Armed Forces (Flexible Working) Act 2018

Commentary on provisions of Act

Section 1: Regular forces: part-time service and geographic restrictions

14. Subsections (3) and (4) of section 1 amend section 329 of AFA 2006. Subsection (3)(a) inserts into section 329(2) a new paragraph (ha) which extends an existing regulation-making power so that the Defence Council (the highest level of military command and administration under Her Majesty) can make provision by regulations about part-time service for members of the regular Armed Forces. Subsection (3)(b) substitutes the existing paragraphs (i) and (j) of section 329(2) to enable the Defence Council to make regulations about geographically-restricted service for regulars and the maximum number of occasions a regular can be required to serve without such a geographic restriction.
15. Subsection (4) of section 1 inserts into AFA 2006 a new section 329(3A). This provides that rights conferred on a person under the new regulations made about part-time service or geographically-restricted service may be varied, suspended or terminated in prescribed circumstances.
16. Individuals will not need to specify any particular reason for wanting to move on to one of these new forms of service. It is anticipated that these new forms of service will be attractive, for example, for regulars who want to spend some more time with their families, for those who may wish to study for an extended period without having to leave the Service, or for those who have caring commitments.
17. It is envisaged that the new Defence Council regulations which will be necessary to implement the amendments made in this Act will cover:
    1. the right of an enlisted regular to apply in writing to his Service for part-time working and/or geographically-restricted service (subject to some limited restrictions to prevent an applicant making a fresh application whilst an existing one is still being considered);
    2. the consideration of such an application by a 'competent Service authority' and the effect of an approval and the ability of the Service or the individual to vary, suspend or terminate the arrangement in prescribed circumstances, for example: national emergency or some form of manning crisis;
    3. the maximum number of occasions a person can be required to serve without a geographic restriction;
    4. the ability of the Service to refuse applications, broadly on the ground of defence need; and
    5. a right of appeal against a refused application to a 'higher authority' (within Defence). It will also continue to be possible for regulars to raise a service complaint, under the statutory service complaints system in Part 14A of AFA 2006, if they consider they have been "wronged in relation to their service" due to any aspect of this process, including decisions taken. The independent Service Complaints Ombudsman oversees this system, and can investigate alleged maladministration in the handling of complaints and the merits of the complaint itself. The Ombudsman can make findings and recommendations in a report to the Service to remedy any wrongs found.
18. Subsection (5) of section 1 amends section 373 of AFA 2006, by inserting new paragraphs (ea) and (eb) into section 373(3). The effect of these paragraphs is that any regulations made under the new provisions inserted into AFA 2006 by this Act will be subject to the affirmative procedure.
19. There are currently four sets of terms of service regulations made by the Defence Council under section 329 AFA 2006. The regulations are listed above in the Legal Background section. It is envisaged that the necessary changes to be made by the new Defence Council regulations will be by way of amendments to the existing terms of service regulations.
20. Section 329(2)(i) and (j) AFA 2006 already permits the Defence Council to make regulations about geographically-restricted service. The only current use of that power is in the Army. Their terms of service regulations make provision for a local service engagement under which a person can enlist and restrict their service to a particular area in the UK. Those enlisted for local service can only be required to serve outside their specified area for 30 days in a year. In addition to the local service engagement, the amended powers will enable Defence Council regulations to be made to protect regulars from being separated from their permanent home base for prolonged periods.

Section 2: Consequential amendments

21. Subsections (2) to (4) of section 2 amend sections 9, 9A and 23 of the Juries Act 1974. The current legislation only permits "full time" members of the regular Armed Forces to be automatically excused from jury service, or to be able to have a discretionary deferral. These consequential amendments will ensure that the new part-time regulars will continue to benefit from these protections. The Juries Act 1974 only extends to England and Wales.
22. Subsection (5) of section 2 amends Group C of Part 3 of Schedule 1 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 to make similar provision about excusal as of right from jury service in Scotland.

Section 3: Short title, commencement and extent

23. Section 3 will come into force on Royal Assent. Sections 1 and 2 will come into force on a day appointed by the Secretary of State in regulations which are not subject to parliamentary procedure, and which may make different provision for different purposes.
24. Subsections (5) to (8) of sections 3 provide for the territorial extent of the Act. Sections 1 and 3 extend to the whole of the UK, the Isle of Man and the British overseas territories, except Gibraltar. Section 2(1) to (4) extends to England and Wales only. Section 2(5) extends to Scotland only.
25. Subsections (6) and (7) of section 3 make further provision about the extent of the provisions in the Act which amend AFA 2006. The changes that the Act makes to AFA 2006 may be extended by Order in Council to the Channel Islands. If such an Order is made, it can modify those changes (so that the law of the Channel Islands is not the same as that of the United Kingdom). The changes that this Act makes to the AFA 2006 extend directly (i.e. without the need for an Order in Council) to the Isle of Man, and the British overseas territories (except Gibraltar), but an Order in Council may be made to modify the Act in its application to any of those territories. The provisions applicable to members of the armed forces will apply to them wherever they are in the world.