The Reserve Forces Act 1996 (Consequential Provisions etc.) Regulations 1998

Explanatory Note

(This note is not part of the Regulations)

General

These Regulations deal with several different topics arising in connection with the Reserve Forces Act 1996:

(1) Consequential amendments in connection with Part V of the 1996 Act (which introduced a new category of reservists, special members of reserve forces–otherwise known as “sponsored reservists”).

(2) A consequential amendment in connection with Part XI of the 1996 Act (which is about reserve associations).

(3) A consequential amendment to make provision in relation to members of Queen Alexandra’s Royal Naval Nursing Service (“QARNNS”) corresponding to that made for members of the Royal Navy by Schedule 7 to the 1996 Act (which is about postponement of discharge and transfer to the reserves).

(4) Consequential amendments in connection with provisions in the Army Act 1955 and the Air Force Act 1955 for the construction of references to persons called out on permanent service. These provisions are in terms of the Reserve Forces Act 1980, which has been superseded, except for transitional cases, by the 1996 Act.

(5) The repeal of references to persons being called into actual service.

(6) Transitional provisions relating to postponement of discharge or transfer to the reserve.

(7) A minor correction of the Reserve Forces Act 1980.

In more detail

(1) The need for the various amendments about sponsored reservists arises from the fact that although called out (and therefore subject to service discipline) they may continue to receive pay from a civilian employer. They may not receive any service pay, or if they do it is likely to be at a different rate from an equivalent ordinary member of the reserves.

• The fines that may be imposed for service offences under the Army Act 1955, the Air Force Act 1955 (“the 1955 Acts”) and the Naval Discipline Act 1957 (“the 1957 Act”) are limited to the amount of the offender’s pay for 28 days (or 56 days if the offence is committed on active service and is not dealt with summarily under the 1955 Acts). Regulation 3 amends the provisions dealing with this limit so as to ensure equal treatment of sponsored reservists and ordinary reservists. The same point in substance arises in relation to the fines that can be imposed on the spot by a court-martial for contempt, and it is dealt with in the same way by Regulation 4.

• Financial penalties against offenders who are receiving service pay can be enforced by deductions from their pay. Financial penalty enforcement orders enable financial penalties to be enforced against certain types of person who are not receiving service pay–servicemen who have left the services and civilians. Regulation 5 extends the categories of person against whom financial penalty enforcement orders can be used to include sponsored reservists. It thus provides a means of enforcing financial penalties for offences against service law committed by sponsored reservists who are in service but are not receiving service pay from which payment can be deducted.

• The Attachment of Earnings Act 1971 and the Debtors (Scotland) Act 1987 enable enforcement of sums due (such as maintenance for spouses and dependants) by deduction from pay. Members of the services are exempted from these provisions because such deductions if needed can be made under legislation relating to the services. Regulation 6 ensures that sponsored reservists come within the reach of these Acts.

(2) Regulation 7 substitutes a new definition of “service property” in the interpretation sections of the 1955 Acts which refers to reserve associations under the 1996 Act. The definitions being replaced referred to associations established under an Act of 1953–joint associations, territorial army associations and auxiliary air force associations. The 1953 Act was consolidated in the Reserve Forces Act 1980, which (as mentioned above) was superseded, except for transitional purposes, by the 1996 Act.

(3) Schedule 7 to the 1996 Act amended various enactments dealing with the circumstances in which the discharge or transfer to the reserve of members of the armed forces can be postponed. The amendments provided for this to be possible when a call-out order is in force under section 52, 54 or 56 of the 1996 Act. These amendments do not apply to those who enlisted etc. before the amendments came into force, except in certain limited circumstances (for example that the person concerned agrees to be subject to the new law). The provisions amended by Schedule 7 are section 9 of the 1955 Acts (dealing with the army and air force), Schedule 7 to the Army Act 1955 (dealing with the Royal Marines) and section 4 of the Armed Forces Act 1966 (dealing with the Royal Navy).

• Section 4 of the Armed Forces Act 1966 is applied in relation to QARNNS with modifications by paragraph 12 of Schedule 3 to the Armed Forces Act 1981. The modifications no longer work because of the amendments made to section 4 by Schedule 7 to the 1996 Act.

• Regulation 8 amends Schedule 3 to the 1981 Act so that the effect of Schedule 7 to the 1996 Act is carried through for members of QARNNS. It contains the same sort of protection for transitional cases as is provided by the main provisions in Schedule 7 to the 1996 Act.

(4) Regulation 9 amends various references in the 1955 Acts to persons being “called out on permanent service”.

• These references to persons called out on permanent service have to be read in the light of section 225(2) of the Army Act 1955 and section 223(2) of the Air Force Act 1955. Section 225(2) and section 223(2) refer to provisions of the Reserve Forces Act 1980 which have effect for transitional purposes only.

• Regulation 9 repeals section 225(2) and section 223(2) and amends the remaining provisions in which references to persons being called out on permanent service occur so that they refer to a call-out order under the relevant provision of the 1996 Act (section 52) being in force. The approach of referring to an order being in force, instead of persons being called out, follows that taken in amendments of section 9 of the 1955 Acts made by the 1996 Act: section 9 after its amendment by the 1996 Act refers to a call-out order under section 52, 54 or 56 of the 1996 Act being in force.

(5) Regulation 10 repeals references in various enactments to persons being called into actual service. The Reserve Forces Act 1996 does not contain any provisions enabling persons to be called into actual service and with the passage of the 1996 Act these references have become obsolete.

(6) Regulation 11 and the Schedule make transitional provision in connection with postponement of discharge or transfer to the reserve.

• The most complicated points dealt with in this Schedule concern section 9 of the 1955 Acts.

• The 1996 Act amended section 9 of the 1955 Acts, but also provided that section 9 was to continue to have effect without the amendments in certain transitional cases. Sections 225(2) and 223(2) of the 1955 Acts are not needed for the amended version of section 9 and are therefore repealed by regulation 9 (see above). But section 9 has effect without the amendments made by the 1996 Act for transitional cases. Sections 225(2) and 223(2) are therefore at present capable of having some effect in relation to this old version of section 9.

• Clearly, the effect of sections 225(2) and 223(2) ought to be expressly preserved, despite their repeal by regulation 9, in relation to those to whom the old version of section 9 applies. But this is more complicated than it looks, for three main reasons.

• First, sections 225(2) and 223(2) are subject to section 83 of the 1980 Act. One aspect of section 83 of the 1980 Act is that it changes the effect of sections 225(2) and 223(2) on section 9 of the 1955 Acts, for soldiers and airmen who enlisted on or after 1st April 1967. Before the passage of the 1996 Act it might have been easier to understand the rules about postponement of discharge or transfer to the reserve if section 9 had incorporated the combined effect of section 225(2) (or, as the case may be, section 223(2)) and section 83 of the 1980 Act. But once sections 225(2) and 223(2) are repealed, the need to incorporate the effect of those sections, read with section 83, becomes compelling.

• Secondly, although sections 225(2) and 223(2) refer to call out under the 1980 Act, the provisions about call out in the 1980 Act have been amended by the Reserve Forces Act 1996 (Transitional, Consequential and Saving Provisions) Regulations 1997 (S.I. 1997/306) so as to enable the transitional class to be called out in circumstances where a specified type of call-out order is in force under the 1996 Act. This approach needs to be followed through into section 9 as it applies in transitional cases.

• Thirdly, section 9 of the 1955 Acts, in so far as it relates to discharge, is applied in relation to members of the Army Reserve and the Air Force Reserve by sections 19(3) and 21(3) of the 1980 Act. Section 9 (as so applied) at present needs to be read with section 225(2) (or, as the case may be, section 223(2)) and with section 83 of the 1980 Act. Once sections 225(2) and 223(2) are repealed for future cases (as they need to be, as a result of the amendments made by the 1996 Act) it will be clearer if the old version of section 9 (as modified for members of the Army Reserve and the Air Force Reserve) is spelt out in the 1980 Act itself.

• Paragraphs 1, 2, 6 and 7 of the Schedule are designed to deal with the very complicated points just mentioned in as simple a way as possible.

• Paragraphs 1 and 2 incorporate into section 9 of the 1955 Acts (as it has effect for transitional purposes) the effect not only of section 225(2) of the Army Act 1955 or, as the case may be, section 223(2) of the Air Force Act 1955 but also of section 83 of the 1980 Act. Also, instead of referring the reader to provisions of the 1980 Act which would only take him indirectly to powers to order a call out under the 1996 Act, the amendments refer him directly to provisions of the 1996 Act.

• Paragraphs 6 and 7 deal with section 9 as applied in relation to reservists. The amendments change the approach taken by the 1980 Act so that, instead of applying section 9 with modifications for members of the Army Reserve and the Air Force Reserve, the Act will now re-state section 9 in its modified form. In particular, the re-stated version of section 9 incorporates the effect of section 225(2) (or, as the case may be, section 223(2)) read with section 83 of the 1980 Act.

• The transitional provisions in connection with the Royal Navy, the Royal Marines and QARNNS deal with somewhat simpler points, because they are not subject to anything corresponding to sections 225(2) and 223(2) of the 1955 Acts and sections 19(3), 21(3) and 83 of the 1980 Act.

• Paragraph 3 of the Schedule amends section 4 of the Armed Forces Act 1966, in so far as it has effect for transitional purposes. The amendments translate the references to types of call out into references to call out under an order made under the 1996 Act, and also remove an unnecessary reference to persons called into actual service (a phrase which, as explained in connection with Regulation 10, has become obsolete).

• Paragraphs 4 and 5 of the Schedule make amendments for the Royal Marines and for QARNNS which are essentially the same as the amendments made by paragraph 3 of the Schedule for the Royal Navy.

• Paragraph 8 of the Schedule repeals and revokes the provisions which are made unnecessary by the preceding paragraphs of the Schedule.

(7) The amendment of section 36 of the 1980 Act by Regulation 12 deletes a surplus reference to the 1996 Act in a provision which section 36 requires to be read as if contained in the 1996 Act.