Review of sentence following offer of assistance

Armed Forces Bill – in the House of Commons at 1:57 pm on 11th May 2016.

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Photo of Penny Mordaunt Penny Mordaunt Minister of State (Ministry of Defence) (Minister for the Armed Forces)

I intend to be brief, Madam Deputy Speaker, as this is not a contentious issue.

I hope you, Madam Deputy Speaker, will allow me briefly to update the House. Our team in the Invictus games so far has a medal total of 89, 55 of which were won on the first day of the competition. One of our chief cheerleaders is my hon. Friend the Minister for Defence Personnel and Veterans, who has taken through this Bill. I am afraid that the House will have to make do with me today.

I am pleased to welcome the Armed Forces Bill back to the House to consider amendments made in the other place. These two amendments deal with a matter raised by the Delegated Powers and Regulatory Reform Committee in its 21st report—the regulation-making powers in new sections 304D(10) and 304E(9), which are inserted into the Armed Forces Act 2006 by clauses 10 and 11. The powers allow regulations to be made in relation to appeals against reviews of sentence.

Clauses 10 and 11 are part of the statutory framework that the Bill creates for offenders who co-operate with investigations and prosecutions. That framework closely follows the provision in the Serious Organised Crime and Police Act 2005, which applies to the civilian criminal justice system. It includes provisions that allow a person to receive a reduced sentence in return for assisting or offering to assist an investigator or prosecutor. A decision of the court martial on such reviews may be appealed by the person who is sentenced or the director of service prosecutions. The Lords amendments make provision with respect to such appeals.

The Bill does not set out the detailed rules that will apply to the conduct of proceedings on such appeals. Instead, new sections 304D and 304E of the 2006 Act provide for those rules to be set out in regulations made by the Secretary of State. The rules will be based on existing rules in the Courts-Martial (Appeals) Act 1968 that govern the conduct of appeals from the court martial to the court martial appeal court or the Supreme Court.

Accordingly, the Bill confers powers on the Secretary of State to make regulations in relation to appeals against reviews of sentence that contain

“provision corresponding to any provision in Parts 2 to 4 of the Court Martial Appeals Act 1968, with or without modifications.”

That is provided for in new sections 304D(10) and 304E(9). Such regulations would be subject to the negative procedure.

The Delegated Powers and Regulatory Reform Committee was content with that, subject to one point of concern. The Committee noted in its report that the 1968 Act includes some provisions that may be modified by the Lord Chancellor by regulations subject to the affirmative procedure. The relevant provisions in the 1968 Act are in sections 31A, 33, 33A, 46A and 47. They relate to the recovery of costs and expenses arising from appeal proceedings. The Committee’s concern is that the new regulation-making powers in new sections 304D(10) and 304E(9), which are subject to the negative procedure, could be used to make provision about the recovery of costs and expenses which, if made under the 1968 Act in relation to appeals covered by that Act, would have to be made by affirmative procedure regulations.

The Government therefore submitted amendments in the other place to clauses 10 and 11 to limit the powers in the sections of the Armed Forces Act 2006 under which regulations may be made about appeals. The effect of the amendments is twofold. First, regulations under those sections may not make provision corresponding to that which the Lord Chancellor may include in regulations under the 1968 Act. Secondly, regulations under those sections may confer regulation-making powers corresponding to those in the 1968 Act, but only if the exercise of the powers conferred is subject to the affirmative procedure, like the powers of the Lord Chancellor. The amendments address the concerns of the Delegated Powers and Regulatory Reform Committee.

Although I note that the amendments have been designated as engaging financial privilege, we do not expect any significant Government expenditure to arise from the use of the regulation-making powers. I therefore hope that hon. Members will support the amendments, which were accepted on all sides of the House of Lords without Division. I commend them to the House.

Photo of Toby Perkins Toby Perkins Shadow Minister (Defence)

I thank the Minister for updating the House on the impressive medal haul for our Invictus games team: long may their successes continue.

Like the Minister, I do not intend to detain the House unduly, as there is considerable consensus in this area, but I want briefly to record our support for the Lords amendments to the Armed Forces Bill. It is always pleasing and reassuring when we reach consensus not only on both sides of this House, but with the other place, particularly when dealing with such important matters as the welfare of our armed forces personnel. The safety and security of our nation rely on the commitment, courage and patriotism of our armed forces personnel. We owe them a considerable debt of gratitude. It is only right that we continue to update the law to ensure that we protect their safety, security and well-being, as we look to them to protect our own.

We are therefore pleased to support Lords amendments 1 and 2. The amendments are technical in nature and will limit the regulation-making powers in new sections 304D and 304E of the 2006 Act in respect of the recognition of assistance by court martials in sentencing, which the Minister went into in a little more detail.

We welcome the commitments that the Government made on Report to publish data relating to sexual assault in the armed forces in a clear format; conduct an independent review into the implications of, and potential benefits of, the removal of commanding officer discretion to investigate sexual assault; and review the compensation levels paid to injured service personnel, particularly the most seriously injured and those who suffer mental ill health. Although the Opposition originally called for those measures to be included in the Bill, we are very pleased that the Government are prepared to make the concessions outside the statutory framework. I commend my colleagues in the other place, particularly the noble Lords Touhig and Tunnicliffe, for continuing to push for those concessions.

We are therefore pleased to support the Lords amendments.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Health), Shadow DUP Spokesperson (Transport), Shadow DUP Spokesperson (Equality)

I thank the Minister for her speech today on the conclusion of our consideration of the Bill. I thank her for the leadership she has provided and thank all those who have supported the Bill. We very much appreciate the House’s commitment and dedication to our soldiers, sailors and airmen.

I will make one quick point and do not intend to delay the House. It is gratifying to see that the centrality of the role of the commanding officer is still recognised in the Bill. That they are being offered assistance and legal clarification through the Lords amendments should be welcomed by everyone in this House. However, we must never lose sight of the fact the relationship between soldiers, sailors and airmen and their commanding officers must remain sacrosanct and must not be eroded by litigious shifts towards independent judicial oversight. I appreciate that the Minister has included that in her amendments.

We must continue to trust the men and women who are in command of their units in peacetime and on operations. That lies at the heart of the bond between them and the service personnel under their command, whether aboard their ships, in their regiments or on their air stations. We tinker with that at our peril. I thank the Minister for her commitment.

Photo of Kirsten Oswald Kirsten Oswald Shadow SNP Spokesperson (Armed Forces and Veterans)

I join the Minister in congratulating those who are participating in the Invictus games.

The SNP has a strong focus on supporting the work of the service personnel who make up our armed forces. We have made constructive and positive progress in Committee and in the Chamber. It is important that we use every available opportunity to examine and assess both the structures and the outcomes for members of our armed services.

We were pleased about the Government’s concession in the other place last month, when they agreed to a review to consider removing the discretion of the commanding officer to investigate allegations of sexual assault. The accuser and the accused would both benefit from any added transparency in such challenging situations.

The SNP supports Lords amendment 1. There was significant discussion in Committee about the most appropriate way to modernise the mechanics that lie behind the matters that are dealt with in clause 10, namely the review of a sentence following an offer of assistance. A person who has been sentenced by court martial may have their sentence reviewed to take account of assistance they have given or offered. The reviewing court may reduce the sentence in return for the offer of assistance. Additionally, subsection (8) allows a person whose sentence is reviewed to appeal against a court martial decision. The director of service prosecutions may also appeal against the decision. It is appropriate that fairness, transparency and good practice are central to service discipline proposals. Clause 10 appears to be a positive move in that regard.

In addition, we support Lords amendment 2, which relates to the provision that allows a sentence to be reviewed to take account of the failure by a person who has been sentenced to give the assistance that they had offered to an investigator or prosecutor in return for a discounted sentence. Again, clause 11 reflects the importance of additional transparency and clarity for service personnel, which we welcome.

We have a duty of care to our service personnel under the armed forces covenant, so it is vital that all measures relating to service justice are dealt with in terms of continual improvement, fairness and transparency. In relation to transparency and positive progress, it is worth noting that the SNP support the Government’s promise that statistics on sexual assault and rape will be published before the summer recess. That is a topic to which I have returned several times in Committee and in the Chamber. It is vital that the statistics are published regularly in a consistent format and that the reporting includes all appropriate metrics, so that there is an opportunity to scrutinise the information properly and assess progress. If we do not have the regular opportunity to examine these statistics fully and consistently, many of the fine words spoken in this place are in the end simply words. I am encouraged that the publication of these statistics suggests that we appear to be making a positive step in the right direction towards greater transparency in service justice.

Lords amendment 1 agreed to, with Commons financial privileges waived.

Lords amendment 2 agreed to, with Commons financial privileges waived.