Ministerial Brief: Defence Amendment Act 2015

The Defence Amendment Act 2015 was discussed in the House of Assembly on Friday [Dec 11], with Premier and Minister of National Security Michael Dunkley beginning the discussion with a Ministerial Brief, with the debate seeing multiple Opposition MPs speak against the Bill.

The Premier said, “Perhaps the most topical issue addressed by this Bill is conscription. I think it is correct to say that Honourable Members opposite support the elimination of conscription  and that the criticism of the Honourable Member who speaks for national security on that side has been on the timing we have proposed and perhaps the time it has taken to bring this Bill to the House.

“The Bill before this Honourable House does not end conscription immediately. It does not do so because that is not what we promised.

“We undertook to work with the Regiment to ensure it remained at a strength required to do its job in this society with the clear understanding that this Government supported the extensive efforts to secure an all-volunteer force.

“I am pleased to confirm to this Honourable House that those efforts have been successful and as indicated in the recent announcement by the Regiment, this January’s Recruit Camp will be the first all-volunteer Camp in the Regiment’s history.

“The significant change set out in this Bill is to make conscription the choice of last resort to continue the mandate for an all-volunteer Regiment. Honourable Members will note that it is only after consulting with the Defence Board and the Minister responsible for the Regiment that the Governor can turn to the process of compulsory enlistment and only then to make up the shortfall in any given year.”

The legislation drew strong criticism from the Opposition in the House on Friday, and has already been criticized by Larry Marshall of Bermudians Against the Draft who called it “deliberately misleading legislation” and said “to basically re-word the relevant section 4 of the Defence Act 1965 in a way which continues to allow conscription under the exact same circumstances is indeed disingenuous.”

The Premier’s full statement follows below:

Mr. Speaker, the Bill before this Honourable House is the Defence Amendment Act 2015. The Bill is the first of two which relate to the Regiment on the Order Paper, the other being the Royal Bermuda Regiment [Junior Leaders] Act 2015.

Mr. Speaker, perhaps the most topical issue addressed by this Bill is conscription. I think it is correct to say that Honourable Members opposite support the elimination of conscription  and that the criticism of the Honourable Member who speaks for national security on that side has been on the timing we have proposed and perhaps the time it has taken to bring this Bill to the House.

Mr. Speaker, this Government has promised the elimination of conscription and I have consistently said that this promise will be delivered upon but not at the expense of the proper functioning of the Regiment. As I indicated in 2013, Mr. Speaker:

“Can conscription be eliminated with a simple legislative amendment? Of course it can. Is that responsible? Of course not. No-one can question my commitment and that of the Government to the elimination of conscription. However, the timeline to do so will not be dictated by personal frustrations or single issue campaigns. There is a responsibility that comes with governing which is harmed by over-simplifying issues or allowing oneself to be caught in a wave of political expediency.

Conscription will be eliminated and the Regiment preserved.”

Mr. Speaker, the Bill before this Honourable House does not end conscription immediately. It does not do so because that is not what we promised. We undertook to work with the Regiment to ensure it remained at a strength required to do its job in this society with the clear understanding that this Government supported the extensive efforts to secure an all-volunteer force. I am pleased to confirm to this Honourable House that those efforts have been successful and as indicated in the recent announcement by the Regiment, this January’s Recruit Camp will be the first all-volunteer Camp in the Regiment’s history.

In Committee we will, no doubt, deal with the specific provision that is clause 4 of the Bill. However, Mr. Speaker, the significant change set out in this Bill is to make conscription the choice of last resort to continue the mandate for an all-volunteer Regiment. Honourable Members will note that it is only after consulting with the Defence Board and the Minister responsible for the Regiment that the Governor can turn to the process of compulsory enlistment and only then to make up the shortfall in any given year.

The key element in this section is a practical application of the intended amendment. Mr. Speaker, even in the face of our trending low birth rates in Bermuda we will continue the effort to find the required number of volunteers. Additionally, with the sustained length of stay beyond the time of compulsory service, the numbers of volunteers required is not expected to be an unduly large number.

Mr. Speaker, the Regiment has been working hard to achieve a transition to an all-volunteer force and with some success.  Recruiting has been a high priority.

Honourable Members should be aware that from 2013 to 2016, The Regiment has gone from 10 volunteers in Recruit Camp 2013,  42 in 2014, 61 in 2015 and Recruit Camp 2016 will be all volunteer [for the first time ever] with 50 – 60 volunteers.  This upcoming Recruit Camp being all-volunteer is in the context of higher retention, which means we can reduce the size of the Camp from the more usual 115-130 recruits by half.

Mr. Speaker, the Regiment has employed a number of means to actively attract volunteers.  These include:

• Word-of-mouth recruiting, by carefully programmed, rewarding and fun training.
• Incentivising recruiters by a ‘committal card system’ and $50 per volunteer payments to the recruiter.
• Introduction of volunteer bonus [payable at the end of Camp] in Jun 13 of $300 [this was $500 in 2014 but reduced due to funding constraints].
• Increasing retention, to reduce demand, this is closely linked to the rewarding experience that is service in the Regiment;
• Recruiting Roadshows since 2013 in public spaces and at schools.
• Greater profile of the Regiment through active engagement of media, including during BR50 anniversary year with Tattoo, Royal Visit and commemorative stamp issue etc.
• Annual Open House event at Warwick Camp in September for potential recruits.
• Recruit Camp Video Blog to help demystify Camp [Link].
• Advertisements on buses, radio talk shows, electronic media and distribution of leaflets [including through the postal system].
• A more welcoming enlistment process.
• Improving the transition rate from the Junior Leaders to adult service.
• Enhancing the benefits of service through expansion of Regimental discounts, but more importantly service as means to advance civilian prospects.
• The establishment of links to employers who recognise the value of soldiers’ transferable skills and qualities of discipline, teamwork, reliability and service ethos.  The Bermuda Fire & Rescue Service will now actively seek soldiers coming to the end of their service.  Additionally, Mr. Speaker, the Regiment is establishing a public web based database of ‘soldier friendly employers’ and have introduced testimonials and reports for soldiers to feedback their performance and allow them to be used to show employers.
• These initiatives have a number of benefits, but include: morale through public support and recognition, welfare through practical support and recruiting by making service more attractive.

Of course, Mr. Speaker, much of this is tied to roles and responsibilities. Where we see the Regiment going is dependent on how those responsibilities are defined. The restrictions on the public purse do not yet allow us to fully develop the desired plan to have the Regiment assume inshore maritime patrolling responsibilities, but this remains the aim of the Government.

Mr. Speaker, the Bill before the House today prescribes a sensible, orderly and structured elimination of conscription. This is legislation crafted with an eye on reality and a practical application “on the ground”.

Mr. Speaker, part of this legislation commenced under the previous Government and Honourable Members may well recall that a version of this Bill was among the last tabled before the House rose prior to 2012’s General Election.

Mr. Speaker, there is some consensus surrounding the need to equip the Regiment with a framework more suited to its 21^st Century role and providing a platform to support any future mission in Bermudian society. At the heart of this Bill is the evolution of a system of discipline that is fairer and is largely compliant with UK and EU best practice.

In 2010, Lt. Col. M. Cole of British Army Legal Services conducted an orientation and advisory visit to Bermuda. This was done at the request of the Regiment and with support from the UK Embassy, Washington. Colonel Cole produced a report and recommendations for internal changes to the Standing Orders of the Regiment as well as legislative changes to the Defence Act.

Mr. Speaker, much of the Bill deals with administrative matters related to military discipline. Honourable Members will be aware that the European Convention on Human Rights extends to Bermuda and as such, one of the key recommendations of Colonel Cole’s report was to ensure that the Regiment’s disciplinary procedures were made compliant with that Convention. This Bill achieves that.

Before I invite Honourable Members to participate in the general debate on the Bill, it is no coincidence that this significant legislation comes in the Regiment’s 50^th anniversary year. An organization that has served this country well must be valued and preserved. That preservation cannot be achieved without necessary change. I believe that this is recognized by all ranks of the Regiment and in this Golden Jubilee year, the now Royal Bermuda Regiment has demonstrated that it is an integral part of this community.

Mr. Speaker, I commend this Bill to the House and for the consideration of Honourable Members.

Clause By Clause Analysis Of The Bill 

Clause 1 is self-explanatory.

Clause 2 amends definitions in section 1 of the principal Act, including by updating references to the UK Armed Forces Act 2006 [as the Army Act 1955 has been repealed in the UK].

Clause 3 amends section 3 of the principal Act. Paragraph [a] amends the reference to the title of the regiment which, from 1 September 2015, has been honoured with the title

of the Royal Bermuda Regiment by Her Majesty the Queen in recognition of 50 years of service. Paragraph [b] provides that the Governor will consult the Minister responsible for

defence [not the Minister of Finance] in determining the number of members of the regiment.

Clause 4 replaces section 4 of the principal Act. Where voluntary enlistment leaves a shortfall in the required number of members of the regiment, the Governor after consulting the Minister and the Defence Board may revise the role and responsibilities of the regiment to take account of the shortfall in numbers or provide for conscription of the required number of members in accordance with the principal Act.

Clause 5 inserts new section 5A which allows the Governor to delegate functions relating to enlistment to the Deputy Governor or the Commanding Officer of the regiment.

Clause 6 paragraph [a] amends section 12 of the principal Act to exempt persons employed by the Bermuda Fire and Rescue Service and the Reserve Police from liability to mandatory military service. Paragraph [b] inserts new subsection [3] which clarifies that all males are eligible for selection if they hold Bermudian status or a permanent resident’s certificate, irrespective of whether they hold dual nationality with a non-Commonwealth state.

Clause 7 inserts new section 12A to provide that, where a person is employed with the regiment and an exempted service [as defined], employment obligations with the exempted service take priority over employment obligations with the regiment.

Clause 8 paragraph [a] amends section 14 of the principal Act to provide that persons of any nationality can volunteer if ordinarily resident in Bermuda. Paragraph [b] corrects a cross-reference. Paragraph [c] clarifies the meaning of “attestation”.

Clause 9 amends section 15[2] to insert paragraphs that were previously in section 12[1]. This means that a person is deferred [not exempt] from military service while an inpatient being treated for a mental disorder, or of unsound mind or in prison.

Clause 10 amends the principal Act by inserting new section 15A, causing the mandatory time period or calculation of time for serving in the regiment to be suspended while a person is in the holding company, and by defining “holding company”.

Clause 11 amends section 19 of the principal Act, to clarify that a person becomes a member of the regiment, and subject to mandatory military service, when he is compulsorily enlisted in person or in absentia.

Clause 12 amends section 23 of the principal Act. New subsection [3] makes provision for the Tribunal to require a person excused from military training to perform approved alternative community service on a regular basis for a minimum period of time matching the statutory period of enlistment. “Approved alternative community service” is defined in new subsection [4].

Clause 13 substitutes section 27[4][b] of the principal Act to make similar provision regarding approved alternative community service in relation to conscientious objectors.

Clause 14 inserts new section 31A into the principal Act to allow an officer of the substantive rank of major or above to retain his rank title after his commission has been relinquished, provided the officer has not been dishonourably discharged.

Clause 15 repeals and replaces sections 33 and 34 of the principal Act to ensure that the provisions are streamlined with corresponding provisions of the Armed Forces Act 2006 [UK]. What was section 34[2] is replaced by a provision clarifying that it shall be at the Governor’s discretion to determine the extent to which command is exercised over a member of the regiment, while the member is operating with UK regular or reserve forces.

Clause 16 repeals section 36 of the principal Act and replaces it with new sections 36 to 36E regarding mode of trial for military offences:

New section 36 deals with arrest for military offences and contains provisions which were previously in section 36[3] to [6] of the principal Act.

Section 36A gives a member of the regiment the right to elect hearing by a magistrates’ court or by the Commanding Officer or company commander [for lower ranks] for all but “minor offences” as defined in section 36A[2], which can be dealt with under section 37[1] or [2]. Subsection [4] provides that the section does not preclude the Commanding Officer from remanding a member of the regiment into military custody, pending final determination of the military offence.

Section 36B sets out the penalties on summary conviction: a fine of 28 days’ pay and/or imprisonment for three months. A dishonourable discharge may also follow conviction.

Section 36C provides for a hearing by the Commanding Officer or company commander. Subsection [4] was previously section 37[7] of the principal Act.

Section 36D sets out penalties where the matter is determined by the Commanding Officer or the company commander, which includes the possibility of a recommendation to the Governor that a member be dishonourably discharged. Subsections [2] to [6] were previously section 37[4] to [6] and [8] to [9] of the principal Act.

Section 36E provides for restitution where an offence relates to property – this was previously in section 36[2] of the principal Act.

Clause 17 repeals and replaces section 37 of the principal Act in the light of new sections 36 to 36E, and restricts its application to “minor offences” as defined in section 36A[2]. Subsections [1] to [3] of the old section 37 are re-enacted with amendments: in subsection [1] to widen the pool of investigating officers and in subsection [2] to add the punishment of a fine of seven days’ pay. Subsections [4] to [9] of the old section 37 are reenacted in sections 36C and 36D as detailed above.

Clause 18 amends section 37A of the principal Act to provide a right of appeal to the Defence Board where a member of the regiment has received a disciplinary punishment under section 36D, 36E or 37. This does not apply where the punishment was imposed by a court of summary jurisdiction as an appeal would be heard by the Supreme Court.

Clause 19 repeals the proviso to section 40[3] of the principal Act as it is unnecessary [section 288[1] of the Criminal Code Act 1907 mandates a sentence of life imprisonment for murder].

Clause 20 amends section 43 of the principal Act. The amendment to subsection [1] clarifies that this section relates to criminal proceedings only [i.e. not military discipline], and new subsection [3] clarifies the meaning of “officer” in that section.

Clause 21 amends section 44 of the principal Act which currently provides for a pension to be payable to a member of the regiment who is killed or suffers disablement as a result of service in the regiment, and provides that in determining the amount of any pension the Governor is to be guided by the Pensions and Gratuities [War Service] Act 1947 [a pension of $800 per month is prescribed by the Pensions [War Service] Order 2007]. The amendment removes the link with the pension under the 1947 Act so it will be of such amount as the Governor may determine, after consulting the Minister.

Clause 22 amends the Second Schedule to the principal Act to provide that military offences can be committed by all members of the regiment [including officers].

Clause 23 amends a number of provisions of the principal Act to increase maximum fines for military offences. The fines are all to be calculated by reference to the relevant pay scale for the member of the regiment in question. The definition inserted into section 1 of the principal Act by clause 2 provides that “days’ pay” is to be calculated; in relation to a person is not a member of the regiment, by reference to the basic pay scale for a private soldier.

Clauses 24 and 25 make consequential amendments to the principal Act and other enactments.

Clause 26 repeals the Bermuda Volunteer [Reserve Force] Act 1939 which is spent, and makes amendments consequential on the repeal.

Clause 27 provides for commencement and transitional provision.

#BermudaPolitics #DefenceAmendment2015 #MilitaryAndRegiment

Category: All, News, Politics