council regulations may also provide for the manner in which a complaint is to be handled and timescales for making a complaint and for a complainant to apply for his complaint to be referred to a superior officer or to the Defence Council (subsections (5) and (6)).
674.Any person considering a complaint must decide if the complaint is well-founded and if it is he must grant such redress which is within his authority to give and which he considers would be appropriate (subsections (7) and (8)).
675.This section permits the Defence Council to delegate all or some of its responsibilities under section 334 to a panel, referred to in the Act as a “service complaint panel”. Members of a service complaint panel are appointed by the Defence Council (except independent members appointed by the Secretary of State where required by regulations under section 336(7).
676.Subsection (4) permits the Defence Council (in relation to all or any complaints) to delegate to a civil servant or officer
the decision on which of its functions are to be delegated to a service complaint panel, and
the Council’s function of appointing the panel members.
677.Subsections (6) and (7) enable the Defence Council to obtain assistance in other ways. Under subsection (6) the Defence Council may require a panel to assist them and (under subsection (7)) may appoint a person (including a panel or panel member) to investigate a complaint.
678.This section sets out the eligibility criteria for membership of a service complaint panel. Generally a member must be a serving officer of at least the rank of brigadier (or equivalent in the other services) or a civil servant. Panels must have at least two members, and at least one member must be a serving officer of such a rank. The section also empowers the Secretary of State to make further provision in regulations about its composition and procedure, including:
provision for additional or stricter eligibility requirements, and
provision requiring a panel to include one member who is neither a member of the armed forces nor a civil servant.
679.Officers have traditionally had the right to have their complaint referred to the Sovereign for Her Majesty to decide whether to give the Defence Council any directions about the complaint. This section lays down certain conditions that must be satisfied for an officer to have his complaint referred to Her Majesty. One condition is that the complaint must have previously been decided by the Defence Council, i.e. by a Service Board, and that its function has not been delegated to a service complaints panel to any extent. So the matters about which an officer will be entitled to complain to Her Majesty will be limited to those matters that the Defence Council decides not to delegate decisions on to service complaint panels.
680.Under this section the Service Complaints Commissioner (who is to be appointed under section 366) will be able to receive from any person allegations that a member of the Armed Forces has been the victim of certain types of wrong in relation to his service, or that a former member was the victim of such a wrong while in the Armed Forces. The wrongs in question will be prescribed in regulations made by the Secretary of State. It is intended that they will include bullying, harassment and other misconduct. The Commissioner will have power to refer those allegations to an officer, who will have to check whether the alleged victim wishes to bring a complaint about the alleged wrong.
681.Under this section the Commissioner must provide the Secretary of State with an annual report on the efficiency, effectiveness and fairness of the redress system, the exercise by him of his own function under section 338 of referring allegations and any related matters that he consider appropriate or the Secretary of State directs. The reports must be laid before Parliament by the Secretary of State. The Secretary of State is also empowered to require the Commissioner to provide him with other reports on aspects of the redress system or on matters relating to the Commissioner’s function of referring allegations.
682.This section prevents aliens from being members of the regular forces or of HM Forces raised under the law of a British overseas territory. Section 3 of the Act of Settlement 1700 (which would otherwise prevent certain non-UK nationals from holding any “office or place of trust” in HM Forces) is disapplied so that it is clear that the position regarding aliens in the armed forces is governed by this section alone. An alien is a person who is neither a citizen of the UK, the Commonwealth or the Republic of Ireland nor a British protected person.
683.However, despite this general prohibition, the section allows the Defence Council to make regulations excluding certain aliens from its operation. This would allow Gurkhas (who are aliens) to be members of these forces.
684.This section provides that there shall be no forfeiture of the pay of a person subject to service law unless authorised by or under the Act or under any other Act (subsection (1)).
685.Subsection (2) provides that there shall be no deduction from the pay of a person subject to service law unless authorised by and under the Act or any other Act.
686.A Royal Warrant, or a regulation, order or instruction by the Defence Council, may provide for the imposition of any forfeiture and the making of any deductions authorised under an Act and for prescribed matters concerning such forfeitures and deductions (subsection (3)).
687.A person subject to service law shall (subject to any forfeiture) remain in receipt of a minimum rate of pay (as may be prescribed by regulations of the Defence Council) notwithstanding that deductions are made from his pay (subsection (4)).
688.Where there is forfeiture of pay for a period and a person receives a minimum rate of pay for that period, the amount received may be recovered by deduction from pay (subsection (5)).
689.Any amount authorised to be deducted from pay may be deducted from any pay, bounty, allowance or grant due to the relevant person, and this applies wherever deductions are referred to in section 342 (subsection (6)).
Section 342: Permitted forfeitures and deductions
690.This section provides a power for the Secretary of State to make provision to enable the Defence Council or authorised officers to make orders:
authorising forfeiture of pay of a relevant person for a period of prescribed absence from duty;
authorising deductions from the pay of a relevant person –
to satisfy any amount paid by or on behalf of a service authority to meet a sum ordered to be paid by him by a civilian court anywhere;
to compensate for loss of, or damage to, public or service property which a prescribed person is satisfied the relevant person caused by a wrongful act or negligence;
to satisfy a financial penalty which requires him to make payment;
to satisfy a prescribed payment which he is required to make under a prescribed maintenance order, or an obligation on his part to make payments in accordance with a prescribed maintenance assessment or calculation;
to be appropriated towards the maintenance of a spouse (or former spouse), civil partner (or former civil partner) child or prescribed person;
to satisfy an amount required to be paid by him as a result of any judgment or order enforceable by a court in the UK.
691.Subsection (2) provides a list of provisions that may in particular be made by regulations under the section.
692.Under subsection (3) the Defence Council or authorised persons may remit certain forfeitures or deductions.
693.Subsection (4) defines “financial penalty”, “prescribed”, “public property”, “relevant person” and “service property”.
694.Subsection (5) makes it clear that the reference in this section to a judgment or order enforceable by a court in the UK includes a judgment enforceable by the Enforcement of Judgments Office.
695.Service inquiries will replace the different statutory and non-statutory provisions which the armed forces have for holding formal inquiries known as Boards of Inquiry, Unit and Regimental inquires and ships’ inquiries. A service inquiry will be an internal inquiry for the purpose of establishing the facts of a matter and making recommendations to prevent a recurrence. An inquiry will be conducted by a panel, the membership of which will depend, amongst other things, on the matter into which it is inquiring.
696.This section provides the Secretary of State with the relevant power to make regulations for causing inquiries to be held in prescribed circumstances.
697.Subsection (2) sets out some of the main things about which the regulations in particular may make provision. These include the matters about which inquiries must or may be held and the membership and functions of the service inquiry panel.
698.Subsection (3) sets out further provision which may be made by the regulations. The regulations may, in particular include provision enabling designated persons to decide in prescribed circumstances that a matter that would otherwise have to be referred to an inquiry panel need not be referred. They may also make provision about the taking of oaths and affirmations and rights of attendance at a service inquiry. Evidence given to an inquiry is not to be admissible at summary hearings under the Act or in proceedings before prescribed courts, except in the case of proceedings for a prescribed offence.
699.Subsection (4) enables the regulations to include (subject to appropriate modifications) provision equivalent to section 35 of the Inquiries Act 2005. This provides sanctions for non-compliance with requirements imposed by an inquiry panel (for example failure, without a reasonable excuse, to comply with a formal notice requiring attendance at the inquiry or the production of evidence) and sanctions for actions that are likely to hinder the inquiry (for example doing things intended to distort or alter evidence given to an inquiry panel).
700.This group of sections creates several criminal offences relating to service matters that can be committed by any person.
701.Subsection (1) makes it an offence to aid, abet, counsel or procure the commission by another person of an offence under section 8 (desertion) or section 9 (absence without leave). (An offence under section 8 or 9 may only be committed by a person who is subject to service law.)
702.Subsection (2) makes it an offence intentionally to do something (or omit to do something) that causes a person, whom the offender knows to be subject to service law, to be absent without leave.
703.Subsection (3) makes it an offence intentionally to impede the apprehension or prosecution of a person subject to service law who has committed an offence contrary to section 8 or 9 where the offender knows or believes the person subject to service law to be guilty of the relevant offence.
704.Subsection (4) provides that an offence contrary to this section may be committed in a “relevant territory” by any person, but outside a “relevant territory” only by a UK national or by a person who is resident in a “relevant territory”. Subsection (5) defines “relevant territory” as the UK, the Isle of Man or a British overseas territory.
705.Subsection (7) specifies the maximum sentences that may be passed on a person guilty of an offence under this section on summary conviction and on conviction on indictment. The term “statutory maximum” used at subsection (7)(a) is defined at section 377(6) and (7).
706.Subsection (1) makes it an offence to aid, abet, counsel or procure the commission by another person of an offence under section 16 (malingering). (An offence under section 16 may only be committed by a person who is subject to service law.)
707.Subsection (2) makes it an offence to do something that causes a person, whom the offender knows to be subject to service law, an injury, or to do something that aggravates or prolongs an injury of his with the intention that the person subject to service law will avoid service.
708.Subsection (3) makes it an offence to do something that causes a person, whom the offender knows to be subject to service law, to believe that he has an injury, or to do something that causes another person to believe that the person subject to service law has an injury, with the intention that the person subject to service law will avoid service.
709.Subsection (4) provides that an offence contrary to this section may be committed in a “relevant territory” by any person, but outside a “relevant territory” only by a UK national or by a person who is resident in a “relevant territory”. Subsection (5) defines “relevant territory” as the UK, the Isle of Man or a British overseas territory.
710.Subsection (1) provides that it is an offence for any person intentionally to obstruct someone subject to service law acting in the course of his duty, if he knows or has reasonable cause to believe that the person he is obstructing is subject to service law.
711.Subsection (2) specifies that the offence may only be committed in the UK, the Isle of Man or a British overseas territory.
712.Subsection (3) specifies the maximum sentences that may be passed on a person guilty of an offence under this section on summary conviction.
713.Subsection (1) provides that where an offence contrary to section 340 or 341 is committed in a British overseas territory, proceedings may be taken and the offence may otherwise be treated as having been committed in the UK or the Isle of Man. It also provides that this shall not prevent proceedings being taken for the offence in that British overseas territory.
714.Subsection (2) provides that where an offence contrary to section 340 or 341 is committed otherwise than in the UK, the Isle of Man or a British overseas territory, proceedings may be taken and the offence may otherwise be treated as having been committed in the UK, the Isle of Man or a British overseas territory.
715.Subsection (3) defines “United Kingdom national” for the purposes of sections 344 and 345.
716.Subsection (4) specifies what is meant by references in sections 344 to 346 to a person knowing, or having reasonable cause to believe, that another person is subject to service law.
717.This section makes provision regarding sentences that can be imposed in a British overseas territory following a conviction for an offence under sections 344, 345 or 346 or under regulations made by virtue of section 343(5)(b) (Service inquiries). It empowers the British overseas territory to provide in law for the maximum sentence of imprisonment or the maximum fine to be higher or lower than that provided for in the Act, and in addition empowers it to specify the amount of local currency that is to be considered as equivalent to the maximum fine.
718.The effect of this is to allow British overseas territories to set penalties in line with those provided for under their own law for similar offences, taking into account matters such as average local incomes which may differ from those in the UK.
719.This section preserves the exemption for vehicles belonging to or in the service of HM Forces from tolls or charges in respect of their passing over roads or bridges and through tunnels. This section also covers schemes for imposing charges on the keeping or use of vehicles on particular roads.
720.This section exempts items used by a serviceman in the course of his duty from being taken in execution of a court order.
721.This section introduces Schedule 12. Schedule 12 makes provision for admitting persons suffering from mental disorder to service hospitals outside the British Islands, and detaining them there temporarily for assessment or treatment, in certain defined circumstances. The provisions apply only to persons subject to service law, or civilians subject to service discipline, who are outside the British Islands.
722.This section re-enacts a provision which authorises certain officers outside the UK to take affidavits or declarations from persons subject to service law or to service discipline, where an otherwise qualified person may not be available. This enables people who are serving overseas to nevertheless attend to such legal business that requires affidavits or declarations.
723.The section provides for the matters which the authorised officer must state in the jurat or attestation at the end of the affidavit or declaration, and further provides that a statement contained in an affidavit or declaration that purports to be signed by an authorised officer shall be admitted in evidence without separate proof of the signature or the facts contained in the statement.
724.This section gives effect to Schedule 13, which amends those sections of the Armed Forces Act 1991 that provide for the protection of the children of Service families abroad.
725.The operations and effectiveness of the Armed Forces depend fundamentally on the exercise of powers to give commands. Some authority to give commands derives simply from rank. A superior may give commands to someone of lower rank. Other parts of this authority flow from appointment to a particular responsibility, for example the authority of a CO over those within his unit.
726.This section deals with that part of the authority to command which arises simply from rank. It provides so that this authority is not limited by Service: an officer, warrant officer, or non commissioned officer of any Service (Army, Royal Navy, RAF or Royal Marines) has this authority over anyone of lower rank in any of the Services. The section accordingly makes tri-Service the general power to give orders arising from rank.
727.This section gives the Secretary of State power to make regulations allowing the service of process on “relevant persons” in connection with prescribed proceedings. “Relevant persons” are defined as members of the regular forces, members of the reserve forces who are subject to service law (unless they are so subject on account of undertaking any training or duty) and civilians subject to service discipline (subsection (3)). The regulations may determine when service of process on a person’s CO will count as service on the person himself and when service of process has no effect (subsection (2)), for example when the CO certifies that the person is under orders for active service and that, in the CO’s opinion, there is not enough time for the person to attend the hearing and return.
728.This re-enacts a current provision to the same effect and makes void assignments and charges made of or against a serviceman’s pay, pension, bounty, grant or allowances. It further prevents a court from making an order which has the effect of preventing a serviceman receiving his pay etc and directing payment of it to another person. There are two exceptions to this general prohibition: the making or variation of attachment of earnings orders, which through the Attachment of Earnings Act 1971 may only be made against service pensions and gratuities; and the payment of a serviceman’s earnings to his trustee in bankruptcy for use in discharging his debts.
729.Forces raised under the laws of a British overseas territory (“BOT”) are Her Majesty’s forces. Four BOTs (Bermuda, Gibraltar, the Falkland Islands and Montserrat) raise defence forces under their own law, and this section makes provision in relation to that.
730.Paragraph (a) is necessary because BOTs do not have the power to make legislation with extraterritorial effect without express permission.
731.Paragraph (b) provides that a BOT which makes legislation for its own defence force may do so by applying some or all of the provisions of this Act. This is not mandatory, and a BOT may make separate legislation for its own defence force.
732.This section introduces Schedule 14 which sets out amendments to the Reserve Forces Act 1980 and the Reserve Forces Act 1996, the majority of which are consequential upon changes to the provisions governing the regular forces made in this Act or remove redundant provisions in relation to the reserve forces.
733.This section provides that all servicemen executed for certain offences, described as “relevant offences”, committed between 4 August 1914 and 11 November 1918 shall be taken to be pardoned. The relevant offences, which include desertion and cowardice, are listed in subsection (3). The section does not lift the convictions or sentences of the servicemen affected. Nor does it create any new rights, entitlements or liabilities. It does not affect the royal prerogative of mercy.