All 13 contributions to the Armed Forces Act 2021 (Ministerial Extracts Only)

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Mon 8th Feb 2021
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Mon 29th Nov 2021
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Mon 6th Dec 2021
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Wed 8th Dec 2021
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Mon 13th Dec 2021
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Armed Forces Bill

(Limited Text - Ministerial Extracts only)

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2nd reading & 2nd reading: House of Commons
Monday 8th February 2021

(3 years, 2 months ago)

Commons Chamber
Armed Forces Act 2021 Read Hansard Text

This text is a record of ministerial contributions to a debate held as part of the Armed Forces Act 2021 passage through Parliament.

In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.

This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here

This information is provided by Parallel Parliament and does not comprise part of the offical record

Johnny Mercer Portrait The Minister for Defence People and Veterans (Johnny Mercer)
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I beg to move, That the Bill be now read a Second time.

It is a privilege to open this debate today on our Armed Forces Bill, not least because it carries with it such historical significance. Decades after the disaster of the English civil war, the Bill of Rights of 1688 required Parliament to pass an Act every five years to maintain a standing army. That landmark document states that

“the raising or keeping a standing army within the United Kingdom…in time of peace, unless it be with the consent of Parliament, is against the law”.

Centuries on, that pivotal constitutional function still stands, and by reviewing what has evolved into the Armed Forces Act 2006 every five years, this Bill is the mechanism for ensuring that members of our armed forces obey lawful orders. It underpins military command, discipline and justice. Without it, our military would be unable to operate as a professional body beyond the end of 2021. In other words, this legislation is essential for our forces to act effectively, and a vital bulwark of our democracy.

The legislation we are discussing today is as much about our future as about our present and our past. This is a moment of renewal, as will become clear when I move on to discuss some of the Bill’s key measures. It will have far-reaching benefits for defence and for our broader service community, and it is fitting that we are reviving our pledge to our people at this time. Over the past 12 months they have been shoulder to shoulder in the thick of the struggle against covid, performing Herculean tasks in support of our excellent NHS doctors and nurses.

Perhaps no one sums up the enduring spirit of our armed forces through the ages better than the late great Captain Sir Tom Moore. Always humble, never entitled, ever using his unique experiences to help others, he was a special man, a true patriot and the perfect veteran. When I spoke to Captain Tom, I always thanked him not only for his generation’s service, which was the perfect example for mine to follow, but for the example he gave to us all, young and old, during this pandemic. Captain Tom was one of a disproportionate number of veterans who have stood up and served again during this time, and as the UK Government’s Veterans Minister, I pay tribute to them today. This Bill is designed to deliver for them.

The Bill has three main elements, and I will deal with each in turn. First, renewal. I start with clause 1. As previously mentioned, this legislation renews the Armed Forces Act 2006. The 2006 Act covers matters such as: the powers of commanding officers to punish disciplinary or low-level criminal misconduct; the powers of the court martial system; and the powers of the service police. This Bill provides for continuation of the 2006 Act for a year from the date on which it receives Royal Assent. It provides for its further renewal for up to a year at a time until the end of 2026, ensuring that Parliament has a regular opportunity to debate our nation’s armed forces.

Secondly, the Bill makes important changes to the service justice system. This Government are committed to achieving justice in all allegations of criminal offending by or against service personnel anywhere in the world, just as we are equally committed to supporting the victims and witnesses of the most serious crimes.

Iain Duncan Smith Portrait Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)
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I apologise for intervening so early, but I wanted to do so while the Minister was mentioning justice. In this Bill, he deals with justice to our armed services and forces, but we are still waiting for protection against vexatious allegations in cases from Northern Ireland where people have already been tried and found innocent. I served there back at that same time, and many people I know live in fear that they are going to be called for something that they thought was over, done and gone. When is that legislation going to come in front of the House?

Johnny Mercer Portrait Johnny Mercer
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I thank my right hon. Friend for his question. I think it is appropriate that I deal with this matter now, although it may come up a number of times during the debate. Let me be absolutely clear: this Prime Minister, for the first time in this country’s history, has committed to ending the vexatious nature of repeat investigations of our veterans who served in Northern Ireland; this Northern Ireland Secretary has given the same commitments; and we are closer now than we have ever been to delivering on that promise. Those veterans are not left behind. I pay tribute to them for their service. Legislation will be coming in due course from the Northern Ireland Office. The Government are working and are committed to this issue like never before. I just urge a little more patience. Colleagues will know my commitment to the issue, and I am determined to see it through.

Julian Lewis Portrait Dr Julian Lewis (New Forest East) (Con)
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I certainly endorse everything that the Minister has said about his own commitment and the commitment of the Government to this issue. May I just make an appeal that, when he does bring forward the legislation for Northern Ireland veterans, it focuses not only on the question of prosecutions, but on the question of investigations, the vast majority of which never lead to prosecutions but are still terribly oppressive? That is what is missing from the Overseas Operations (Service Personnel and Veterans) Bill; it is good on prosecutions, but has not yet done enough about repeated reinvestigation.

Johnny Mercer Portrait Johnny Mercer
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My right hon. Friend is very knowledgeable and learned in this space. The issue is a lot more complicated than it is made out to be by a lot of people who contribute to this debate. There is no evidence, essentially, of vexatious prosecutions per se. It is the investigations that are the trouble. There are elements of this Bill that address how we investigate. There are elements not in this Bill that are being brought into the Department, such as a serious crime unit, to ensure that these things can never happen again.

Let me be clear that if we were to invent a system that essentially said, “We will not investigate”, that would be the equivalent of an amnesty, and this Government are not committed to going down that route either. This is a difficult area and it is a delicate balance, but the strategic objective has been set by the Prime Minister; it is one that I and many Members in the House have campaigned on for years, and we will deliver on it. It is a tough ask and a tough battle, but we will win it. I urge patience while we get to the end of this battle.

Mark Francois Portrait Mr Mark Francois (Rayleigh and Wickford) (Con)
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The Minister is not the problem; the problem is the Northern Ireland Office, as everyone knows. My right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith) chairs the veterans support group in this place; he has been followed by my right hon. Friend the Member for New Forest East (Dr Lewis), a previous Chairman of the Defence Committee and now Chairman of the Intelligence and Security Committee; and I am a member of the veterans support group. The Prime Minister promised 18 months ago that we would have this legislation before the next general election. Well, we have had the general election and we have had a year, so with the greatest of respect, will the Minister take back to the Northern Ireland Office the fact that our patience is now exhausted? We do not want words and we do not want to be patronised; we want a Bill. Where is it?

Johnny Mercer Portrait Johnny Mercer
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I thank my right hon. Friend for his question, and it is a fair point. However, I would just say that we have had 18 months since that election, but this challenge has existed for 40 years—for 40 years—and our predecessors have not dealt with it. It is unrealistic to expect the Northern Ireland Office and the Prime Minister to have delivered on this by now, but they have made that commitment. I would slightly push back on this idea that the Northern Ireland Secretary is the roadblock, as my right hon. Friend has put to me before. That is not my experience, and I am engaged in this every day and I think on this matter every day. That is not fact; what is fact is that this is extremely difficult, but this Government will get it over the line. I am going to make progress now.

Kevan Jones Portrait Mr Kevan Jones (North Durham) (Lab)
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Will the Minister give way?

Johnny Mercer Portrait Johnny Mercer
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No, I will not give way. I will make progress now.

The service justice system remains a fair and effective system, but no system, as we know, should remain static. The service justice system review underlined that we must do more to strengthen it so that our people and their families have confidence that they will receive fair treatment. That is why clauses 2 to 7, along with clause 11, implement important recommendations of the service justice system review. In the interests of time, I will focus today on only the most salient measures.

Clause 7 deals with the notion of concurrent jurisdiction. For offences committed by service personnel in the UK, justice can be delivered through the civilian criminal justice system or the service justice system. The service justice system review of 2020 found the system to be fair, robust and ECHR-compliant, but it also proposed that some of the most serious offences should not be prosecuted at court martial when they are committed by service personnel in the UK, except where the consent of the Attorney General is given. To be clear, the review was not saying that the service justice system should stop dealing with certain categories of cases that occur in the United Kingdom; it was saying that, when such cases come up, controls should be introduced if they are to be tried in the service justice system. Meanwhile, jurisdiction would remain to deal with such cases overseas.

The Government have considered this recommendation fully and carefully, but we have concluded that the concurrency of jurisdictions must remain. We are confident that the service justice system is capable of dealing with all offences, whatever their seriousness and wherever they occur, though there are important improvements that can and should be made to ensure the system is as resilient, robust and transparent as it possibly can be. However, we do agree that the current non-statutory protocols and guidance about jurisdiction must be clearer, so clause 7 of the Bill places a duty on the heads of the service and civilian prosecutors in England and Wales, Scotland and Northern Ireland to agree protocols regarding the exercise of concurrent jurisdiction. We believe that such decisions on jurisdiction are best left to the independent service justice and UK civilian prosecutors, using guidance agreed between them. The Bill ensures that civilian prosecutors will have the final say should a disagreement on jurisdiction between the prosecutors remain unresolved. I want to be clear: this is not about seeking to direct more cases into the service justice system and away from the civilian criminal justice system, or vice versa; it is about guaranteeing that both systems can handle all offending and are equally equipped to deliver justice for victims.

Moving on from clause 7, clause 11 is the first step in creating an independent body to oversee complaints against the service police. To support our world-class armed forces, we need a highly skilled and capable service police, and we are always looking for improvements. Once again, the service justice system review has provided several important recommendations. These include the creation of a defence serious crime capability, something we are pursuing separately since it does not require legislation, but it is the report’s proposal for an independent service police complaints system, modelled on the system in place for civilian police in England and Wales, that we will take further today.

The rules governing oversight of the civilian constabulary are set out in part 2 of the Police Reform Act 2002, which is overseen by the director general of the Independent Office for Police Conduct. We are, in essence, replicating that system, by establishing an independent service police complaints commissioner. They will have the power to investigate serious and sensitive matters involving the service police, including those relating to conduct, serious injury and death. They will also set the standards by which the service police should handle complaints. As in the case of civilian police, provision will be made to handle both whistleblowing and super-complaints—those issues raised by designated organisations on behalf of the public about harmful patterns or trends in policing.

Tobias Ellwood Portrait Mr Tobias Ellwood (Bournemouth East) (Con)
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I am grateful to the Minister for giving way. May I thank Justice Lyons for his contribution in putting together the service justice review, which happened on my watch, as my hon. Friend’s predecessor? I see that the Defence Secretary is in his place. Will he use the opportunity to clarify why certain types of offences—the most serious offences—could not, as per the recommendation, be moved across to the civilian courts which, it was argued, had better experience to deal with these matters?

Johnny Mercer Portrait Johnny Mercer
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As I have said, the review was not saying that the service justice system should stop dealing with certain categories of cases. All it was saying was that, when cases came up, controls should be introduced if they are tried in the service justice system. The control that was recommended by the review was the Attorney General’s consent. Instead, we want something that is more transparent for both victims and those accused, that is more resilient and more robust, and that is the protocol that is agreed between civilian prosecutors and service prosecutors, which we think will lead to better outcomes for all users of the service justice system.

Clause 8 goes to the heart of the Bill. As the House is aware, the armed forces covenant was introduced a decade ago. During that time, we have seen an irreversible, strategic shift towards looking after our people. Veterans have found work, reservists have got the time off needed to deploy, and military spouses have received further help in their careers. If we analyse last year’s annual report, we will see how the scope and effectiveness of the armed forces covenant has continued to advance: 79,000 service children in the United Kingdom now benefit from £24.5 million of additional pupil funding; 22,200 service personnel have been helped on to the housing ladder by the Forces Help to Buy scheme; and 800 GP practices in England are now accredited as veteran-friendly with more joining their ranks every day.

Despite the pandemic, we have provided cash boosts for family accommodation, introduced free breakfast and after-school clubs for military children, brought in the veterans railcard and given millions to service charities. We have come far in recent times. As someone who beat a path to the door of this Parliament to force this place to honour the nation’s responsibilities to veterans, I can genuinely say that I can feel the sands shifting under my feet, but we have further to go. Today is an historic day, as we legislate to put the armed forces covenant—that promise between the nation and those who serve—into law. What is still evident is that some members of our armed forces community are still suffering disadvantage in accessing public services. Often the provision that they get is something of a postcode lottery. When disadvantage occurs, it is often because there is little understanding of the unique nature of service in the armed forces.

Stephanie Peacock Portrait Stephanie Peacock (Barnsley East) (Lab)
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I am incredibly grateful to the Minister for giving way. I welcome what he says, and we on the Labour Benches indeed support the covenant. On the issue of the postcode lottery, which is really important for my constituents in Barnsley, may I push him further and ask whether he will be introducing measurable national standards in the covenant so that there is not that postcode lottery?

Johnny Mercer Portrait Johnny Mercer
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We bring out a report every year that attempts to pull together everybody’s different experiences of the covenant. We are clear that we will not prescribe specific outcomes. We want local authorities to adhere to the principles of the armed forces covenant and, because of the way that local authorities deliver their services, to have a due regard in law to consider the covenant but not to prescribe outcomes. That is reflected in the covenant report, which gives us a good firm idea of how the covenant is going down in communities such as Barnsley.

In this clause, we tackle those problems head-on. We are placing a duty to have due regard to the covenant principles on public bodies responsible for the delivery of key functions in housing, education and healthcare. We have chosen those three areas because they are the bedrock of a stable and secure life. Unsurprisingly, they are also raised by members of the armed forces community as areas of greatest concern.

Kevan Jones Portrait Mr Kevan Jones
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Will the Minister give way?

Johnny Mercer Portrait Johnny Mercer
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Not at this time.

The legislation does not mandate specific delivery outcomes or advantageous treatment of the armed forces community, not least because it is important that relevant public bodies retain the flexibility required to tailor decisions on service delivery to local circumstances. But the Bill will legally oblige relevant public bodies to consider the principles of the covenant when carrying out specified functions in these three areas. To support its delivery, we are also making sure that public bodies are supported by statutory guidance explaining the principles of the covenant as well as, for example, how and why members of the armed forces may experience disadvantage as a result of their service. Some will say that we are going too far, others that we have not gone far enough, but my colleagues and I carefully weighed up a number of options before devising this response.

Critically, this is just the first step. This legislation will provide the Government with the power to widen the scope of the duty to apply to additional public bodies and include other functions should it be felt beneficial in future; in other words, we are turning the covenant into a minimum requirement—a tangible tool that our service personnel and veterans can use to hold their service providers to account, a tool that has the capacity to deliver today as well as evolve and adapt as society changes.

Tobias Ellwood Portrait Mr Ellwood
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I am grateful to the Minister for giving way a second time, and I think the whole House agrees with him on the need to enforce the armed forces covenant. Critical in any environment, whether the private sector or local authorities, is the role of the armed forces champion, a single person that anybody can go to, and it must be clear who they are. Will the Minister consider putting into the legislation that every local authority must have a designated armed forces champion?

Johnny Mercer Portrait Johnny Mercer
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I thank my right hon. Friend for his intervention. We carefully considered including such a measure, but local authorities were not supportive because they deliver the principles of the armed forces covenant through a variety of mechanisms and in different ways. They specifically mentioned to the Department and to me as the Minister that they did not want us to specify that sort of outcome, which is why we have put in the “due regard” to pay duty to the principles of the covenant and to bear them in mind when delivering public services. But, as I have said, this is legislation that we will review going forward to ensure that it is working and that it genuinely feels that it works for those who need it.

This reform is also about our broader aspiration.

Kevan Jones Portrait Mr Kevan Jones
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Will the Minister give way?

Johnny Mercer Portrait Johnny Mercer
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Not at this time.

By cementing the covenant in the minds of the public, we are not lowering the ceiling but are raising the floor of our collective expectations. For example, my own constituency of Plymouth, Moor View has undertaken many good initiatives to support the local service community. I want others to view their efforts not as exceptional, but rather as a new normal, just as I want my constituents to see their successes merely as a springboard to better and bigger things.

In conclusion, I began by saying that an Armed Forces Bill is always an historic moment, but, by augmenting service justice, by improving our service police and by finally enshrining the covenant into law a decade on, we are cementing its standing further still. Our armed forces people are our nation’s first and last line of defence. We depend on them, but they also depend on us, and that is why it is incumbent not just on those of us in Government but on everyone in this House to work in partnership with our counterparts in the devolved Administrations to ensure that this nation does right by those who serve, so that decades from now our future personnel will look back on this period and say, “This was the moment”—the moment when our nation finally awoke and delivered on its promise to the incredible men and women who serve our country without question or quibble and defend this proud nation and act on the will of this House; the moment when incremental strategic and irreversible change was delivered in law for our service personnel and veterans and their families. I commend this Bill to the House.

Eleanor Laing Portrait Madam Deputy Speaker (Dame Eleanor Laing)
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Before I call the shadow Secretary of State, it will be obvious to anyone who has examined the call list that a very large number of Members wish to participate this afternoon, so there will be an immediate time limit on Back-Bench speeches of four minutes.

--- Later in debate ---
John Healey Portrait John Healey
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If the Minister wants to do so now, I will happily give way.

Johnny Mercer Portrait Johnny Mercer
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First, we cannot reject a recommendation that did not exist. That was not the recommendation of the Lyons review, as the right hon. Gentleman well knows. Secondly, I have given a justification a number of times: this decision was made because we want to see more integrity and resilience in the system and agree a protocol between prosecuting jurisdictions to ensure that the system works better for everyone. What was advised was Attorney General’s consent. We have gone for better than that, and this will achieve better outcomes for our people.

John Healey Portrait John Healey
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That is not an explanation of why; that is an explanation of what, and the protocol is about the what, not the why. The Government are missing the opportunity to improve the results and the confidence in how these very serious cases are dealt with. If the Minister thinks that this was not a recommendation in the Lyons report, I suggest that he re-reads it.

Secondly, and importantly, the Bill has little to say about fixing the biggest flaw in the service justice system—investigations—and it has nothing to say about investigations of overseas allegations, despite the Minister telling me on Third Reading of the Overseas Operations (Service Personnel and Veterans) Bill in November:

“The right hon. Member for Wentworth and Dearne raises time and again the issue of the investigations, but he knows that they are for the forthcoming armed forces Bill and will be addressed there.”—[Official Report, 3 November 2020; Vol. 683, c. 258.]

They are not. He also knows that 99% of the allegations against British troops from Iraq and Afghanistan did not make it to prosecution and would not have been affected by the Overseas Operations (Service Personnel and Veterans) Bill. The Government have already had three reviews in the past five years and have more than 80 recommendations on investigation, so I urge them to work with us and with a wide range of peers in the Lords on the changes needed to that Bill.

The Minister quite rightly said that this legislation is as much about our future as our past. This is indeed five-year legislation that will take our armed forces beyond the Government’s integrated review, when it is finally published, beyond its four-year funding plan and beyond the next general election. For it to function as the future framework for our armed forces to keep this country secure, the Bill must fix the flaws that have become so clear since the last Act in 2016.

On maintaining the strength of our armed forces, there is serious concern that Britain’s full-time armed forces remain 10,000 below the total strength Ministers said was needed in the 2015 strategic defence review, and an MOD report revealed over the weekend that all but one of 33 infantry battalions are seriously short of battle-ready personnel. The Minister responded on social media to that report, saying that it is not secret but a “routine update”. I want to see Parliament use the Armed Forces Bill to mandate Ministers to report to Parliament each year on the fighting strength of our armed forces.

On maintaining the pay of our armed forces, the decade of decline since 2010 has seen military pay fall behind and with it, by the way, morale and retention. For instance, last year an Army private was getting almost £2,000 a year less than they would have done if the pay had kept pace with inflation. I want to see Parliament use this Armed Forces Bill as the basis for a debate about making the recommendations of the independent Armed Forces Pay Review Body binding on Ministers.

On justice in our armed forces, more than 6,000 personnel serve in Britain’s armed forces from overseas, mainly from the Commonwealth. Their service to our country earns them the right to live in our country, yet the Government charges huge fees to apply for British citizenship, so someone leaving the forces now with a partner and two children has a bill of almost £10,000. It is unjust; it is un-British. I want to see Parliament use the Armed Forces Bill to get Ministers to scrap these unfair fees.

Finally, on the role of reservists in our armed forces, covid has made it clear that our military are essential to our national resilience, not just our national security, and that reservists will contribute more in future to our defence capabilities. While the Government’s moves to make reservist training more flexible are sensible and welcome, I want to see Parliament use the Armed Forces Bill to deal with other problems they face, especially with employers.

In conclusion, the Minister has said to the House that he is open to proposals to improve the Bill. We will take him at his word. We will at times test his word, but we will work with the Minister if he will work with us. We will work cross-party and with a range of interests beyond Parliament to build consensus so that this Bill, when it becomes an Act, really does make the most of this opportunity to strengthen the nation’s commitment to our forces, their families and veterans.

--- Later in debate ---
Ben Wallace Portrait The Secretary of State for Defence (Mr Ben Wallace)
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Let me declare at the outset that I am president of the Scots Guards Association for veterans and have been for nearly 20 years.

I pay tribute to all Members who have spoken in this debate. Looking after our veterans and our armed forces does not belong to any one political party, nor to any one Member of Parliament. Reflecting on the contribution from the hon. Member for Portsmouth South (Stephen Morgan), one would easily be forgiven for thinking that serving personnel’s experience of the armed forces is that they all live in substandard accommodation, have an awful time and want to leave. One would also think that the veterans in this country are not enjoying successful careers, becoming incredibly employable, working hard, contributing to society and using their skills. Up and down this country, tens of thousands—nay, even hundreds of thousands—of people who have enjoyed service to this country, whether short or long, show those skills to all and sundry. They show their loyalty to their country, they show their patriotism, they show their ability to work, and they are incredibly employable.

For many people, the system works and they have a great time in the services. For many people, the best part of their lives—probably the best part of my life—was as a serving soldier in the armed forces. Was it perfect? No. Did I lose 30% of my sight? Yes. Did I find myself rushed to hospital being told that they would not save my sight? Yes. Did I feel slightly abandoned when afterwards, with a one-inch gash in my eyeball, I woke up alone in a hospital in west Belfast, and did not really know how to transition? Yes. But do I regret a minute of my service? No. Do I regret the skills it gave me? No. Do the hundreds of thousands of veterans in this country regret it? No.

It is true, however, that for a proportion of veterans and serving personnel, all is not well, and we all recognise in this House that we could always do more and do better. My hon. Friend the Member for Totnes (Anthony Mangnall) made the very important point that the journey never ends. The reason the journey never ends is that conflict never ends, and the nature of conflict never ends. The distance between society and the people who serve in the armed forces—fewer and fewer people—never ends. The hon. Member for West Dunbartonshire (Martin Docherty-Hughes), who is a very thoughtful Member of this House who seeks the best for the armed forces, and, as a member of the Scottish National party, is always open to listening, understanding and exploring ideas, made the very real point that there are fewer and fewer serving personnel in society and the gap between the understanding of what they do and what others do is growing greater. We must address that.

This Bill is a good step in the right direction. It improves many of the things that in my day were not even really in existence. I served as a member of the armed forces under both a Conservative Government and a Labour Government. If we just consider the treatment for post-traumatic stress disorder—the transition and liaison service, the complex treatment service and the high-intensity service now delivered by the NHS for the mental welfare of our veterans—we can see that all that is much, much better; a step change from what it was.

This Bill takes another step forward—it goes further—because clause 8 puts the armed forces covenant into law. As the right hon. Member for North Durham (Mr Jones) said, this has been a long journey. It started off with a charter, then a Green Paper, then it became a duty to report, and now this is a step forward whereby we will put a duty on a number of services to pay regard to the covenant.

The Bill is also a step forward in improving the assurances around investigations, which many Opposition Members said during the passage of the Overseas Operations (Service Personnel and Veterans) Bill was something that is missing. It is about improving the quality and the independence of those investigations, alongside that of the prosecutions and the judiciary. It is about improving the training so that our soldiers—men and women of our armed forces—are never again in the position they were in in the early years of the Iraq war, where they were accused of war crimes when they thought they were simply doing what they were trained to do. That happened because the training had fallen far behind the development of the law and human rights legislation.

Many Members called for the Bill to go wider and deeper, and I will do my best to respond, given that nearly 60 colleagues spoke during the debate. The hon. Member for Glasgow North West (Carol Monaghan) suggested a £500 thank you payment to our troops in the same way as was provided for NHS workers in Scotland. She also said that we could do more in health and education. The Scottish Parliament has those devolved powers, and there is nothing to stop the Government of Scotland tomorrow morning doing even more on a whole range of issues to support the covenant.

My hon. Friend the Member for Stroud (Siobhan Baillie) pointed out the excellent report produced by my hon. Friend the Member for South West Bedfordshire (Andrew Selous), “Living in our Shoes”—an extremely good piece of work. As Secretary of State for Defence, I have not only listened to and read the reports from my colleagues and from Select Committees on issues such as protecting veterans and legacy, but have made sure that the Department does not put those reports on the shelf and ignore them. I believe that many of our colleagues have some of the best ideas, and throughout the conduct of this Bill, I assure the House that the Government will be open to suggestions about how to improve it. Everyone in the Government will be interested in doing that, because we all have that interest at heart.

My right hon. Friend the Member for Rayleigh and Wickford (Mr Francois) and many others raised the issue of Northern Ireland veterans. I refer him to the written ministerial statement on 18 March by the Secretary of State for Northern Ireland, and add that we are all keen to get the legacy over the line as well. My hon. Friend the Member for Bracknell (James Sunderland) gave us an insight into what it means to be a commanding officer, having to discipline soldiers and balance military discipline with the needs of the unit, sometimes on operations—that experience is unique. My hon. Friend the Member for Aylesbury (Rob Butler) referred to his experiences as a magistrate in the civilian world. I have sat on a court martial in the military world—before the reforms—but the military world and the civil world are different, so that is a unique experience.

The hon. Member for West Dunbartonshire talked about why it is always the military that is called upon to do the resilience. The fundamental reason is how we are trained: it is the pressure, the different discipline and structure, and often the difference between life and death in operations. There is no need to always replicate that across society. It is a unique experience—a unique set of circumstances—because only we in the armed forces are called upon to kill or be killed. It is a unique thing, one that we often take with us for the rest of our lives, and that is why we provide resilience at pace in anything from a pandemic to flooding and snowstorms. That will always continue, because that is the very nature of why our armed forces are special, and we must make sure we protect that special nature. At the same time, we must modernise welfare and aftercare for our troops, but the military is different, and will always be different.

That is why when it comes to co-jurisdiction, there is the obvious difficulty around murder, manslaughter, rape and other offences, but there are many serious offences. There is attempted murder; there is grievous bodily harm; there is armed robbery. Why is it okay for those offences to remain in a service system, but it is recommended that three other offences be potentially removed into a civil system? It is perfectly legitimate to argue against the concept of service justice, although I would disagree, but if we accept that there is such a concept, where we draw the line has to balance the needs of the victim with those of the accused. That is why I think the solution we came up with, which was not the Lyons recommendation of Attorney General consent—which can happen behind closed doors—but consent based on an open and transparent protocol that will be decided between the Crown Prosecution Service and the service justice fraternity, was the right one.

I will just make one other point on this topic, because a number of colleagues make this mistake: the service justice system is independent. I do not appoint the judge advocate; I do not appoint the judges; I do not interfere with the police and the justice system, in the same way that the Home Secretary or the Lord Chancellor do. It is independent. People seem to think that it is all cosy because we are in the armed forces, and that we sit around and choose who to prosecute and who not to prosecute. We do not. Yes, the service justice system and the quality of investigations have been found wanting over many years. That is why we commissioned the Lyons report, and it is why Sir Richard Henriques has been commissioned to increase the assurance, because that is the best way to make sure we do not constantly get taken to court under article 2 of the European Convention on Human Rights, and to ensure that people are not dragged through the courts. We will continue to do that.

The hon. Member for Caithness, Sutherland and Easter Ross (Jamie Stone) talked about the need for the 16-year-olds. In response to his question, I urge him to visit the Army Foundation College in Harrogate—I will happily make that possible.

All I will say in conclusion is that at their heart, our armed forces are about the people. Over the next few months, we will have debates about equipment, integrated reviews, and which service wins over which—which regiments do and do not—but in the end, if we do not invest in our people, we will not have anything for the future of our armed forces.

Question put and agreed to.

Bill accordingly read a Second time.

Armed Forces Bill (Programme)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the following provisions shall apply to the Armed Forces Bill:

Select Committee

(1) The Bill shall be committed to a Select Committee.

(2) The Select Committee shall report the Bill to the House on or before 29 April 2021.

Committee of the whole House, Consideration and Third Reading

(3) On report from the Select Committee, the Bill shall be re-committed to a Committee of the whole House.

(4) Proceedings in Committee of the whole House on recommittal, any proceedings on Consideration and proceedings on Third Reading shall be taken in one day in accordance with the following provisions of this Order.

(5) Proceedings in Committee of the whole House and any proceedings on Consideration shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which proceedings in Committee of the whole House are commenced.

(6) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.

Programming committee

(7) Standing Order No. 83B (Programming committees) shall not apply to proceedings in Committee of the whole House, to any proceedings on Consideration or to proceedings on Third Reading.

Other proceedings

(8) Any other proceedings on the Bill may be programmed.—(Rebecca Harris.)

Question agreed to.

Armed Forces Bill (Money)

Queen’s recommendation signified.

Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),

That, for the purposes of any Act resulting from the Armed Forces Bill, it is expedient to authorise the payment out of money provided by Parliament of any increase attributable to the Act in the sums payable under any other Act out of money so provided.—(Rebecca Harris.)

Question agreed to.

Armed Forces Bill (Carry-Over)

Motion made, and Question put forthwith (Standing Order No. 80A(1)(a)),

That if, at the conclusion of this Session of Parliament, proceedings on the Armed Forces Bill have not been completed, they shall be resumed in the next Session.—(Rebecca Harris.)

Question agreed to.

Select Committee on the Armed Forces Bill

Motion made, and Question put forthwith (Standing Order No. 9(6)),

That the following provisions shall apply to the Select Committee on the Armed Forces Bill:

(1) The Committee shall have 16 members, to be nominated by the Committee of Selection.

(2) The Committee shall have power—

(a) to send for persons, papers and records, to sit notwithstanding any adjournment of the House, to adjourn from place to place and to report from day to day the minutes of evidence taken before it;

(b) to admit the public during the examination of witnesses and during consideration of the Bill (but not otherwise); and

(c) to appoint specialist advisers either to supply information not readily available or to elucidate matters of complexity relating to the provisions of the Bill.

(3) The Order of the House of 24 March 2020 (Select Committees (Participation and Reporting) (Temporary Order)) shall apply to the Committee as if it had the power to report from time to time.—(Rebecca Harris.)

Question agreed to.

Armed Forces Bill

(Limited Text - Ministerial Extracts only)

Read Full debate
Committee stage
Wednesday 23rd June 2021

(2 years, 9 months ago)

Commons Chamber
Armed Forces Act 2021 Read Hansard Text Amendment Paper: Committee of the whole House Amendments as at 23 June 2021 - (23 Jun 2021)

This text is a record of ministerial contributions to a debate held as part of the Armed Forces Act 2021 passage through Parliament.

In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.

This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here

This information is provided by Parallel Parliament and does not comprise part of the offical record

Eleanor Laing Portrait The Chairman
- Hansard - - - Excerpts

With this it will be convenient to discuss the following:

Clauses 2 to 6 stand part.

Amendment 7, in clause 7, page 4, line 27, at end insert—

“(4A) Guidance under subsection (3)(a) must provide for charges of murder, manslaughter, domestic violence, child abuse and rape to be tried only in civilian court when the offences are alleged to have been committed in the United Kingdom.”

This amendment would ensure that the most serious crimes – murder, manslaughter domestic violence, child abuse and rape - are tried in the civilian courts when committed in the UK.

Clause 7 stand part.

Amendment 1, in clause 8, page 9, line 19, at end insert—

“(aa) a relevant government department;”.

This amendment, with amendments 2, 3 and 4, would place the same legal responsibility to have ‘due regard’ to the Armed Forces Covenant on central government and the devolved administrations as the Bill currently requires of local authorities and other public bodies.

Amendment 39, in clause 8, page 10, line 2, at end insert—

“and

(g) in relation to accommodation provided to service people in England, a requirement for that accommodation to meet the Decent Homes Standard.”

The intention of this amendment is to ensure that all service housing is regulated in line with the minimum quality housing standard which pertains to whatever part of the United Kingdom that housing is situated in.

Amendment 2, in clause 8, page 11, line 18, at end insert—

“(aa) a relevant department in the devolved administration in Wales;”.

See explanatory statement for Amendment 1.

Government amendment 8.

Amendment 40, in clause 8, page 11, line 38, at end insert—

“and

(e) in relation to accommodation provided to service people in Wales, a requirement for that accommodation to meet the Welsh Housing Quality Standard.”

See the explanatory statement for Amendment 39.

Government amendment 9.

Amendment 3, in clause 8, page 12, line 32, at end insert—

“(aa) a relevant department in the devolved administration in Scotland;”.

See explanatory statement for Amendment 1.

Amendment 41, in clause 8, page 13, line 9, at end insert—

“and

(e) in relation to accommodation provided to service people in Scotland, a requirement for that accommodation to meet the Scottish Housing Quality Standard.”

See the explanatory statement for Amendment 39.

Government amendment 10.

Amendment 4, in clause 8, page 14, line 4, at end insert—

“(aa) a relevant department in the devolved administration in Northern Ireland;”.

See the explanatory statement for Amendment 1.

Government amendments 11 and 12.

Amendment 42, in clause 8, page 14, line 27, at end insert—

“and

(d) in relation to accommodation provided to service people in Northern Ireland, a requirement for that accommodation to meet the Decent Homes standard for Northern Ireland.”

See the explanatory statement for Amendment 39.

Government amendments 13 to 15.

Amendment 6, in clause 8, page 18, line 7, at end insert—

“343AG Section 343AF: report

The Secretary of State must lay a report before each House of Parliament no later than three months after the day on which this Act is passed on how the powers in section 343F (Sections 343AA to 343AD: power to add bodies and functions) will work in practice.”

This amendment would require the Secretary of State to set out how powers in the Bill could be used to widen its scope to address all matters of potential disadvantage for service personnel under the Armed Forces Covenant including employment, pensions, compensation, social care, criminal justice and immigration.

Clauses 8 and 9 stand part.

Government amendments 16 to 23.

Clauses 10 to 13 stand part.

Government amendments 24 to 30.

Clauses 14 to 26 stand part.

New clause 1—Waived fees for indefinite leave to remain for serving or discharged member of the UK armed forces

“(1) The Immigration Act 2014 is amended as follows.

(2) In section 68, after (11) insert—

‘(12) No fees may be charged in respect of a serving or previously serving member of the UK armed forces, or their family members, applying for indefinite leave to remain under Appendix Armed Forces of the Immigration Rules.’”

This new clause would amend the Immigration Act 2014 to waive the fee for indefinite leave to remain applications for any current or previously serving Members of the UK Armed forces, and their families.

New Clause 2—Duty of care to service personnel

“(1) The Secretary of State must establish a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations, as defined in section 1(6) of the Overseas Operations (Service Personnel and Veterans Act 2021.

(2) The Secretary of State must lay a copy of the duty of care standard under subsection (1) before Parliament within six months of the date on which this Act is passed.

(3) The Secretary of State must thereafter in each calendar year—

(a) prepare a duty of care update, and

(b) include the duty of care update in the Armed Forces Covenant annual report when it is laid before Parliament.

(4) The duty of care update is a review about the continuous process and improvement to meet the duty of care standard established in subsection (1), in particular in relation to incidents arising from overseas operations of—

(a) litigation and investigations brought against service personnel for allegations of criminal misconduct and wrongdoing;

(b) civil litigation brought by service personnel against the Ministry of Defence for negligence and personal injury;

(c) judicial reviews and inquiries into allegations of misconduct by service personnel; and

(d) such other related fields as the Secretary of State may determine.

(5) In preparing a duty of care update the Secretary of State must have regard to, and publish relevant data in relation to (in respect of overseas operations)—

(a) the adequacy of legal, welfare and mental health support services provided to service personnel who are accused of crimes;

(b) complaints made by service personnel or their legal representation when in the process of bringing or attempting to bring civil claims against the Ministry of Defence for negligence and personal injury;

(c) complaints made by service personnel or their legal representation when in the process of investigation or litigation for an accusation of misconduct: and

(d) meeting national standards of care and safeguarding for families of service personnel, where relevant.

(6) In subsection (1) “service personnel” means—

(a) members of the regular forces and the reserve forces;

(b) members of British overseas territory forces who are subject to service law;

(c) former members of any of Her Majesty’s forces who are ordinarily resident in the United Kingdom; and

(d) where relevant, family members of any person meeting the definition within paragraph (a), (b) or (c).

(7) In subsection (1) “duty of care” means both the legal and moral obligation of the Ministry of Defence to ensure the wellbeing of service personnel.

(8) None of the provisions of this section may be used to alter the principle of combat immunity.”

This new clause will require the Secretary of State to establish a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations.

New clause 4—Report on dismissals and forced resignations for reasons of sexual orientation or gender identity

“(1) The Secretary of State must lay before Parliament a report on the number of people who have been dismissed or forced to resign from the Armed Forces due to their sexual orientation or gender identity.

(2) The report under subsection (1) must include cases where—

(a) there is formal documentation citing sexuality as the reason for their dismissal; or

(b) there is evidence of sexuality or gender identity being a reason for their dismissal, though another reason is cited in formal documentation.

(3) The report under subsection (1) must include recommendations of the sort of compensation which may be appropriate, including but not limited to—

(a) the restoration of ranks;

(b) pensions; and

(c) other forms of financial compensation.

(4) The report must include a review of the cases of those service personnel who as a result of their sexuality have criminal convictions for sex offences and/or who are on the Sex Offenders Register.

(5) The report must include discharges and forced resignations back to at least 1955.

(6) The first report under subsection (1) must be laid no later than 6 months after the day on which this Act is passed.

(7) The Secretary of State may make further reports under subsection (1) from time to time.

(8) In this section, “sexuality or gender identity” includes perceived or self-identified sexuality or gender identity.”

This new clause requires the Government to conduct a comprehensive review of the number of people who were dismissed or forced to resign from the Armed Forces due to their sexuality and to make recommendations on appropriate forms of compensation.

New clause 6—Duty of care for alcohol, drugs and gambling disorders

“(1) The Armed Forces Act 2006 is amended as follows.

(2) After section 20(2)(d) insert—

‘(e) the person is dependent on, or has a propensity to misuse, alcohol or drugs.’

(3) After section 20(3) insert—

‘(3A) The Secretary of State has a duty of care to offer a specific pathway for support and treatment for current and previously serving service personnel who experience—

(a) a propensity to misuse, alcohol and drugs,

(b) alcohol or drug dependency, and

(c) gambling disorder.

(3B) The Secretary of State must include in the annual Armed Forces Covenant report—

(a) the number of people accessing treatment and support as set out in section (1), and

(b) the current provisions for rehabilitation facilities for Armed Forces personnel who are experiencing a propensity to misuse or have a dependency on alcohol, drugs and gambling.’”

New clause 7—Indefinite leave to remain payments by Commonwealth and Gurkha

members of armed forces

“(1) The Immigration Act 2014 is amended as follows.

(2) In section 68 (10), after ‘regulations’ insert “must make exceptions in respect of any person with citizenship of a Commonwealth country (other than the United Kingdom) who has served at least four years in the UK armed forces, or in respect of any person who has served at least four years in the Brigade of Gurkhas, such exceptions to include capping the fee for any such person applying for indefinite leave to remain at no more than the actual administrative cost of processing that application, and”

This new clause will ensure that Commonwealth and Gurkha veterans applying for Indefinite Leave to Remain following four years of service will only pay the unit cost of an application.

New clause 8—Armed Forces Federation

“(1) The Armed Forces Act 2006 is amended as follows.

(2) After section 333, insert—

‘333A Armed Forces Federation

(1) There shall be an Armed Forces Federation for the United Kingdom for the purpose of representing members of the Armed Forces in the United Kingdom in all matters affecting their welfare, remuneration and efficiency, except for—

(a) questions of promotion affecting individuals, and

(b) (subject to subsection (2)) questions of discipline affecting individuals.

(2) The Armed Forces Federation may represent a member of the Armed Forces at any proceedings or on an appeal from any such proceedings.

(3) The Armed Forces Federation shall act through local and central representative bodies.

(4) This section applies to reservists of the Armed Forces as it applies to members of the Armed Forces, and references to the Armed Forces shall be construed accordingly.

333B Regulations for the Armed Forces Federation

(1) The Secretary of State may by regulations—

(a) prescribe the constitution and proceedings of the Armed Forces Federation, or

(b) authorise the Federation to make rules concerning such matters relating to their constitution and proceedings as may be specified in the regulations.

(2) Without prejudice to the generality of subsection (1), regulations under this section may make provision—

(a) with respect to the membership of the Federation;

(b) with respect to the raising of funds by the Federation by voluntary subscription and the use and management of funds derived from such subscriptions;

(c) with respect to the manner in which representations may be made by committees or bodies of the Federation to officers of the Armed Forces and the Secretary of State; and

(d) for the payment by the Secretary of State of expenses incurred in connection with the Federation and for the use by the Federation of premises provided by local Armed Forces bodies for Armed Forces purposes.

(3) Regulations under this section may contain such supplementary and transitional provisions as appear to the Secretary of State to be appropriate, including provisions adapting references in any enactment (including this Act) to committees or other bodies of the Federation.

(4) A statutory instrument containing regulations under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(5) This section applies to reservists of the Armed Forces as it applies to

members of the Armed Forces.’”

This new clause would create a representative body for the Armed Forces, akin to the Police Federation, which would represent their members in matters such as welfare, pay and efficiency.

New clause 9—Investigation of allegations related to overseas operations

“(1) In deciding whether to commence criminal proceedings for allegations against a member of Her Majesty’s Forces arising out of overseas operations, the relevant prosecutor must take into account whether the investigation has been timely and comprehensively conducted.

(2) Where an investigator of allegations arising out of overseas operations is satisfied that there is sufficient evidence of criminal conduct to continue the investigation, the investigator must within 21 days refer the investigation to the Service Prosecuting Authority with any initial findings and accompanying case papers.

(3) An investigation may not proceed after the period of 6 months beginning with the day on which the allegation was first reported without the reference required in subsection (2).

(4) On receiving a referral under subsection (2), the Service Prosecuting Authority must either—

(a) order the investigation to cease if it considers it unlikely that charges will be brought, or

(b) give appropriate advice and directions to the investigator about avenues of inquiry to pursue and not pursue, including—

(i) possible defendants to consider,

(ii) possible explanations to consider for the circumstances giving rise to the investigation, and

(iii) overseas inquiries and seeking the help of overseas jurisdictions.

(5) Where the investigation proceeds, the Service Prosecuting Authority must monitor and review its progress at intervals of three months and must on each review make a decision in the terms set out in subsection (4).

(6) On the conclusion of the investigation, the investigator must send a final report with accompanying case papers to the Service Prosecuting Authority for the consideration of criminal proceedings.

(7) After receipt of the final report, the facts and circumstances of the allegations may not be further investigated or reinvestigated without the direction of the Director of Service Prosecutions acting on the ground that there is new compelling evidence or information which might—

(a) materially affect the previous decision, and

(b) lead to a charge being made.

(8) The Judge Advocate General may give Practice Directions as he or she deems appropriate for the investigation of allegations arising out of overseas operations.

(9) For the purposes of this section—

‘case papers’ includes summaries of interviews or other accounts given by the suspect, previous convictions and disciplinary record, available witness statements, scenes of crime photographs, CCTV recordings, medical and forensic science reports;

‘investigator’ means a member of the service police or a civil police force.”

That schedule 1 be the First schedule to the Bill.

That schedule 2 be the Second schedule to the Bill.

Government amendments 31 to 38.

That schedule 3 be the Third schedule to the Bill.

That schedule 4 be the Fourth schedule to the Bill.

That schedule 5 be the Fifth schedule to the Bill.

Leo Docherty Portrait The Minister for Defence People and Veterans (Leo Docherty)
- Hansard - - - Excerpts

It is a privilege to speak to the Armed Forces Bill before a Committee of the whole House. Indeed, it is fitting that the Bill should come before the Committee during Armed Forces Week, when we celebrate and commemorate Her Majesty’s armed forces.

Before speaking to the Bill, I want to express my gratitude to the members of the Select Committee on the Armed Forces Bill, some of whom are here today, and to thank them for their rigorous and professional approach to the work of that Committee. I commend their published report.

In simple terms, the Bill’s primary purpose is to renew the Armed Forces Act 2006—

Stuart Anderson Portrait Stuart Anderson
- Hansard - - - Excerpts

I thank the Minister for giving way. I wanted to get in early to mention the armed forces covenant, which means a lot to me, as I will explain later.

We have many proud veterans in Wolverhampton who have given so much for this country, and the armed forces mean loads to them. When the diary permits, will my hon. Friend come to Wolverhampton to meet those veterans and hear at first hand what the covenant means for their lives?

Leo Docherty Portrait Leo Docherty
- Hansard - - - Excerpts

I thank my hon. Friend for his intervention, and I would be delighted to accept an invitation to Wolverhampton. I acknowledge and applaud the magnificent work he does in Wolverhampton to support his veterans. I hope the Bill is well received by them, and we thank them for their service.

The Bill will deliver improvements to the service justice system and, most importantly, it delivers on our commitment to enshrine the armed forces covenant in law.

Ian Paisley Portrait Ian Paisley (North Antrim) (DUP)
- Hansard - - - Excerpts

I thank the Minister for giving way so early in his speech. Unlike the hon. Member for Wolverhampton South West (Stuart Anderson), I can say that I was delighted to see the Minister when he came to Northern Ireland last week. I am glad that Northern Ireland got ahead of Wolverhampton on the issue—no offence to my colleague.

Will the Minister spell out clearly at this early stage that veterans in Northern Ireland will be treated equally to veterans from any other part of the United Kingdom, and that no impediment will be allowed to get in the way of veterans being treated fairly and equitably across the United Kingdom, which they should and must be? Will he assure us that the legacy issues will be brought before the House before it rises for the summer?

Leo Docherty Portrait Leo Docherty
- Hansard - - - Excerpts

I thank the hon. Gentleman for his intervention. I was very pleased last week to meet several veterans’ groups, both of home service and of overseas service, to hear about their experiences. The Government are committed to driving towards parity of provision for all veterans, whether they be of home service or overseas service. In terms of legacy issues, he will know that work is ongoing within the Northern Ireland Office, and the Government are absolutely committed—and full of resolve—to delivering the closure that our veterans need with honour and finality.

Ian Paisley Portrait Ian Paisley
- Hansard - - - Excerpts

I really appreciate what the Minister is saying. He knows how vital this issue is. I do not underestimate the Government’s commitment, but I am concerned about the dead hand of officials and political activists in Northern Ireland. Will there be finality on this matter in July? Will a statute of limitations be introduced then?

Leo Docherty Portrait Leo Docherty
- Hansard - - - Excerpts

I cannot get into the timing, and it would not be useful for me to do that at this time. I know that work is continuing apace and that it is a top priority for both the Prime Minister and the Northern Ireland Office. I share the hon. Gentleman’s sense of urgent desire to see this delivered.

The covenant was introduced in its current form a decade ago, and it has undoubtedly had an enormous and very beneficial impact for many within our service community. However, too often, the experience of the covenant depends on where someone lives, so more does need to be done. The Bill delivers for our service personnel and veterans by, for the first time ever, creating a duty for relevant public bodies across the whole of the United Kingdom to pay due regard to the principles of the covenant in the areas of housing, healthcare and education. The Bill represents a significant milestone and delivers on a key manifesto commitment to enshrine further the covenant into law.

In the area of housing, the duty will cover those bodies that are responsible for social housing, homelessness policy and the administration of disabled facilities grants, which can be vital for injured veterans. In education, we know that our service families sometimes face challenges due to their mobile lifestyles in accessing suitable school places for their children, including those with special educational needs. The duty will therefore ensure that the needs of service children are properly understood. In healthcare, much has already been achieved, but service families and veterans still sometimes experience disadvantage, often caused by their mobility or by healthcare requirements resulting from service. The duty will apply to all bodies that are responsible for commissioning and delivering healthcare services across the UK. Housing, healthcare and education are the essential areas, but to future-proof the Bill there is a provision to allow the scope of the duty to be expanded beyond those areas.

Kevan Jones Portrait Mr Kevan Jones (North Durham) (Lab)
- Hansard - - - Excerpts

Will the Minister give way?

Leo Docherty Portrait Leo Docherty
- Hansard - - - Excerpts

I am delighted to give way.

Kevan Jones Portrait Mr Jones
- Hansard - - - Excerpts

When the Command Paper was launched in 2005 by Bob Ainsworth, we had cross-Government work and armed forces champions in Departments because it was about central Government standing up to help veterans as well. Why, therefore, does the scope of the Bill exclude central Government Departments?

Leo Docherty Portrait Leo Docherty
- Hansard - - - Excerpts

It does not need to include Government Departments, because that provision is already made. There are Ministers in every Department holding the lead for veterans’ issues, and the Secretary of State is accountable in his annual report. Therefore, the provision for making central Government accountable is already in place.

Kevan Jones Portrait Mr Jones
- Hansard - - - Excerpts

The Minister says that, but in effect it is not in place, because there is no redress. I must say that I am disappointed with the powers of redress in the Bill even in the areas where they are included. What are the powers of redress against Departments in respect of the covenant—not in respect of any other type of complaint there might be? How would a veteran ensure that the covenant was implemented by the Department of Health and Social Care at a national level, and what redress is there?

Leo Docherty Portrait Leo Docherty
- Hansard - - - Excerpts

The right hon. Gentleman knows that, in terms of all national provision, Ministers are accountable, as I am being accountable right here, right now. What we are dealing with today is the local provision. If individuals feel that they have not had adequate provision and are disadvantaged, they could pursue the route of judicial review in the worst case. We believe that, at the local level, most local authorities want to get this right, and we are just laying out best practice examples for them to follow.

Leo Docherty Portrait Leo Docherty
- Hansard - - - Excerpts

I will give way one last time before I make some significant progress.

Jamie Stone Portrait Jamie Stone
- Hansard - - - Excerpts

Can the Minister give me the same reassurance when it comes to Departments in the devolved Administrations, such as the Scottish Government?

Leo Docherty Portrait Leo Docherty
- Hansard - - - Excerpts

Absolutely I can, and I am very pleased to.

I turn to the technical amendments. Amendments 8 to 15 relate to the armed forces covenant, amendments 16 to 23 and 31 to 38 amend the service complaints provisions, and amendments 24 to 30 relate to the provision on driving disqualification.

Leo Docherty Portrait Leo Docherty
- Hansard - - - Excerpts

I am delighted to give way to my right hon. Friend.

Andrew Murrison Portrait Dr Murrison
- Hansard - - - Excerpts

Can the Minister confirm, before he gets technical, that the overriding consideration in all this is that servicemen, servicewomen and their families should suffer no disadvantage by virtue of their military service? There will be test cases arising from the guidance to which he has referred in which people say, “Look, I’ve been disadvantaged because I’m in the armed forces.” The acid test has to be what they would have got from the system if they had not been serving. Surely that is the guiding star in all this.

Leo Docherty Portrait Leo Docherty
- Hansard - - - Excerpts

My right hon. Friend is absolutely correct. That is the fundamental basis of all this, and that is at the heart of the statutory guidance. We are confident that local authorities will bear that in mind in the way they afford provision in the critical areas that I have described, but of course there may be test cases and we will take note of them if they arise.

A number of Opposition amendments and new clauses have been tabled. I want to concentrate on the key ones that specifically relate to the service justice system and the armed forces covenant. Amendment 7 seeks to ensure that the most serious crimes are automatically tried in the civilian courts when committed by a serviceperson in the UK, thereby undermining the current legal position that there is full concurrent jurisdiction between the service and civilian justice systems. The amendment would mean that the most serious offences, when committed in the UK, could never be dealt with in the service justice system, even though the Lyons review recommended that the most serious offences could and should continue to be tried in the service justice system with the consent of the Attorney General.

The Government have a more pragmatic approach. We are confident that the service justice system is capable of dealing with all offences, whatever their seriousness and wherever they occur, bolstered by improvements recommended by the Lyons review, such as the creation of the defence serious crime unit and improvement to the support to victims. The service police, prosecutors and judiciary are trained, skilled and experienced. Victims and witnesses receive comparable support to the civilian system, for example through the armed forces code of practice for victims of crime, which we continue to keep updated in line with civilian practices. The amendment would remove the valuable role of independent prosecutors in allocating cases to the most appropriate jurisdiction.

Clause 7 improves and strengthens the protocol between service and civilian prosecutors to determine where cases are tried. That improvement will bring much-needed clarity on how decisions on jurisdiction are made and will ensure transparency and independence from the chain of command and Government. To be clear, the aim of this approach is not to increase the number of serious crimes being tried in the court martial. The civilian prosecutor will always have the final say. I therefore urge the Committee to reject amendment 7.

Amendments 1 to 4 would create a duty on central Government and devolved Administrations. Clause 8, as it stands, covers public functions in healthcare, housing and education exercised by the local or regional bodies that are responsible for those services. Those are the key areas of concern for our armed forces community. Central Government’s delivery of the covenant is regularly scrutinised, as I referred to in my answer to the right hon. Member for North Durham (Mr Jones), and the Armed Forces Act 2006 requires the Secretary of State for Defence to lay an annual report before Parliament. Devolved Administrations and other bodies are given an opportunity to contribute their views to that report. That duty to report will remain a legal obligation, and it remains the key, highly effective method by which the Government are held to account for delivery of the covenant.

Amendments 39 to 42 seek to ensure that all service housing is regulated in line with the local minimum quality. These amendments are unnecessary because, in practice, 96.7% of MOD-provided service family accommodation meets or exceeds the Ministry of Housing, Communities and Local Government’s decent homes standard. The amendments would introduce an unhelpful disparity across the UK and would not achieve their intended effect, because local authorities that fall within the scope of the current duty are not responsible for the provision of service accommodation, so these amendments should be withdrawn.

The provision of high-quality subsidised accommodation remains a fundamental part of the overall MOD offer to service personnel and their families. Over the past decade, we have invested £1.2 billion in single living accommodation and another £1.5 billion will be invested over the next 10 years. Additionally, we are rolling out the future accommodation model to improve choice, and I am pleased to report that the forces Help to Buy scheme has helped more than 24,000 personnel to buy a new home over the past seven years.

New clause 9 seeks to introduce artificial timelines for the progress of investigations. These are operationally unrealistic. They do not take account of the nature of investigations on overseas operations and could put us in breach of our international obligations, including under the European convention on human rights, to effectively investigate serious crimes. The right hon. Member for North Durham will be aware, following my letter to him on 7 June, that the detail of this new clause has been provided to Sir Richard Henriques for consideration as part of his review into investigations, and I am confident that Sir Richard will consider this matter very carefully.

Kevan Jones Portrait Mr Kevan Jones
- Hansard - - - Excerpts

I thank the Minister for his letter, but let us be honest, we are in this mess because of his predecessor, the hon. Member for Plymouth, Moor View (Johnny Mercer), who promised that the issues around time limits and investigations would be in this Bill. When I address my amendments, I shall read them out at length. I welcome the fact that they have been referred to Judge Henriques, but the question is: when will they then be implemented? Are we going to have to wait another five years for a new armed forces Bill before that happens? Otherwise, the Minister is going to have to find legislative time to implement them. There is an opportunity to do it now and, frankly, we should do it now.

Leo Docherty Portrait Leo Docherty
- Hansard - - - Excerpts

I am grateful for the right hon. Gentleman’s intervention. I think we have to wait and see what Sir Richard Henriques reports. It is not appropriate to propose changes while his review is ongoing, so we will wait and see, and we will respond when he formally reports.

Kevan Jones Portrait Mr Jones
- Hansard - - - Excerpts

Will the Minister give way?

Leo Docherty Portrait Leo Docherty
- Hansard - - - Excerpts

Yes, I would be delighted to give way before I crack on and make progress.

Kevan Jones Portrait Mr Jones
- Hansard - - - Excerpts

I accept what the Minister is saying, but his predecessor promised, when he got into a real mess on the Overseas Operations (Service Personnel and Veterans) Bill, that this issue would be addressed in this Bill. It is clearly not going to be, and has now been kicked into the review. My concern is the real issues that will leave members of the armed forces open to vexatious accusations for another five years. The only way to deal with that would be to find legislative time to bring in a new Bill, but I urge the Minister to just do it now.

Leo Docherty Portrait Leo Docherty
- Hansard - - - Excerpts

We have to do it the right way round. We totally acknowledge the central importance of getting investigations right in terms of delivering for our people. We will not seek to reverse-engineer the schedule of work that is before us; we will wait for Sir Richard Henriques to report, then we will calmly consider the best way forward. What I will commit to today is an absolute resolve to deliver a rigorous and sound investigation system, because it is the lack of such provision that has bedevilled our armed forces people over the last 20 years. We do take this very seriously indeed.

Moving now to new clause 2, the Government take very seriously their duty of care for service personnel and veterans under investigation. This was debated at length in the other House during the passage of the Overseas Operations (Service Personnel and Veterans) Bill, and I have engaged with Lord Dannatt, who tabled the original amendment. I therefore wish to highlight two brief points. First, service personnel are entitled to receive comprehensive legal support; and secondly, a full range of welfare and mental health support is routinely offered to all our people. This support is available both while someone is serving and through the dedicated support to veterans through the NHS’s Op Courage in England and its devolved equivalents. We are striving for a gold standard of care and the Secretary of State’s written ministerial statement on 13 April details the significant progress made.

In the case of veterans, we continue to deliver further improvements through the veterans’ strategy, so new clause 2 is unnecessary and could result in unintended consequences. A duty of care standard risks becoming a one-size-fits-all approach, leaving personnel without the right support at the right time. The difficulties of drafting such a duty of care would inevitably mean the involvement of the courts and additional litigation. We are clear on our duty to provide the correct support to our personnel, both serving and veterans, and I urge the hon. Member for Portsmouth South (Stephen Morgan) to withdraw new clause 2.

Stephen Morgan Portrait Stephen Morgan (Portsmouth South) (Lab)
- Parliament Live - Hansard - - - Excerpts

It is a pleasure to speak from the Dispatch Box on this important legislation ahead of Armed Forces Day on Saturday. This Armed Forces Week is a chance to recognise and celebrate the service of our nation’s forces at home and abroad, past and present. Up and down the country, physical and virtual events will be held while the Armed Forces Day flag is flying proudly on buildings and famous landmarks around the UK. I was delighted to attend the flag-raising ceremony here in the House on Monday, where Mr Speaker set an example by signing the covenant. I look forward to events this weekend in my home city of Portsmouth, the heart and home of the Royal Navy.

Today is also Reserves Day, so I would like to take the opportunity to celebrate their contribution to our national defence and resilience. This year in particular has seen reservists contribute to the covid support force, providing medical and logistical support, as well as deploying skills from their professional lives. They remain a unique asset, the hidden heroes among us, balancing work and training. It is vital that they are better integrated into our forces.

It is timely that the Bill comes back before the House today. Labour supports our armed forces and welcomes the principles behind the Bill, which provides a rare opportunity for the Government to deliver meaningful improvements to the day-to-day lives of our forces’ personnel, veterans and their families. Its unusual legislative journey means that we have had a chance to consider it in detail and have a genuine cross-party discussion on how improvements can be made. That is the spirit in which Labour has approached the Bill. We have worked with service personnel, veterans, service charities and colleagues from across the House to get the very best for our forces in this once-in-a-Parliament piece of legislation.

I want to pay tribute to the local authorities, service providers, charities and voluntary organisations that are working hard to make the covenant a reality across the United Kingdom. I also want to thank those who served alongside me on the Bill Select Committee and the hon. Member for Bracknell (James Sunderland) for his leadership in the Chair. Despite that considered and expert input, however, the Government have consistently refused to hear and address fundamental concerns about the Bill. In doing so, they are missing an opportunity to deliver real improvements to the day-to-day lives of service personnel, veterans and their families. Labour’s amendments offer Ministers a fresh opportunity to get that right.

Turning to amendments 1 to 4 and 6, first, evidence from charities such as the Royal British Legion and those delivering services for veterans on the ground has reinforced Labour’s concerns that the Bill is too weak and too narrow. The Bill piles new and vague legal responsibilities to deliver the covenant on a wide range of public bodies, but mysteriously they do not apply to central Government. In practice, this would create a farcical reality where a chair of school governors has a legal responsibility to have due regard to the armed forces covenant, but Government Departments, including the Ministry of Defence, do not. As the Legion itself has pointed out, many of the policy areas in which members of the armed forces community experience difficulty are the responsibility of national Government or based on national guidance. Ministers must not be allowed to outsource the delivery of important promises in the armed forces covenant. Also, the Bill’s limited focus on housing, healthcare and education risks creating a two-tier covenant. This could start a race to the bottom on standards in other areas and will bake in the existing postcode lottery on access to services. Social care, pensions, employment and immigration are among the long list of areas we know will not be covered by this once-in-a-Parliament piece of legislation as it stands.

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Jim Shannon Portrait Jim Shannon
- Hansard - - - Excerpts

I thank the hon. Lady for her intervention and wholeheartedly agree that there are things to do. I hope the Minister will respond to her, and also to me, because I endorse what she has said. It is obvious to me that whenever issues are brought to the attention of Ministers and the Ministry of Defence, things do happen—for instance, the status of the Afghan translators has been changed owing to perseverance and lobbying inside and outside the House—and I suggest that if there is an anomaly to be addressed, we should do that. The way to do it is for our Minister to respond, and I hope he will do so.

Let me return to the fee, which stands at £2,389 per person, despite the unit cost to the Home Office of processing an application being just £243. I always try to be respectful in the Chamber, but when I see figures of £243 and £2,389, I wonder to myself, “Where’s the money going?” For a family of four, the fee would be £9,556. People do not move on their own; they move as part of a family, so I believe consideration should be given to all the family.

I agree that the Government have found some way to acknowledge the debt in that they have proposed dropping fees for personnel who have served more than 12 years, but that does not include any provision for the families, I understand. If the Minister is able to reassure me on the matter, I will be more than happy to respect that.

This must change, and I fully support new clauses 1 and 7 with respect to those who fight to protect these shores. We cannot refuse entry by way of fees, which could take years to save, and perhaps more years to pay off. This small step could change lives and bring working families to enjoy what they have served to uphold. When someone serves, it is not simply their life that is changed; it is the life of the entire family. That is the issue. During the urgent question on vaccinations earlier today, I made a point about families to the Minister for the Armed Forces, the hon. Member for Wells (James Heappey). It is not just one person who is involved, but a family, and often a family of four or more. The immediate family must be part of the equation at all levels.

I welcome some of the work that has been done in relation to veterans. I have a deep interest in veterans owing to the service rendered by my Strangford constituents. Many people have joined over the years and some have lived with the problems of post-traumatic stress disorder. I see the hon. Member for Bracknell (James Sunderland) in his place. I thank him for his recent report, which has gone some way to addressing those issues.

I want to make a point about a charity called Beyond the Battlefield. It started 10 years ago in my constituency. There are many charities, but I want to speak about this one. Last year, it looked after 850 veterans. Whether it is benefits issues, social housing, health issues, family issues or legal advice, the help that it gives is incredible. Many people that the organisation helps are those who have fallen under the radar; other charities do not pick them up and they face real problems. In particular, I commend Annemarie Hastings and Rob McCartney for the work they have done through Beyond the Battlefield.

The charity organises a walk at the end of May called “A Big Dander”. If someone goes for a walk or a long run, somewhere at the bottom of that is what we call a dander—just take it at your leisure. Connor Ferguson and Ian Reid covered 430 miles in two days, crossing seven peaks and raising some £15,500. I commend them for that. Beyond the Battlefield survives on contributions and volunteer charity events like that one, and it does tremendous work.

I turn to the armed forces covenant. The hon. Member for Brecon and Radnorshire (Fay Jones) referred to her wish—it is my wish as well—to have the armed forces covenant in situ, not just here on the mainland, but for the whole United Kingdom of Great Britain and in particular Northern Ireland.

In the background information, I see that the Committee “welcomed the Bill’s proposals” and referred to

“the areas of housing, healthcare and education in the last 12 months…the effectiveness of the legislation and comment on future scope…a memorandum to the Defence Committee two years after the legislation is enacted to enable the Defence Committee to conduct post-legislative scrutiny into how the Act has worked in practice.”

I want that covenant for my constituents in Strangford and all those across the whole of Northern Ireland who have served Queen and country in uniform, so that they have the same rights as they would here.

In the same spirit, I lend my support to amendments 39 and 40 on the standard of housing in the armed forces. Family units sacrifice to serve and it is vital that we do right by them. How can we expect a man or woman to serve with focus if they are worried about the housing in which their family reside back home? How can they serve with focus if they are concerned that their child’s asthma—this is one issue that has come to my attention—is worsening because of damp in their housing? The answer is that they cannot. It is their duty to sacrifice for us and they do so willingly. We in this House must do the same for them and address the issue of decent housing for families. It is sad that we need to legislate in this way, but the fact is that some Army housing is not fit for purpose and funding must urgently be allocated for those family homes. I am coming to the end of my contribution, Madam Deputy Speaker.

In my constituency, I have an Army couple—one person from Northern Ireland and one from England—who refuse to put their five-year-old into Army housing, so they private rent. It is not because they want to be better than anybody else. It is because the rented accommodation that they were offered just was not suitable for their child or for them; indeed, I would suggest that it is not suitable for anybody. Given that they have had to private rent, their decent wage is taken up almost in its entirety by rent and childcare.

When we ask people to serve, we take them away from the support of siblings and parents who might be able to mind their children, yet—with great respect—we do not provide enough for them to live comfortably when doing so. It is little wonder that many families choose to split their time by keeping a base in one town to which they travel on weekends and when on leave, and another only for work. One step towards a good working family is providing housing that is fit for purpose that families can live in together and save the money that they can while working on base, and doing away with the use of very costly private rentals.

I am immensely proud of our armed forces, as we all are in this House. We stand in awe of those who serve in uniform, whether in the Royal Navy, the Royal Air Force or the Army. We are so proud of what they have done for us, and I believe that we in this House have to do our best for them, with gratitude for their service and for their families, who are part of that service. We need to give them the best; unfortunately, we are not there just yet.

Leo Docherty Portrait Leo Docherty
- Hansard - - - Excerpts

I thank all Members who have spoken today for their thoughtful and sincere contributions, and I wish to put on record again my gratitude for the effective chairmanship of the Select Committee on the Armed Forces Bill by my hon. Friend the Member for Bracknell (James Sunderland). I also wish to thank the hon. Member for Portsmouth South (Stephen Morgan) for the constructive tone of his remarks today. He rightly spoke at some length on the historic hurt suffered by those dismissed from military service purely for their sexual orientation—this related to new clause 4. We also heard welcome remarks on that from the hon. Member for Glasgow North West (Carol Monaghan), the right hon. Member for North Durham (Mr Jones), my hon. Friend the Member for Bracknell, the hon. Member for Liverpool, Walton (Dan Carden), who made a moving speech, and the hon. Member for Caithness, Sutherland and Easter Ross (Jamie Stone). So I want to put clearly on the record the fact that the historical ban on homosexuality in the armed forces was absolutely wrong and there was horrific injustice as a consequence of it. We will go all out to address that injustice. We are resisting new clause 4 today because we believe that if we accepted that, it would complicate our efforts to address at pace this injustice. But getting after this historical hurt and delivering justice for these people is at the heart of our veterans’ strategy, which I will be announcing later this year. I have met Fighting with Pride already to that end. So we will address this injustice with compassion and deep urgency.

Many Members mentioned settlement fees in relation to new clauses 1 and 7. New clause 1 stood in the name of the hon. Member for Caithness, Sutherland and Easter Ross, but other Members spoke to it, including my hon. Friend the Member for Bracknell, the hon. Member for Ceredigion (Ben Lake), my hon. Friend the Member for Burnley (Antony Higginbotham), the hon. Member for Putney (Fleur Anderson), my hon. Friend the Member for Darlington (Peter Gibson), and the hon. Members for Stockport (Navendu Mishra) and for Strangford (Jim Shannon), who also mentioned the cases of Afghan interpreters. I am pleased that they are now coming to our country for the sake of refuge. Let me be clear again that the provisions for settlement fees are out for public consultation, which will conclude on 7 July. I cannot pre-empt what it will find, but I am optimistic and expectant that we will deliver a good and honourable result for those who serve and deserve to be able to settle without exorbitant and unjust fees.

The right hon. Member for North Durham returned to the familiar theme of investigations, and I am pleased to confirm to him this afternoon that Justice Henriques will report by the end of the summer, at which point we will consider with sincerity and rigour the recommendations within that report. I have no doubt that we will communicate further on this subject.

Kevan Jones Portrait Mr Kevan Jones
- Hansard - - - Excerpts

I have been a Minister in the Ministry of Defence, so will the Minister just clarify what he means by “the summer”, because there is a big difference between what we all know as the summer and what the MOD knows as the summer? Is he referring to what we recognise or will it be later in the year?

Leo Docherty Portrait Leo Docherty
- Parliament Live - Hansard - - - Excerpts

I am pleased to confirm that that means summer this year, not summer next year.

I was pleased to hear from a trio of Welsh MPs: my hon. Friend the Member for Brecon and Radnorshire (Fay Jones), the hon. Member for Ceredigion and my hon. Friend the Member for Ynys Môn (Virginia Crosbie). The hon. Member for Ceredigion questioned whether or not we should have had a legislative consent mechanism in relation to this Bill. I am happy to confirm to him that that is not required—we have taken legal advice on that. My hon. Friend the Member for Brecon and Radnorshire referred to my recent visit to Wales, when I was very pleased to meet veterans and members of the armed forces and to hear about the very important work of armed forces liaison officers in relation to the local delivery of the armed forces covenant. We had discussions about whether or not there is a need for a veterans commissioner for Wales, and I would hope that all three Welsh Members who spoke today would support that notion, because it would, in addition to the armed forces liaison officers, deliver some value for our defence people and our veterans. I urge the Welsh Government, as I will do in future meetings, to look at that very seriously.



We were pleased also to hear from the hon. Member for West Dunbartonshire (Martin Docherty-Hughes), who brought his usual good cheer and sincere interest in defence affairs to the Chamber virtually. My hon. Friend the Member for Burnley referred, quite rightly, to the valued work of the armed forces parliamentary scheme, through the trust. He spoke about the centrality of people to everything we do in defence, and I thought that was very apposite.

My hon. Friend the Member for Bury South (Christian Wakeford) spoke about the breakfast club in Bury, and about the challenges faced by veterans and servicepeople when it comes to alcohol. I have noticed a discernible shift in the drinking culture in the armed forces: it is becoming much less of a thing. During my visit to Wales, I met serving members of 1 Para, who said that the gym is the new bar. That is quite interesting, compared with my experiences as a young soldier 20 years ago. Of course I spent a lot of time in the gym, but I was also committed to time in the bar. I think that culture may be shifting. I will be happy to support my hon. Friend’s efforts in Bury South—if he was in his place, I could give him that personal commitment—and the work of my hon. Friend the Member for Bury North (James Daly) to support veterans at the local level.

The hon. Member for Putney made a fitting tribute to the magnificent Royal Marine reserve unit in her constituency. I can confirm that if she comes to Aldershot, she will see a lot of armed forces personnel cutting around in public, in the garrison and in Tesco. She would be very welcome to do that.

My hon. Friend the Member for Dudley North (Marco Longhi) also mentioned the Armed Forces Parliamentary Trust. My hon. Friend the Member for Darlington and the hon. Member for Stockport mentioned the valuable work that veterans do to support their local communities.

I think we were all moved by the contribution of my hon. Friend the Member for Wolverhampton South West (Stuart Anderson). His moving testimony of his personal experience of the armed forces covenant, both as someone in despair following service and then as an armed forces champion, caught the House’s attention and was very welcome.

Ten years ago, the covenant was relaunched to set out our nation’s promise to honour the immense contribution and commitment of our armed forces people. Ten years on, we are going further still. Anyone who has served their country knows that they should never face disadvantage because of their service. Today, we honour our servicepeople and our veterans. This Bill delivers, and I commend it to the House.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clauses 2 to 7 ordered to stand part of the Bill.

Clause 8

Reserve forces: flexibility of commitments

Amendment proposed: 1, in clause 8, page 9, line 19, at end insert—

“(aa) a relevant government department;”—(Stephen Morgan.)

This amendment, with amendments 2, 3 and 4, would place the same legal responsibility to have ‘due regard’ to the Armed Forces Covenant on central government and the devolved administrations as the Bill currently requires of local authorities and other public bodies.

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17:18

Division 33

Ayes: 271

Noes: 355

The list of Members currently certified as eligible for a proxy vote, and of the Members nominated as their proxy, is published at the end of today’s debates.
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17:29

Division 34

Ayes: 273

Noes: 354

The list of Members currently certified as eligible for a proxy vote, and of the Members nominated as their proxy, is published at the end of today’s debates.
--- Later in debate ---
17:39

Division 35

Ayes: 272

Noes: 355

The list of Members currently certified as eligible for a proxy vote, and of the Members nominated as their proxy, is published at the end of today’s debates.

Armed Forces Bill

(Limited Text - Ministerial Extracts only)

Read Full debate
Report stage & 3rd reading
Tuesday 13th July 2021

(2 years, 9 months ago)

Commons Chamber
Armed Forces Act 2021 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 13 July 2021 - (13 Jul 2021)

This text is a record of ministerial contributions to a debate held as part of the Armed Forces Act 2021 passage through Parliament.

In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.

This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here

This information is provided by Parallel Parliament and does not comprise part of the offical record

Jim Shannon Portrait Jim Shannon (Strangford) (DUP)
- Parliament Live - Hansard - - - Excerpts

It is a pleasure to speak in this debate and hear such welcome contributions from the right hon. and hon. Members who have spoken so far. This Bill is something that is close to my heart, as a former Ulster Defence Regiment and Territorial Army soldier, and as an elected representative who has seen the way in which some of our troops have fared after service. I will make some comments in relation to the regular force: the hon. Member for Caithness, Sutherland and Easter Ross (Jamie Stone) referred to recruitment issues, which I also mentioned last time we spoke on this topic in the House, and I want to reiterate some of those comments if I can.

I believe that we must improve recruitment and retention. Each time numbers are cut, morale is dealt a blow, recruiting drops, and the three services become undermanned, which has a detrimental effect on those who are serving and those who maybe would wish to. I make these comments gracefully and try to do so in a respectful fashion, but we have two aircraft carriers, yet we only have crew for one. We have fewer tanks than most third-world countries, and we have a few highly complex fighter jets, but little ability to conduct expeditionary air warfare other than a reliance on Cyprus as a base. Future investment must be about growing the capability and capacity of the regular force. I know that the Minister is keen to do that, and we are keen that he should be supported in doing so, from both the Opposition side of the House and his own side.

If our regular forces can no longer punch at or above our new weight as an independent post-Brexit global player, I believe that we must reinvest in soft power. The last debate we had, which was on overseas aid, was about soft power: how we use it better to influence and help countries in which the potential for terrorism and extremism abounds, and how we get a reasonable level of GDP boost in those countries to ensure we can still bring some influence to bear in places where we cannot put boots on the ground, or indeed jets in the air.

When it comes to the reserve forces, I make a plea to the Minister directly: I know that he is interested in this matter and will wish to respond, but we continue to believe that Northern Ireland could make greater contributions to the whole force concept through greater opportunities in the reserve forces. Again, I urge the Minister to review the current reserve forces footprint in Northern Ireland, and consider expanding it to recruit a greater number of reservists from a wider footprint.

For example, Enniskillen uniquely gives its name to two very fine British Army regiments, the Inniskilling Dragoons and the Royal Inniskilling Fusiliers, both formed in the Williamite wars of the 1690s to defend the town against Jacobite rebels. Today, that loyal town is only being asked to provide a few medics and an infantry company. Northern Ireland is able to, and wants to, provide more reservists, so how can we make that happen? This comes back to the issue of recruitment, which the hon. Member for Caithness, Sutherland and Easter Ross referred to and which I want to speak about today, particularly in relation to Northern Ireland. May I remind the Minister, hon. and gallant Member that he is, that at the height of the cold war and in the midst of the so-called troubles there were 11 UDR battalions, two TA infantry battalions, an artillery regiment—which I belonged to as a part-time soldier—a signal regiment, an engineer regiment, logistics regiments, medical regiments, yeomanry regiments, military police and so on? Today, we are being asked for a fraction of that, yet the world is still a dangerous place. If we have the potential to recruit in Northern Ireland, we should be taking every step and every action to make sure that happens.

Very quickly, I will turn to veterans. I put on record the work of Danny Kinahan, the Northern Ireland veterans commissioner, and thank him for the impact that that post will no doubt have in due course. However, for some veterans in Northern Ireland, there is still precious little evidence of the impact of the armed forces covenant, or of other initiatives for veterans such as rail cards, guaranteed interview schemes and the veterans ID card. May I remind the Minister that this is a far cry from the desire to make the UK the best place in the world to be a veteran?

Respectfully, I make the point that Westminster can impose abortion laws and Irish language Acts from Westminster, but there is a real lack of pressure from London on Belfast when it comes to supporting our veterans. I would love to see more emphasis put on that if at all possible. I remain concerned about the scrutiny of the delivery outputs that flow from the armed forces covenant, so can the Minister be sure that all the promised action is being taken so that veterans are being housed, getting treatment with the priority they need, getting access to jobs and training, being supported by local and regional councils, and getting the recognition they are due?

Who are the eyes and ears at local and regional levels that are ensuring that all that can be done is being done? I urge the Minister to increase the assistance and get on with empowering the Veterans Advisory and Pensions Committees in order that they can fulfil their remit of ensuring that the armed forces covenant is being delivered across the whole of the United Kingdom of Great Britain and Northern Ireland, in its entirety.

I appreciate the sentiment behind new clause 4, to which the right hon. Member for North Durham (Mr Jones) referred, regarding the duty of care on mental health. That is vital, and never has it been more important. I work closely with a charity in Northern Ireland called Beyond the Battlefield, which provides counselling, as well as practical aid for veterans. It has recently leased a property in my constituency, in the village of Portavogie, which provides en suite accommodation for 10 people. The intention is to use it as a respite facility for veterans from throughout the Province. It will be the first of its kind in the whole of the Province, and after the closure of the Royal British Legion facility in Portrush we will have dedicated facilities available for our veterans.

This venue will provide space for individual reflection, as well as having communal rooms and therapy areas. The charity has fundraised and done so much work, and there is much more to be done with this facility—it has been targeted by vandals in the past, so there is some refurbishment work to do. I know that the Minister will be keen to hear more, and I will be anxious to see how the MOD can sow into this facility that is designed to pick up the slack left by the Department. On behalf of Beyond the Battlefield, I extend an invitation to the Minister to visit when the refurbishment is completed, as we would be very pleased to have him over for that purpose. If he is able to do so at a time convenient for him and us, we will do that.

Another clause that has struck me is that on the armed forces federation. The hon. Member for West Dunbartonshire (Martin Docherty-Hughes) has referred to this regularly. It is one of the subjects he never misses on, and he did not miss on it today either. There is a principle at stake there that should be considered. I work with a wonderful charity called SSAFA—the armed forces charity, the Soldiers, Sailors, Airmen and Families Association. It is probably known to everybody in this House, and it is often called on to step into scenarios that an armed forces federation would be designed to step into. If this Bill is aimed at addressing the years of neglect, this is an important aspect of it. I also commend my hon. Friend the Member for Belfast East (Gavin Robinson) for the work he has put into this Armed Forces Bill, and I thank him for it. Our party will be supporting amendments 1 and 2 if they are put to a vote.

I conclude by saying that the Bill has many pros and many cons, one of which is that soldiers who served in Northern Ireland are treated differently. That must be made right. I know the Minister wishes to do that, and it would be good to hear in his response that that will be the case. I anxiously await the Government holding to their word to ensure that every service personnel member, regardless of where they served, deserves the same treatment. I still believe we miss out on this. This Bill is to be welcomed, but improvements can and must still happen. I look forward to hearing from the Government, and from the Minister in particular, whom I look upon as a friend, as to whether these new clauses and amendments which would enhance the Bill will be acceptable.

Leo Docherty Portrait The Minister for Defence People and Veterans (Leo Docherty)
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I thank all right hon. and hon. Members for their contributions, particularly the hon. Member for Barnsley East (Stephanie Peacock); I am grateful for her sincere and constructive tone. I think the whole House is united in our desire to support our armed forces, and I am confident that the Bill delivers for our armed forces. It renews the Armed Forces Act 2006, it improves the service justice system, and it delivers on the Government’s commitment to further enshrine the armed forces covenant in law.

I turn first to new clause 1. As I said in Committee, the Government take very seriously our duty of care for service personnel and veterans under investigation. This amendment was debated at length in the other place during the passage of the Overseas Operations (Service Personnel and Veterans) Act 2021. Our servicepeople are entitled to receive comprehensive legal support, and a full range of welfare and mental health support is offered to all our people, as laid out in the Defence Secretary’s written ministerial statement of 13 April 2021. We have made clear our intent to provide a gold standard of care, and we will not deviate from that.

We resist the new clause because a one-size-fits-all approach is not appropriate. People have different needs, and we want to ensure bespoke provision—the right support at the right time. Furthermore, the difficulties of drafting such a duty of care would inevitably mean the involvement of the courts and additional litigation.

Turning to new clause 2, I am pleased to remind the House that the Government accept entirely that the historical policy prohibiting homosexuality in the armed forces was absolutely wrong, and there was historic injustice suffered by members of the LGBT+ community as a consequence. We are committed entirely to addressing that with urgency and humility, and our priority now is to understand the full impact of the pre-millennium ban. We are committed to finding an appropriate mechanism to address this injustice, but we resist the new clause because it may complicate or constrain the work already under way.

Kevan Jones Portrait Mr Kevan Jones
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As I said in my contribution, I do not doubt the hon. Gentleman’s commitment to righting this wrong, but he is going to come up against a lot of resistance from his Department when it comes to issues around compensation in terms of pensions and everything else. I just stress that he must push back, and push back hard.

Leo Docherty Portrait Leo Docherty
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I am grateful for the right hon. Gentleman’s encouragement. I hear it, and I reassure him that we will address this matter with absolute resolve. It will be at the heart of the veterans strategy, which I will announce this winter.

Turning to new clause 3, let me reassure the House that the interests of armed forces personnel are already represented and protected through a range of mechanisms, including the Service Complaints Ombudsman, the pay review bodies, the annual continuous attitude survey, and more than 50 diversity networks operating within Defence at various levels, run mostly by volunteer members, with senior officer advocates and champions—and, lastly but most importantly, there is the chain of command. We therefore resist the new clause.

I turn to new clause 4. In June 2021, the annual UK armed forces mental health bulletin showed that the overall rate of mental ill health is actually lower among service personnel than in the general population, but of course we are never complacent. We are constantly striving to improve our mental healthcare support for service personnel and, indeed, veterans. We resist the new clause because it lacks utility and would merely add to the administrative burden of those seeking to support our service personnel. Indeed, a duty on the Secretary of State to report annually on healthcare provision already exists as part of the armed forces covenant.

Amendment 1 would give the Attorney General the role of deciding whether the most serious crimes are prosecuted in the service courts. We have already considered this issue carefully as a recommendation of the Lyons review, but we believe that enhancing the prosecutors protocol is the most effective way to improve decisions on concurrent jurisdiction, because it allows decisions to be made early on, by independent prosecutors who have close working relationships with civilian and service police.

If the AG had to give consent, the process would be slower. The AG would effectively be asked to endorse decisions that had been made very early in an investigation, and it is hard to see what the AG would be adding. However, if the AG were to disagree with those earlier decisions and veto the trying of a case in the service justice system, there would be no easy way to transfer that case to the civilian system. That may have the undesired effect of making it difficult or impossible to prosecute the case in either system.

For that reason, we resist the amendment. We have a more pragmatic approach, because we want a workable, transparent and rigorous process for decisions on jurisdiction. We want cases to be heard in the right system, and we are confident that the service justice system is capable of dealing with all offences, whatever their seriousness and wherever they occur. We must bear in mind that the civilian prosecutor will always have the final say.

Turning to amendments 2 to 8, the covenant duty covers public bodies delivering healthcare, housing and education, because those are the key areas of concern for our armed forces community. We have ensured that the legislation can adapt to the needs of the armed forces community in future by making provision to allow the Government to widen the scope of the covenant by way of affirmative regulations. The Bill is evergreen, and if we need to expand it in future, we will.

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Jim Shannon Portrait Jim Shannon
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I asked specifically about recruitment in Northern Ireland and what we could do with reserve forces. Can I have an assurance that recruitment is necessary in Northern Ireland to fill the gap for soldiers who can help the British Army? If we can do it in Northern Ireland, let us make it happen.

Leo Docherty Portrait Leo Docherty
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I am happy to give the hon. Gentleman that reassurance and put that on the record.

I thank the team of magnificently resolute and tenacious MOD civil servants in the Bill team, including Jayne Scheier, John Shivas, Caron Tassel, Tim Payne and Ben Bridge. I call on the House to reject the amendments. The armed forces always stand up for us; we must stand up for the armed forces, and I commend the Bill to the House.

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17:17

Division 50

Ayes: 272

Noes: 361

The list of Members currently certified as eligible for a proxy vote, and of the Members nominated as their proxy, is published at the end of today’s debates.
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17:27

Division 51

Ayes: 274

Noes: 360

The list of Members currently certified as eligible for a proxy vote, and of the Members nominated as their proxy, is published at the end of today’s debates.
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17:34

Division 52

Ayes: 272

Noes: 358

The list of Members currently certified as eligible for a proxy vote, and of the Members nominated as their proxy, is published at the end of today’s debates.
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Leo Docherty Portrait Leo Docherty
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I beg to move, That the Bill be now read the Third time.

I want to reiterate my thanks to all hon. and right hon. Members for their thoughtful and constructive contributions today. I have been honoured to lead on this Bill that further enshrines the armed forces covenant into law. Ultimately, the Bill is for the armed forces, its serving personnel, veterans and their families, and I pay tribute to them for their bravery, stoicism and unflinching professionalism. We owe them an enormous debt of gratitude and this Bill is for them.

Our armed forces stand up for us and we must always stand up for them, and I commend this Bill to the House.

Armed Forces Bill

(Limited Text - Ministerial Extracts only)

Read Full debate
2nd reading
Tuesday 7th September 2021

(2 years, 7 months ago)

Lords Chamber
Armed Forces Act 2021 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 13 July 2021 - (13 Jul 2021)

This text is a record of ministerial contributions to a debate held as part of the Armed Forces Act 2021 passage through Parliament.

In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.

This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here

This information is provided by Parallel Parliament and does not comprise part of the offical record

Moved by
Baroness Goldie Portrait Baroness Goldie
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That the Bill be now read a second time.

Baroness Goldie Portrait The Minister of State, Ministry of Defence (Baroness Goldie) (Con)
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My Lords, it is a privilege to be speaking to the Armed Forces Bill this afternoon. Without this Bill, the Armed Forces Act 2006—the legislation that maintains the Armed Forces as a disciplined body—could not continue in force beyond the end of this year.

This Bill is for the Armed Forces. We have the best Armed Forces in the world; their professionalism and dignity has recently and vividly been displayed to us with the evacuation of over 14,500 people from Kabul airport to the safety of the UK. That draw-down operation was no easy undertaking, with the ever-present risk of attack and the emotionally charged, hostile environment that our service personnel found themselves operating within. It is their professionalism, integrity and resolute fortitude to get the job done that shone through.

The Government acknowledge their responsibility to the new arrivals from Afghanistan; as such, Operation Warm Welcome is fully under way to support and provide the necessary assistance where required. We owe an immense debt to those arrivals, and this Government are determined that we give them and their families the support they need to rebuild their lives here in the UK.

I acknowledge that many of us have questions about what has happened in Afghanistan. As the Prime Minister said,

“the events in Afghanistan have unfolded faster, and the collapse has been faster, than I think even the Taliban themselves predicted.”—[Official Report, Commons, 18/8/21; col. 1254.]

As the Defence Secretary said, “the die was cast” when President Trump struck a deal with the Taliban, paving the way for our exit. However, I reaffirm to your Lordships that we will now use every diplomatic and humanitarian lever at our disposal to restore stability to Afghanistan, and the Prime Minister has been clear that that will require a concerted and co-ordinated effort from the international community. None the less, this must not overshadow what our brave service personnel have achieved in Afghanistan, nor indeed their tireless efforts domestically at the forefront of the battle against the global pandemic. Therefore, I ask your Lordships to join me in commending and saluting their manifold accomplishments, and we can do that in tangible form by supporting this Bill.

This leads me to the integrated review. During the passage of the Bill in the other place, questions were raised over prospective reductions in service strength and, in turn, whether such reductions have negatively impacted our operational ability; for example, in Afghanistan. The integrated review is about the future; it is not about the past, and our military operations in Afghanistan are now at a close. Furthermore, it would be disingenuous to suggest that any variations in the overall Armed Forces strength figures could be directly and meaningfully linked to delivery of specific outputs. It is simplistic to say that there is a direct correlation between overall Armed Forces strength figures and capabilities. I reassure your Lordships that the UK Armed Forces continue to meet all their operational commitments, and we expect them to continue to do so, and our capability will be designed to meet a new age of threat.

Finally, before I turn to the Bill, I wish to say a few words about the recently published report from the House of Commons Defence Committee on women in the Armed Forces. I extend my gratitude to the members of that committee for their well-balanced and thoughtful report. I reassure your Lordships that we are giving the report serious consideration and the Ministry of Defence will publish its response soon.

Your Lordships will also be anticipating the outcome of the review led by Sir Richard Henriques, which was announced last year. We are very grateful for the comprehensive work Sir Richard has been undertaking. I expect to be able to update your Lordships in early course, and certainly in time for your Lordships to consider the matter during the passage of this Bill.

Without further ado, I now turn to the Bill. There is an Armed Forces Bill every five years to renew the legislation that governs the Armed Forces. This is currently the Armed Forces Act 2006, which contains nearly all the provisions for the existence of a system for the Armed Forces of command, discipline and justice. The requirement for renewal of the 2006 Act is based on the assertion in the Bill of Rights 1688 that the Army—and now, by extension, the Royal Air Force and the Royal Navy—may not be maintained within the kingdom without the consent of Parliament.

I wish to be quite clear that this Bill must pass to renew the 2006 Act by the end of this year, because current legislation does not provide for the 2006 Act to be extended beyond 2021. Your Lordships will understand that if we fail to effect that renewal, there would be serious consequences. For example, if the Act expired, members of the Armed Forces would still owe allegiance to Her Majesty and would have a legal duty to obey lawful commands, but there would be no penalties for disobeying orders or for other types of indiscipline. Service offences would cease to exist, commanding officers and service police would lose their statutory powers to investigate offences and enforce discipline, and the service courts would no longer function.

Discipline in every sense is fundamental to and underpins the existence of our Armed Forces. Indeed, it is the reason for their success in the discharge of their remarkable range of duties. That is why renewal of the 2006 Act is so important, and renewal is the primary purpose of this Bill. That is what Clause 1 provides for: the continuation of the 2006 Act for a year from the date on which this Bill receives Royal Assent. It also provides for renewal thereafter by Order in Council, for up to a year at a time, until the end of 2026. The Bill also provides us with a regular opportunity to update legislation for the Armed Forces.

I turn to service courts, summary hearings and jurisdiction. In 2017, in preparation for this Bill, the MoD commissioned an independent review of the service justice system to ensure that it continues to be transparent, fair and efficient. The review, led by His Honour Shaun Lyons, made a significant number of recommendations for improvement and this Bill deals with the small number that need primary legislation to be implemented, including changes to the constitution of the court martial and a power to correct mistakes, which is called a “slip rule”. Clause 7 deals with the issue of concurrent jurisdiction. For offences committed by service personnel in the UK, justice can be delivered through the civilian criminal justice system or the service justice system.

Importantly, the service justice system review found that the service justice system was fair and robust. But it also proposed that some of the most serious offences should not be prosecuted at court martial when they are committed by service personnel in the UK, except where the consent of the Attorney-General is given. To be clear, the review was not saying that the service justice system should stop dealing with certain categories of cases which occur in the UK. Rather, it was saying that, when such cases come up, controls should be introduced if they are to be tried in the service justice system. Meanwhile, jurisdiction would remain to deal with such cases overseas. I reassure your Lordships that the Government considered this recommendation fully and carefully and concluded that concurrency of jurisdiction must remain.

We have highly skilled, capable and effective service police, who have equivalent serious crime training to civilian police. They also follow procedures and processes used by civilian police, and, so far as investigations are concerned, are independent from the chain of command. Indeed, a process audit which was part of the Lyons review found that the service police have the necessary training, skills and experience to investigate any crime.

The Service Prosecuting Authority is headed up by a civilian, Jonathan Rees QC, who is a leading criminal silk and eminently qualified to lead the Service Prosecution Authority in prosecuting these and all types of offences. When he took up the position of director, he seconded, to lead on rape for the SPA, the former head of the Thames and Chiltern CPS rape and serious sexual offences unit, with all the experience and knowledge that brings. The judges who sit in the court martial are also civilians who frequently sit in the Crown Court. So we are confident that the service justice system is capable of dealing with all offences, whatever their seriousness and wherever they occur. But we agree that the current non-statutory protocols and guidance around jurisdiction must be clearer. That is why Clause 7 places a duty on the heads of the service and civilian prosecutors in England and Wales, Scotland and Northern Ireland to agree protocols regarding the exercise of concurrent jurisdiction.

We believe that such decisions on jurisdiction are best left to the independent service justice and UK civilian prosecutors using guidance agreed between them, but the Bill ensures that the civilian prosecutors will have the final say should a disagreement on jurisdiction between the prosecutors remain unresolved. I want to be clear here: this is not about seeking to direct more cases into the service justice system and away from the civilian criminal justice system or vice versa. It is about guaranteeing that both systems can handle all offending and are equally equipped to deliver justice for victims.

I turn to the Armed Forces covenant, which the Bill takes important steps to strengthen. Clause 8 imposes a duty to have due regard to the three principles of the covenant on certain public bodies across the UK. It is perhaps helpful to remind your Lordships of the three principles of the Armed Forces covenant: first, the unique obligations of, and sacrifices made by, the Armed Forces; secondly, the principle that it is desirable to remove disadvantages arising for servicepeople from membership, or former membership, of the Armed Forces; and, thirdly, the principle that special provision for servicepeople may be justified by the effects on such people of membership, or former membership, of the Armed Forces.

Clause 8 inserts new sections into the 2006 Act to impose the duty in each of the four nations of the United Kingdom. The new duty will apply where particular types of public bodies or persons are exercising certain of their public functions in key areas of housing, education, and healthcare, which are vital to the day-to-day lives of our Armed Forces community.

In the area of housing, the duty covers bodies that are responsible for developing housing allocation policy for social housing, homelessness policy and the administration of disabled facilities grants, which can be vital for injured veterans.

In education, we know that our service families sometimes face challenges, due to their service-related lifestyle, in accessing suitable school places for their children. Specific challenges may present themselves in relation to service children with special educational needs or disabilities—as it is described in England—when attempting to maintain continuity of provision to meet their needs. We know that some service children have specific well-being needs and this duty will target those who are responsible for this, ensuring that they understand and consider the specific needs of our community’s children.

In healthcare, much has already been achieved, but service families and veterans may still experience disadvantages, often caused by their mobility or healthcare requirements resulting from military service. This duty will apply to all bodies that are responsible for commissioning and delivering healthcare services across the UK.

At this point it would be useful to remind your Lordships that health, education and housing are all matters for which the devolved Administrations are responsible, and they are administered as best suits those nations. However, the Government have been delighted with the proactive support we have had from colleagues in the home nations for the covenant as a whole and for this legislation in particular.

Guidance will be crucial to ensure that bodies subject to the new duty understand the principles of the covenant and the ways in which members of our Armed Forces community can suffer disadvantage arising from service. Clause 8 provides that the Secretary of State may issue guidance in relation to the duties imposed to which those subject to the duty must have regard when exercising a relevant function, and he must consult with the respective devolved authorities where this is relevant, and other appropriate stakeholders, before issuing the guidance.

The Bill also provides for the covenant duty to be extended in the future. The Secretary of State may, by regulations, widen the scope of the new duty to include additional functions and bodies in other areas. However, before doing so, he would be required to consult the relevant devolved authorities and other appropriate stakeholders, and any amendment—this is important—would have to be made by way of affirmative regulations, requiring the express consent of Parliament.

Clause 9 deals with a new continuous service commitment that will enable members of a Reserve Force to volunteer to undertake a period of full-time or part-time service. This offers a more flexible suite of engagement options for reservists, incorporating seamless movement between full and part-time service under the Reserve Forces Act 1996, and empowers defence with greater freedoms to introduce further modernising changes to reserves commitment types.

Clause 10 creates a power to change the minimum time limit for submitting an appeal against a first-level decision in a service complaint from six weeks to two weeks. It also provides the ability to restrict the grounds on which someone can appeal. There are good reasons to make these changes.

Currently, the 2006 Act provides for a minimum time limit for submitting appeals of six weeks, and this is the time limit set in regulations. However, we believe that in most circumstances two weeks is adequate for someone to submit an appeal. Not all service personnel are engaged in the same type of work; many are engaged in roles such as working in offices, where a two-week deadline would be appropriate. This approach is in keeping with other public sector complaints systems. However, of course, we recognise that there are circumstances in which it would not be appropriate to restrict the time to appeal to two weeks, such as for those deployed on operational duties or those in poor health. In such cases, an extension can be sought.

We also need to ensure that people have good reason to appeal. Currently a complainant need only say that they are unhappy with the decision. We believe that appeals should be permitted only where there were procedural errors or where new evidence is provided that may change the outcome of the original decision. Where a complainant’s request to move a service complaint to the appeals stage has been deemed inadmissible, they are entitled to ask for a review of that decision by the Service Complaints Ombudsman.

Clause 10 and Schedule 3 are part of wider reforms to support service personnel through the complaints system, to increase efficiency and to reduce delay within the service complaints process. Other reforms, which do not require primary legislation, will provide guidance agreed with the Service Complaints Ombudsman on the criteria and grounds for appeal, early access to an assisting officer, mandated offers of informal resolution, easy-read guides for complainants and respondents, and improvements to forms for lodging complaints.

We have to ensure that we modernise and reduce delay in the service complaints system, creating where we can a consistent experience across defence, and following best practice from other parts of the public sector. It is crucial that our service personnel feel confident that complaining will not adversely impact on them. Therefore, complaints must be dealt with appropriately and in a timely fashion to build that trust further.

Clause 11 amends the 2006 Act to create a new regime for complaints against the service police and related matters. It does so by establishing the service police complaints commissioner and enabling the creation of a regime for complaints, conduct matters and death or serious injury matters which is modelled on the regime for the civilian police in England and Wales. The clause also contains powers that will enable provision to be made in relation to both super-complaints and whistleblowing, which will be modelled on the regime for the civilian police in England and Wales.

The new independent service police complaints commissioner will oversee the new complaints regime and will carry out investigations into the most serious allegations against the service police. The commissioner will also have overall responsibility for securing the maintenance of suitable arrangements for making complaints and dealing with other serious matters. The creation of this new oversight regime brings the service police into line with their civilian counterparts.

The Bill also addresses sentencing and rehabilitation. It would enable the court martial and the Service Civilian Court to disqualify offenders from driving in the UK and deprivation orders to be made in the service justice system. The Bill also makes some minor technical adjustments to the rehabilitation periods for reprimands.

Finally, among the main provisions in the Bill are steps to right the wrongs of the past which ensure that posthumous pardons for those who were convicted of historic service offences relating to their sexuality also apply fully to convictions under older legislation governing the Army and the marines.

This Armed Forces Bill makes important changes to the service justice system, bringing forward the sound recommendations of the Lyons review that require primary legislation. The Bill ensures that our service justice system remains fit for purpose, and, importantly, it will strengthen the legislative basis of the Armed Forces covenant to help ensure that those who serve and have served, and their families, are treated with fairness and respect in the communities they serve.

I look forward to the detailed scrutiny which we shall give the Bill in Committee and I commend it to the House.

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Baroness Goldie Portrait Baroness Goldie (Con)
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My Lords, I begin by quoting my immediate predecessor, the noble Lord, Lord Tunnicliffe, who said that this has been an excellent debate. He is absolutely correct—we have heard many thought-provoking contributions. What has left a lasting impression on me from this afternoon’s proceedings is the many impassioned speeches made on behalf of our Armed Forces. I thank your Lordships for that warmth and affection, and for the cross-party support of the noble Lord, Lord Coaker, who opened for the Opposition, of the noble Baroness, Lady Smith of Newnham, and from the Cross Benches. That attitude and those contributions reflect the deep and abiding affection and support that our service men and women, veterans and the broader service community enjoy in this House and beyond.

Of course, as the noble Lord, Lord Bilimoria, said, we should also remember that a tremendous contribution has been made over decades by our Commonwealth forces and veterans. Bringing it right up to date, my noble friend Lord Trenchard rightly reminded us of the role of our reservists in Operation Rescript, so there is much of which we can be very proud and certainly much for which we are very grateful. In turn, this mirrors the desire of your Lordships to make certain that this Bill can deliver measures that have a profound and far-reaching benefit to those who guard and shield the nation.

As the noble Lord, Lord Tunnicliffe, said, support for this Bill is strong and widespread. I appreciate the interest shown and the questions about certain measures and wider issues. I will address as many of your Lordships’ concerns as I can in the time available.

I was interested in the points made by the noble Baroness, Lady Garden of Frognal. One was perhaps predictable, because her assiduous work on behalf of war widows is, rightly, widely respected and acknowledged. Her plea for war widows, for whom she so tirelessly advocates, is heard. I can say that there is a desire to find a solution and all avenues are currently being explored; I use the word “currently” advisedly. I hope it will be possible to report further on that in the not- too-distant future.

The noble Baroness, Lady Garden of Frognal, also asked about overturning decisions of the Service Complaints Ombudsman. That ombudsman is of course independent but, as with other ombudsmen and ombudswomen, their recommendations are taken seriously but are not in themselves binding. However, I was interested to hear the noble Baroness’s contribution.

I also want to deal with one or two important points made by the noble Lord, Lord Dannatt, which I noted down. In character, the noble Lord raised a multiplicity of thought-provoking and important issues, and I will look at Hansard and endeavour to respond to him. He referred to the Gurkha hunger strike, which I am pleased to say has now come to an end. My colleague the Minister for Defence People and Veterans, and the Defence Secretary, will meet Gurkha welfare groups shortly to discuss all welfare concerns. I know that the noble Lord, Lord Bilimoria, was also concerned about that.

I was not surprised to find that a lot of the discussion this afternoon concerned the covenant. There was widespread acknowledgement that placing it in legislation is good news; indeed, my noble and learned friend Lord Mackay of Clashfern rightly identified the important message that this sends to our Armed Forces, as did the noble Lord, Lord Dannatt. However, I certainly noted the concerns articulated by a number of noble Lords, not least the noble Lord, Lord Coaker, and the noble Baroness, Lady Smith.

In response to the specific point raised by the noble Lord, Lord Coaker, my noble friend Lord Astor of Hever and my noble and learned friend Lord Mackay of Clashfern on why the legislation will not apply to central government, I would say that government is held to account by Parliament and the purpose of the covenant duty is to raise awareness among providers of these public services of how service life can disadvantage the Armed Forces community in accessing these key public services. The MoD is fully aware of issues that impact the Armed Forces community, and we work with other departments and organisations across not just government but the United Kingdom to raise awareness, to access concerns—as best we can—and to help facilitate the resolution of problems. The MoD and central government more widely are already held to account in the delivery of the covenant by the statutory requirement to report progress against the covenant annually to Parliament. That will remain a legal obligation. I realise that that will not satisfy all noble Lords, but I shall anticipate with interest how your Lordships who are concerned about the omission of Governments—indeed, I think it was my noble friend Lord Astor who specifically mentioned the Scottish Government—explore and broaden out these genuine issues.

As in the other place, a number of noble Lords have argued that the scope of duty for the covenant is too narrow and that it should be broadened beyond housing, healthcare and education. We have chosen the scope of the duty carefully and in consultation with the Armed Forces community because we know that these issues will make the greatest improvements to family life. Indeed, I am grateful to my noble friend Lord Lancaster for recognising that. Significantly, of course, the Bill contains provisions for us to expand the scope into other areas through secondary legislation at a later date. I was asked for an assurance that this will be reviewed regularly. I am happy to give that assurance: the scope of the provision will be reviewed regularly. This is not the end of our legislative effort; it is the beginning.

A number of noble Lords, not least the noble Lord, Lord Coaker, the noble Baroness, Lady Smith, and a number of others, claim that the new legal duty is not strong enough. They are concerned that creating a legal duty “to pay due regard” to the principles does not go far enough. I know there has been talk in the other place from the Opposition Benches of needing to set “measurable national standards”. I think our challenge throughout this has been one of striking a balance. On the one hand we wanted to ensure delivery against the covenant principles, but on the other we wanted to avoid the sort of prescriptive approach that puts bureaucratic barriers in the way of practical delivery. Your Lordships will understand that when we are dealing with constituted local authorities which are entitled to a degree of government autonomy to make their own democratic decisions about what they wish to do, and with devolved Governments who have legislative competence to deal with delivery of these policy areas, we have to be very careful that we are not setting down a prescriptive approach which could be provocative, inimical and, in that respect, fairly unhelpful. I assure your Lordships that public bodies were consulted extensively, and our decision also reflects the diverse nature of public services across the country, but the Government will monitor responses and we are obliged, as I said earlier, to submit an annual report on the covenant to Parliament.

Predictably, the issue of the service justice system invited significant and extensive comment. I was pleased to hear noble Lords refer to the important reviews of the service justice system. I, too, have considered the reviews of His Honour Shaun Lyons and Professor Sir Jon Murphy, and it is their recommendations that underpin the improvements to the service justice system that we are taking forward in the Bill.

The noble Lord, Lord Thomas of Gresford, with his considerable experience in this field, raised this issue. He sought a further explanation about why the Government were adopting the particular course they have chosen. That was, to some extent, echoed by the noble and learned Lord, Lord Thomas of Cwmgiedd. As I said at the beginning of this debate, while we accept the need to improve the decision-making process in relation to concurrent jurisdiction, we do not believe that the introduction of an Attorney-General consent function is the best way to achieve it, because Attorney-General consent arises at the end of the investigatory process, when key decisions on jurisdiction have already been made. I find it hard to see what the attorney adds if he or she is endorsing decisions already made. If the attorney were to disagree with those earlier decisions and veto a case being tried in the service justice system, there is no easy way to transfer that case to the civilian system. This could have the undesired effect of making it difficult or impossible to prosecute the case in either system; I think we all need to reflect upon this. The Government believe they have opted for a more pragmatic approach. As I said earlier, Clause 7 ensures that decisions on jurisdiction are left to the independent service justice and UK civilian prosecutors using guidance they have agreed between themselves. I do not consider that politicians should meddle in that. It is the case that the civilian prosecutors will have the final say as to within which jurisdiction the matter will be tried if there were disagreements.

The noble and learned Lord, Lord Thomas of Cwmgiedd, raised three significant points to which I listened with interest: first, should Parliament approve the prosecutor’s protocol and, secondly, in the choice of jurisdiction, should there be a right of appeal? He also suggested that it must be an error that this applies only in the United Kingdom. The Government seek to go with the grain of existing non-statutory arrangements. There is an existing non-statutory protocol between service and civilian prosecutors, and putting it on a statutory basis will bring clarity and transparency. On the specific points the noble and learned Lord raised, I suggest that there is no need for parliamentary approval for this type of protocol because this follows the precedent for the statutory Code for Crown Prosecutors, and that is not subject to that type of approval. On the second point, the Government see these as decisions for prosecutors. They are not subject to appeal at present; we are not looking to change that. On the third point, no, it is not a drafting error that it applies only to the United Kingdom. The purpose of this provision is to guide how civilian and service authorities within the United Kingdom manage these matters. Overseas matters are different—not least that they are often governed by a status of forces agreement.

I have endeavoured to explain why the Government have not just pulled this out of the air. Careful thought has been given to these proposals. I think it is worth reminding ourselves that the current situation was established by the Armed Forces Act 2006; that is the legislation that Parliament approved back then. I appreciate that that was under a Government of a different hue but, none the less, Parliament approved it and established jurisdictional concurrency by allowing murder, manslaughter and rape in the UK to be tried as service offences. It is that legal principle that the Bill supports, and that is why it is drafted as it is.

A number of your Lordships raised the comparative statistics on conviction rates between the service justice system and the civilian criminal justice system. I have to say—and I have looked at this—that I do not think it is possible to make a meaningful statistical or data comparison between the service and civilian justice systems. The service justice system review makes it clear that it is not possible to make accurate comparisons of outcomes in the systems as the relatively low number of cases and the small database in the service justice system mean that variances have a disproportionate effect on percentage values, which can subsequently lead to false conclusions.

A number of your Lordships referred to the House of Commons Select Committee report, which the MoD is currently considering; we shall publish our response shortly. On some of the criticisms which were levelled by your Lordships about the efficacy of the service justice system dealing with rape and serious sexual offences, we are confident that the service justice system provides an effective and fair system of justice for the men and women in the UK’s Armed Forces. It is interesting to note that the forces themselves do not report a lack of confidence in the system. The latest continuous attitude survey showed that 64% of the service population thought that the service justice system was fair, which compares with around 69% of the civilian population who think that the criminal justice system is fair. I am merely offering to your Lordships some basis for the approach which the Government have chosen.

A number of your Lordships raised the very important matter of mental health and mental health support: the noble Lord, Lord Coaker, and the noble Baroness, Lady Brinton, spoke movingly about this, and the noble Lord, Lord Hay of Ballyore, referred to it, as did my noble friend Lord Balfe. It is correct that as our service personnel return home from testing operations, there is little doubt that in future years, sadly, an increasing number of veterans may suffer from mental health issues.

The MoD is committed to the mental health and well-being of our Armed Forces personnel and recognises that service life can cause stress. All Armed Forces personnel are supported by dedicated medical services, including mental health support. The MoD works with the single services, the Defence Medical Services and other stakeholders to promote mental fitness, prevent ill-health and try to reduce stigma. A lot of work has been done in that respect, of which I think many of your Lordships are aware.

I emphasise that an online mental health fundamentals course is available to all Armed Forces personnel, and since 2021 an annual mental health briefing is mandatory for all Armed Forces personnel. The MoD provides a 24-hour mental health helpline for Armed Forces personnel and their families, delivered by Combat Stress. That has been one of the most important developments in recent years. Togetherall allows Armed Forces personnel access to its 24-hour staffed digital forum and the Samaritans delivers bespoke workplace training and a peer support pocket guide providing guidance on how to talk to and support colleagues struggling to cope with mental health.

I think it was the noble Baroness, Lady Brinton, who sought information about resource. From the information I have available, in 2020-2021, NHS England provided £16.5 million for veteran-specific mental health services, which increased to £17.8 million for 2021-22. In addition, the Government are also accelerating a new NHS England high-intensity mental health service for veterans who have acute mental health needs and are in crisis.

I refer to yesterday’s announcement that additional funding will be allocated to a range of projects that will increase capacity in mental health charities. There will be a £5 million boost to help increase the user-friendliness and accessibility of services and better signposting of veterans to the range of services available. I hope that that reassures your Lordships that this is an area in which we are determined to do our very best and that we endeavour to support our veterans in every way we can.

In the time remaining I will address specific points that were raised. The noble and learned Lord, Lord Morris of Aberavon, is not with us. He explained to me that an urgent domestic matter has commanded his attention, requiring him to leave early, and I thank him for his courtesy. He raised important points, and, although he is not here, I will address them because they concern the courts martial.

His honour Shaun Lyons in the service justice system review concluded that there remained the need for a separate service justice system. The court martial system largely follows the Crown Court procedure, and the Bill takes the court martial system closer to that civilian system. While it is true that the Bill retains the possibility of 2:1 majorities, the intention is that three-member panels will deal only with less serious offending, and serious offending will be dealt with by six-member panels. His honour Shaun Lyons considered but rejected the possibility of voting being announced; voting is not currently published.

My noble friend Lord Lancaster raised the fact that the Armed Forces Act 2006 no longer applies to Gibraltar. I am aware that this is an issue which my noble friend dealt with extensively when a Minister in the Ministry of Defence. While it is true that the 2006 Act no longer extends to Gibraltar, the Bill contains an important provision on Gibraltar. Clause 19 confirms that Gibraltar legislation can apply the Armed Forces Act 2006, which means that Gibraltar can make provision so that the Royal Gibraltar Regiment can make use of the UK service justice system.

The noble and gallant Lord, Lord Craig of Radley, raised the important and interesting issue of what I would describe as a statutory spring clean: could we make future Armed Forces Bills more straightforward, easier to read and to understand? As regards spring cleaning, that is a kind of floor-to-ceiling job with the curtains included as well, so I undertake to have a meeting with the noble and gallant Lord to discuss those issues further.

The noble Lord, Lord Dannatt, asked whether we have figures for interpreters returning to this country. During Operation Pitting, between 15 and 29 August up to 5,000 Afghan locally employed staff and families were relocated under the Afghan Relocations and Assistance Policy. Prior to Operation Pitting and between 22 June and 14 August, a further 2,000 were relocated, and in the last six weeks 7,000 locally employed staff and families were evacuated in total. These are the figures I have at the moment. Obviously, they may change on a day-to-day basis, but we have all been aware of the noble Lord’s herculean efforts to keep this matter at the forefront of the attention of government and the British public, and I pay tribute to him for those efforts.

My noble friend Lord Lancaster and the noble Lords, Lord Dannatt and Lord Bilimoria, raised the matter of visa settlement fees. We recognise that settlement fees may place a financial burden on some serving personnel wishing to remain in the UK. The Defence Secretary has met with the Home Secretary to consider how we could offer greater flexibility in the future. As was indicated, a public consultation was launched on 26 May 2021, which closed on 7 July. We are currently analysing the feedback from that consultation and we shall respond in due course.

My noble friend Lord Lexden raised the very important matter of Clause 18, and I am grateful to him for mentioning the significance of that clause. He rightly mentioned Professor Johnson and the noble Lord, Lord Cashman. I wish to use this opportunity to pay tribute to their incredible efforts to bring Clause 18 to fruition, and I think the Chamber would wish to acquiesce in these sentiments.

Finally, an interesting contribution, if slightly not in the mainstream, came from the noble Baroness, Lady Bennett of Manor Castle. She referred to “child soldiers”, which is a term that few of us in this Chamber recognise—it is certainly not one that the Armed Forces recognise. We have a very healthy cadet programme where young people, on their own admission, have marvellous opportunities and thoroughly enjoy the experience, and that seems to be a very positive initiative in this country.

The Armed Forces covenant covers those who have been in regular service. It applies to all service personnel and veterans, and a veteran is a person with at least one day’s service. On the noble Baroness’s specific question about export licences, I refer her to the Department for International Trade, because that is its responsibility.

In conclusion, I thank everyone for their valued contributions. If my memory serves well, back in February I said to this House during the debate on the Armed Forces Act (Continuation) Order that I anticipated an interesting and lively debate on this Bill. In that regard, I am certain that none of us has been disappointed. I have enjoyed the debate and found it stimulating. I look forward to the detailed scrutiny we shall give the Bill in Committee, and I commend it to the House.

Bill read a second time and committed to a Grand Committee.

Armed Forces Bill

(Limited Text - Ministerial Extracts only)

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Committee stage
Wednesday 27th October 2021

(2 years, 5 months ago)

Grand Committee
Armed Forces Act 2021 Read Hansard Text Amendment Paper: HL Bill 42-I Marshalled list for Grand Committee - (25 Oct 2021)

This text is a record of ministerial contributions to a debate held as part of the Armed Forces Act 2021 passage through Parliament.

In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.

This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here

This information is provided by Parallel Parliament and does not comprise part of the offical record

Moved by
1: Schedule 1, page 40, line 9, at end insert—
“(3A) After subsection (2) insert—“(2A) In the case of proceedings where the number of lay members would (but for this subsection) be three, a judge advocate may, in accordance with Court Martial rules, direct that the number of lay members is to be four.””Member’s explanatory statement
This amendment would allow a judge advocate to direct that a Court Martial should comprise four rather than three lay members. Court Martial rules will set out the circumstances in which such a direction may be made.
Baroness Goldie Portrait The Minister of State, Ministry of Defence (Baroness Goldie) (Con)
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My Lords, it is a great pleasure to join you in Committee this afternoon to discuss amendments to the Armed Forces Bill. Without further delay, I shall speak to group 1, which comprises government Amendments 1, 2 and 4 as well as Amendment 3, tabled by the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Thomas of Cwmgiedd, dealing with the constitution of the court martial.

Clause 2 will fix the number of lay members on a court martial board at either three or six. The amendment will give judge advocates the power to direct that a fourth lay member be sworn in to what would normally be a three-member court martial board. The court martial rules will set out the circumstances in which such directions can be made. If a four-member board loses a member, it will be able to carry on with the remaining three members and reach a verdict.

We are making this amendment because the Covid pandemic showed the need for greater flexibility in the service courts as board members were taken ill or had to self-isolate, particularly following the “pingdemic” earlier this year. This measure is a practical arrangement that seeks to future-proof the service justice system against this type of situation, or any other unforeseen circumstances that may arise in future. It will introduce flexibility to the system and ensure that more trials are effective and that victims and witnesses are not subjected to delays in the system. If we do not make the amendment, when a panel member is lost from a three-member board, the only options open to the judge advocate would be either to adjourn the proceedings until that lay member is available again or to halt the trial altogether. This would introduce an unwelcome delay to the administration of justice, which would especially affect victims and witnesses, and in some cases could actually mean that a retrial was required.

The approach that we have taken is based on the current legislation for the court martial. When a trial is likely to last more than 10 days in the UK, or five days when overseas, there is an existing arrangement whereby the judge advocate is able to direct that there should be one or two more members than the current minimum number of lay members for a trial. Where a four member-board remains in place until the end of the trial, at least three members of a board of four must agree on a finding. If it is reduced to three members, at least two out of three must agree.

We have consulted the Judge Advocate-General on this amendment, and he supports it as a means to improve service justice system efficiency and provide flexibility to deal with unexpected events in future. I hope that your Lordships agree that this is a sensible measure that will allow the court martial to continue to operate in difficult times and prevent unnecessary delay for victims and witnesses of crime.

I turn Amendment 3, which would create a statutory requirement for the judge advocate to determine the appropriate sentence alone, having consulted the military lay members of the board. This would reverse the current position whereby the military members of the board and the judge advocate together discuss and vote on an appropriate sentence.

Interestingly, the change sought by noble Lords is not something that His Honour Shaun Lyons recommended in the service justice review. The Armed Forces community is different from the civilian community and it is important that we recognise that. It is obviously the one with which we are familiar, but it is a very different environment within the Armed Forces community.

The board votes on sentence because it is best placed to fully appreciate the context of the offending, the background of the offender and the deterrent effect of any sentence on the wider service. Moreover, some sentences, such as demotion or detention for corrective training, are specific to life in the services. The board has the expertise to judge whether they might be appropriate or effective.

It is worth emphasising that members of the military are governed by a more stringent set of rules and restrictions than those of us in civilian life. These rules are designed to maintain discipline and promote operational effectiveness so that they can get the job done. Many of these additional rules and restrictions to which service personnel are subject apply regardless of whether they are on or off duty. An in-depth understanding of these rules and the context in which they apply form a key part of reaching an appropriate sentence.

To give a simple example, a civilian turning up late for work in a supermarket does not have the same impact on operational effectiveness as the same situation with a marine engineer on a nuclear deterrent submarine that is about to leave port. Members of the Armed Forces will have a broader and deeper understanding of the implications of this type of behaviour.

I reassure noble Lords that the sentencing process is already subject to stringent legal controls and oversight. The court martial is required by law to have regard to the Sentencing Council’s sentencing guidelines, which must be followed by the civilian courts. It can depart from these guidelines only if this is justified by the service context.

The Judge Advocate-General also issues guidance and sentencing for the service courts. The judge advocate makes the decision on sentence with the board, so everyone involved is fully aware of the relevant legislation and guidelines. Judge advocates also regularly sit in the Crown Court and bring that experience and expertise to the deliberations of the court martial. Further judicial oversight is provided by the Court Martial Appeal Court, made up of judges who sit in the Criminal Division of the Court of Appeal.

The current system is both legally sound and ensures that sentences take account of the service context. This amendment would not add any significant legal safeguards to those that already exist. It would move the emphasis away from the court martial being a part of a service justice system in which discipline is maintained by and for the Armed Forces and service personnel. It also diminishes the importance of the service context in sentencing and places a barrier between the service person being sentenced and those with whom they serve.

I hope I have managed to explain fully why the Government have a reservation about this amendment. I therefore urge the noble Lord to withdraw it, and I beg to move the amendment standing in my name.

Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD)
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My Lords, I thank the Minister for seeing me and my noble friend Lady Smith yesterday, when we had a full and fruitful discussion of these issues. I very much support the thrust of this Bill, in particular, bringing the service justice system up to date and having majority verdicts at the heart of it.

Sentencing is a difficult and technical business. I suspect that I am the only person in this Room who has actually seen the judge in a case in which I was appearing put on a black cap and sentence my client to death. That was in Hong Kong. He was not actually executed but it is a solemn moment. Sentencing in the old days used to follow the verdict but not anymore. In any serious case there is an adjournment for sentencing to enable the judge to consider the sentencing guidelines, the pre-sentence reports, the technicalities which he or she must say in the sentencing remarks, the statements of relatives and the public interest in the whole matter. A balancing exercise is carried out.

Importantly, the guidelines may give the recommended range of the sentence, but the judge has to consider the aggravating and mitigating features of the case, which will increase or decrease the recommended sentence in the sentencing guidelines. If I can give an illustration, because it is apposite for next Saturday when Wales play the All Blacks, in rugby, a referee, with his touch judges or assistant referees and the television match official, will discuss something that might have happened. They talk together and they have the advantage of a replay of an incident from various angles so that they can actually see what happened, which does not happen in a court. But it is the referee who takes the decision, not the people who assist him in his decision.

In the court martial system, it is the panel that takes the decision on the sentence with the judge participating and advising. It is only if the board are equally divided that the judge has the casting vote. To take another example, in the magistrates’ court it is the decision of the magistrates, as advised by the clerk, who may or may not be legally qualified. The judge advocate is not a clerk advising; he is central to a trial. He controls the proceedings. He gives directions to the board and rulings, including dismissing the charges altogether, as happened in the 3 Para case in Colchester in 2005. There is an anomaly as well: if the defendant is a civilian subject to service discipline and thereby liable to court martial, the judge advocate sentences alone.

Of course, the panel could and should advise on any particular military facet of the case, but from my experience it should not be assumed that the members of the panel have any direct front-line operational experience comparable to that of the defendant before them. They might have, but there are many units and many roles in which modern British forces are involved. Very frequently, the officers on a court martial do not have anything like the same experience as the defendant and the pressures he has been under. On the other hand, the judge, who sits regularly as judge advocate in a military court, has considerable experience of the operational conditions from the cases that come before him.

Under the current system, an officer or warrant officer is summoned to be a member of the board, probably with no or limited experience of courts martial, save for the president. He might never have been near a court or a court martial, but he becomes a judge with very considerable powers. He will be given the responsibility of determining sentence in a difficult case. That is a power that has never been given to civilian juries in the history of the common law. But it can be only history which retains this unique power for the board in courts martial. Perhaps it is a throwback to when there were no civilian professional judges, but, as I said in opening in my remarks, we have advanced so far. The civilian judge advocate is so important to the system.

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Lord Tunnicliffe Portrait Lord Tunnicliffe (Lab)
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My Lords, as we begin Committee on this important legislation, I stress to all sides that we must use this opportunity to improve the lives of, and protections and support for, personnel and their families through legislative change.

Her Majesty’s Opposition stand firmly behind our brave service personnel and their families, and we strongly believe that the law should be on their side. That is why we support the principles behind the Bill and welcome the steps to create a legal duty to implement the principles of the covenant and the key elements of the Lyons review. But we all know that there are many, both in and outside the House, who believe that the Government could and should go further. Therefore, I repeat that our main priority will be to work with other parties to improve the legislation.

Our forces communities are themselves determined that the Bill should not be a missed opportunity, so the amendments tabled by Her Majesty’s Opposition and those we are supporting, we believe, are designed in good faith to reflect the cause of personnel, their families and the organisations which represent them.

The first group of amendments, which focuses on Clause 2 and Schedule 1, concerns the constitution of the court martial and implements recommendations from the Lyons review. These include fixing the size of court martial boards at three or six, and a move to qualified majority verdicts instead of the simple majority systems currently used.

The Bill’s Select Committee stated that the

“use of the simple majority verdict had been criticised by some, including … Jeff Blackett, and Liberty, who proposed that unanimous verdicts be sought in the first instance.”

The Government have subsequently tabled Amendments 1, 2 and 4, which they say enable the court martial to remain validly constituted if a three-member board loses a lay member—for instance, due to illness or the need to isolate. The Minister has said that she is making a small adjustment to future-proof the system of three-member boards to allow for the appointment of a four-member board for longer cases.

Why are these amendments suddenly needed? How often does the Minister think that a four-member board will be appointed? What consultation process has there been for this change? Is there a large enough pool of board members to support this change? When she says that four-person boards are for longer cases, what type of cases does she mean? Will it be just about time, or some other characteristics of the case?

It was also helpful to hear the argument of the noble Lord, Lord Thomas of Gresford, behind Amendment 3; I look forward to hearing the Minister’s reply to these points. With that, and with a careful reading of Hansard, we will be considering our position on this amendment.

Baroness Goldie Portrait Baroness Goldie (Con)
- Hansard - - - Excerpts

First, I thank your Lordships for your contributions. I will start by responding to the noble Lord, Lord Tunnicliffe, who I think was principally concerned with the government amendments to which I spoke. Regarding the decision to introduce a flexibility to allow a three-member board to become a four-member board in order to keep operating, I cannot give him a list of statistics, but I can tell him that Covid brought into very sharp relief the potential fragility of the system if people sadly become infected with Covid or are required to isolate. That made it clear that we need to introduce some change to accommodate these extraordinary circumstances, which we may continue to encounter. None of us is clear when life as we once remember it may return, so I say to the noble Lord, Lord Tunnicliffe, that we regard this as a sensible introduction of a flexible measure to ensure, importantly, that justice continues to be done for victims and that they are not in the unenviable position of a case having to be dropped because the court martial is not properly constituted.

The noble Lord, Lord Tunnicliffe, inquires about what type of cases it is about and how often we expect a full-member board to sit. I suggest that the type of case is probably a matter for the court martial rules to determine. One would imagine that, in looking at the composition and constitution of a court martial, regard would be had to the type of offence being tried, the number of witnesses available and that an appropriate judgment would be made on that basis, but the court martial rules would be more specific about that aspect.

I turn to the amendment in the name of the noble Lord, Lord Thomas of Gresford, supported by the noble and learned Lord, Lord Thomas of Cwmgiedd—I hope he finds my pronunciation semi-acceptable; I was tutored by the noble Lord, Lord Thomas of Gresford, on how to deal with it. I think the points made are important. I detected a fundamental difference of opinion between me as a government Minister within the MoD and the noble and learned Lord and the noble Lord, Lord Thomas of Gresford, about the philosophical or essential character of what we are dealing with in the service justice system. I thought the noble Lord, Lord Lancaster, eloquently touched on that.

We have to remember that life for a service community and all those within it is very different from life for those of us in a civilian community. The noble Lord, Lord Thomas of Gresford, gave us an interesting analogy of the forthcoming rugby match between the All Blacks and Wales. The comparison that he attempted to draw was that the referee may consult the touch judges as to what has actually happened but the referee will ultimately make the decision. In response, I would say that the referee and the touch judges are not living in a close and mutually supportive community such as the Armed Forces community, where not only are they all living in close proximity to one another but in service they are mutually dependent on each other. The rugby players, the referee and the other officials are not dependent on each other for either disciplinary or operational effectiveness. There is a temptation to make that comparison but I do not find it completely analogous to what we are discussing within the Armed Forces.

The noble and learned Lord, Lord Thomas of Cwmgiedd, said that sentencing is complex, and I do not think anyone would dispute that. Training is needed, and in court martial appeals you have the expertise of the judges. I would respond by saying that we do have expertise; the judge advocate has expertise, and sentencing guidance is available to all on the panel. As I indicated in my preliminary remarks when addressing Amendment 3, there is a great body of expertise and information available. Where we differ is on a fundamental point, a point that noble Lord, Lord Lancaster, made well when he said that there has to be an understanding within the service community about how a punishment or a penalty is to be appropriate to what has happened. That is in the wider context of what the offence, transgression or omission actually meant to the broader community. As I pointed out in my speech, there is a world of difference between a supermarket worker turning up late and a marine engineer being late for a nuclear submarine that is just about to leave port.

The concern was raised by the noble Lord, Lord Thomas of Gresford, that in a civilian court you can adjourn for sentencing. The Judge Advocate General can also adjourn the court martial to consider sentencing if the panel needs time to get further information on the defendant, and pre-sentencing reports are used in the court martial system.

I have endeavoured to address the points raised. I have a note here saying that apparently the noble Lord, Lord Tunnicliffe, asked who we had consulted in the court martial. We consulted the Judge Advocate General, the Service Prosecuting Authority and the single services.

I submit that the government amendments proceed from a sensible and widely understood base and that Amendment 3, in the names of the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Thomas of Cwmgiedd, is well-intended but inappropriate for incorporation within the service justice system.

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Baroness Bennett of Manor Castle Portrait Baroness Bennett of Manor Castle (GP)
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My Lords, I beg the Committee’s indulgence. This is my first time back in this Room, and I am afraid I got my body language wrong. I was hoping to come in before the noble Lord, Lord Coaker. Perhaps I may briefly speak in support of Amendment 5. The noble Lord, Lord Thomas, and the noble and learned Lord, Lord Thomas, as you would expect from legal people, were very carefully balanced, but I shall speak unashamedly in favour of the victims. The noble Lord, Lord Coaker, referred to the Times report about under-18s to which I was going to refer. I shall refer to another Times report from April, when 4,000 servicewomen and veterans came forward to speak about their concerns.

We know that there is a problem with prosecution of the crimes of rape, sexual assault and domestic violence in all areas, but it is obvious where we want to invest our effort. If we do so in the civilian courts, that is where the real speciality and ability will lie. I and others have framed this as an issue of violence against women and girls, but it is also worth thinking about male victims of domestic violence, rape and sexual assault, and how difficult it may be for them in that context.

This will be my only intervention in Committee. Your Lordships’ House is not taking recess for the COP 26 climate talks, although we recently took recess for the party conferences, which happen twice a year. I apologise that I will not be able to take a full part, but I hope to come back on Report.

Finally, there was a great deal of discussion of this at Second Reading, and I was expecting more discussion of Amendment 5 today, because this is something that we really need to see change and progress on.

Baroness Goldie Portrait Baroness Goldie (Con)
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First, I want to thank your Lordships for what has been a profound and stimulating discussion. I am conscious that much of the debate has centred on fairly technical legal issues, not least in particular reference to the criminal legal system, both for civilian and service justice systems. I shall do my best to address the issues raised.

By way of preface, in response to points notably made by the noble Lord, Lord Coaker, and the noble Lord, Lord Thomas of Gresford, and echoed by the noble and learned Lord, Lord Thomas of Cwmgiedd, we all want a service justice system that is fit for purpose. I think we are all absolutely united in seeking that objective, and that is exactly what the Bill aims to achieve. That offers me the opportunity to say to your Lordships that much had to move at pace, involving a considerable volume of material. I apologise for that, as I know that you have all been deluged, first with the publication of the Henriques report and then the tabling of government amendments to create the defence serious crime unit.

While I think that these are regarded as very positive developments, I understand that it has put pressure on everybody to try properly to assimilate and understand the report and amendments. I took the view that the amendments did not make a lot of sense without the report, and I had to navigate my way through a fairly tangled jungle of clearances to make sure that we could get both things out into the public domain. I felt that it was important that we did that; it seemed to me that the amendments the Government were then able to table to the Bill in respect of the defence serious crime unit provided reassurance and perhaps answered some of the questions raised today. I think that gives a clear signal of intent about the desire to ensure, as a number of noble Lords have observed this afternoon, that the criminal justice system is absolutely fit for purpose and as good as it can be.

I will now address the amendments in this group. I shall do that beginning with Amendment 5 and then move on to Amendment 6—and then I shall speak to the intention expressed by the noble and gallant Lord, Lord Craig of Radley, to oppose Clause 7. Finally, I shall speak to Amendment 7 in the name of the noble and learned Lord, Lord Morris of Aberavon.

The noble Lord, Lord Coaker, said that there has to be confidence in the justice system, and I totally agree with that. He rightly referred to recent statistics, which are deeply troubling—and I make no pretence about that. As he probably knows, there has been ongoing work in the MoD over the last decade to try to address cultures and behaviour, to provide people who have been treated wrongly—whether it is the victims of unacceptable behaviour or of a criminal offence—with the confidence to come forward, and to try to reassure those within our Armed Forces, not least our women, that this is a good and safe place to be. That has been a Herculean struggle; it has been a huge challenge, and I am not going to pretend otherwise. What I can say is that there has been systematic progress of very good work.

The noble Lord, Lord Coaker, referred to the Commons Select Committee report, in which the MoD very readily engaged—and the Secretary of State took the courageous and absolutely correct decision to allow serving women to appear as witnesses before the committee. I thought he was absolutely right to do that, as it is the only way in which we can get evidence out into the open. Very troubling evidence was heard, and some of it was utterly appalling. What I drew comfort from was that, to the end, a very high percentage of the women who gave evidence said that they would recommend a career in the Armed Forces to other women. I felt encouraged by that. There was recognition that, while unacceptable practices and attitudes have existed in the past, there is a discernible recognition that the direction has changed.

In relation to the stats to which the noble Lord, Lord Coaker, referred, they are troubling, but they do tell us that people are now coming forward. One problem that we had was that people would not come forward; they did not have the confidence to do that—and that to me strikes at the very heart of the probity and integrity of, and the confidence that people should rightly have in, the system.

We have been and are reforming the service complaints system. A huge amount of work has been done among the single services to that end.

Baroness Brinton Portrait Baroness Brinton (LD) [V]
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I seem to have lost the sound.

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Baroness Goldie Portrait Baroness Goldie (Con)
- Hansard - - - Excerpts

I shall leave that to those who are much more technically gifted than I am to resolve.

I say to the Committee that I absolutely hear the concerns expressed and am not giving some cosmetic response to them. These concerns are being addressed, and in many respects have been addressed. I hope that we are going to see that a much healthier climate exists within the Armed Forces.

I turn specifically to Amendment 5, which seeks to ensure that the most serious crimes as listed in the amendment are tried in the civilian courts when committed by a service person in the UK, unless, by reason of specific naval or military complexity involving the service, the Attorney-General has specifically consented for such crimes to be tried at court martial. I realise that there is much interest in the Government’s decision not to follow recommendation 1 in the Service Justice System Review. While we accept the need to improve the decision-making processes in relation to concurrent jurisdiction, we do not believe that the introduction of an Attorney-General consent function is the best way to achieve it.

By way of background, I would like to be clear that the primary reason the service justice system was established was, as we discussed earlier today, to support operational effectiveness and maintain the service discipline of our Armed Forces. The recently published review by Sir Richard Henriques and the service justice system review by His Honour Shaun Lyons were unanimous in accepting that premise; they strongly supported the continued existence of the service justice system. The noble and learned Lord, Lord Thomas of Cwmgiedd, referred to the importance of public confidence in that system. I entirely agree: it is vital that the public and victims, and service personnel, have confidence that this system can act adequately in respect of what it is asked to do.

Sir Richard Henriques stated in his review, published just last week, that he agreed with the Government’s decision to retain unqualified concurrent jurisdiction for murder, manslaughter and rape. Sir Richard, a retired High Court judge, found the service justice system to be fair, robust and capable of dealing with all offending. This endorsement of capability echoes the conclusion of the process audit conducted as part of the Lyons review, which previously found that the service police have the necessary training, skills and experience to investigate any crime. The service police, prosecutors and judiciary are trained, skilled and experienced, while independent prosecutors can be trusted to make appropriate decisions on jurisdiction.

I think it was the noble Lord, Lord Thomas of Gresford, who raised the issue of statistics on conviction rates. It is not possible to draw a meaningful statistical or data comparison between the service justice system and the civilian system, because the small database in the service justice system means that variances have a disproportionate effect, which I think everyone can understand. That can lead, frankly, to false conclusions.

We are confident that the service justice system provides an effective and fair system of justice for our Armed Forces. What we recognise, as in the very point raised by the noble and learned Lord, Lord Thomas of Cwmgiedd, is the public confidence issue and that it can be maintained only if the service justice system not only has but can be shown to have the capability to deal with all offending fairly, efficiently and in a manner which respects and upholds the needs of victims. That is why we continue to implement the recommendations of the Service Justice System Review, some of which are measures in the Bill. This will ensure that the service justice system is more effective and efficient and provides a better service to those who use it.

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Lord Morris of Aberavon Portrait Lord Morris of Aberavon (Lab)
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On the point about circuit judges being allowed to try these very serious offences, will they be of a similar calibre to those judges who are licensed to try rape and murder cases? Maybe the Minister will not be able to deal with this now, but perhaps she could later.

Baroness Goldie Portrait Baroness Goldie (Con)
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The noble and learned Lord makes a good point. Obviously at the heart of this is making the service justice system as good as it can be. Clearly I cannot give a specific undertaking as to what criteria would be adopted in making such a selection, but I hear what he says and it will be given careful consideration. I cannot be more specific about that just now.

I was saying that I hope the noble and learned Lord is reassured that we have considered this matter in detail, having regard, as we have been discussing this afternoon, to the military and operational environment in which our armed services function. In these circumstances, I hope he will not press the amendment.

I omitted to answer a specific question posed by the noble and learned Lord about the most junior member of the court martial voting first. I am informed that the most junior member of the court martial does vote first.

Lord Thomas of Cwmgiedd Portrait Lord Thomas of Cwmgiedd (CB)
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I want to ask about two matters. First, I raised the point about judicial review but I also raised the serious issue of concurrent jurisdiction relating to murder committed overseas, and I gave the references. I would be grateful if the Minister could reply. I would not expect her to do that now but I would be grateful if she could write and deal with these two rather important points.

Baroness Goldie Portrait Baroness Goldie (Con)
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I certainly undertake to look at Hansard and endeavour to frame a response to the noble and learned Lord.

Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD)
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I am grateful to the Minister for the very careful and thorough way she addressed these amendments. I feel that she slightly misrepresents the nature of Amendment 5. I am not suggesting that in every case the Attorney-General be woken up by the telephone in the middle of the night and come to a decision in her pyjamas. That is not quite what I have in mind, which is that serious offences such as murder, manslaughter and domestic violence should normally be tried in the civil court. There is no question of protocols: that is the normal way you go about it. But in the event that there is some very specific naval or military complexity involved—I had in mind, for example, the working of a gun in a tank that causes another person to be killed on Salisbury Plain—one could imagine that there might be a case for the authorities to say, “This has a bit of a military tang to it. Therefore, we will see whether the Attorney-General will agree, in this very unusual case, that a trial by court martial would be more appropriate, because the panel might be more used to that sort of thing.”

We are talking about murder, rape, manslaughter, domestic violence, and child abuse by serving soldiers or servicepeople in the United Kingdom. It is important that that should be realised. Normally they would be tried in the Crown Court by a jury in the ordinary way.

The noble Lord, Lord Coaker, the noble Baroness, Lady Bennett, and the noble and learned Lord, Lord Thomas of Cwmgiedd, raised the issue of confidence. That is what this is about: public confidence in the system of service courts. That is what is needed. I repeat what the noble Lord, Lord Coaker, said: people will not come forward. If you have a situation where servicepeople who complain of rape find that only 16% of the complaints result in convictions, that means that 84% of victims will have gone to the court, given their evidence and found that the defendant has been found not guilty of the offence against them. Does that give confidence, not just to the victim but to the family? They will leave the service; this is the sort of situation in which a person says, “I’m not going to stand for this. I’ve gone before a court martial; they don’t believe me.”

This is an extensive problem in the United States. Four or five years ago I gave evidence to a congressional committee in Washington on what the British system was because they were considering sexual assaults in the military over there. I was in the unlikely company of Senator Gillibrand of New York, a Democrat, and Senator Ted Cruz of Texas, who is known to have certain right-wing views. They were all on the same side. Nothing happened. President Biden has within the first six months of his Administration set up a commission to deal with sexual offences in the military. This is a very important point and it is very necessary that we deal with it properly.

The noble and learned Lord, Lord Thomas of Cwmgiedd, pointed out to the judicial review that took place in the Blackman case that our protocols for overseas jurisdiction have not worked. His proposal that parliamentary approval of any protocol should underpin that protocol is entirely correct, sensible, right and common sense, because it would prevent the bringing of judicial review against whoever is in charge—the Director of Service Prosecutions or the director of prosecutions in another jurisdiction—as the protocol would have parliamentary approval.

I support the noble and learned Lord in that. The fact that it does not exist at the moment is neither here nor there; what we are concerned about is having something that does not give rise to parades and demonstrations in Parliament Square, as happened in the Blackman case. That is an important point, and I am sure that the noble and learned Lord, Lord Thomas of Cwmgiedd, will pursue it.

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We do not have this general commitment, as individuals and administrators, let alone as it is in this Bill, which is open enough to give the commitment that the covenant promised to give. I plead with the Minister to ensure that, whatever comes with this, we allow it to be modified as we all learn more about how to be effective, especially in the mental welfare of our veterans.
Baroness Goldie Portrait Baroness Goldie (Con)
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Once again, I thank noble Lords for a stimulating and interesting debate. I appreciate the contributions, to which I have listened with care.

To set a context for my response to the amendments, I would just observe that I clearly and firmly feel that the Bill, by including the reference to the covenant and imputing to it a statutory effect, is taking us a very significant step forward. I understand the frustration and impatience on the part of some that the pace is not moving more quickly and that the reach of the definition in Clause 8 is not being broadened. However, in that context, I shall try to address the points that have been raised, all of them very worthy; in no way would I wish to dismiss them.

The amendments tabled by the noble Lord, Lord Coaker, and the noble Baroness, Lady Brinton, would widen the scope of the new covenant duty to the areas of employment, pensions, compensation, social care, criminal justice and immigration. In considering how to take forward our commitment to further strengthen the covenant in law, which we have discharged in the Bill, we looked first at what the covenant has already achieved. The considerable number of successful initiatives across many different policy areas that we have seen through the Armed Forces covenant to date shows how the careful use of legislation could provide a firm basis and the flexibility for a much wider range of work to develop.

We bore this model in mind in the development of the new covenant duty to ensure it can provide a secure framework that allows scope for innovation, change and future growth. I agree with the noble Lord, Lord Coaker, that this is about our service personnel, our veterans and their families. In approaching this, we recognised that delivery of the functions relative to healthcare, education and housing in England, Scotland, Wales and Northern Ireland would benefit from what I might describe as a more uniform awareness of the covenant and perhaps a more universal application of the principles that underpin it.

This has been difficult to encompass, as I think your Lordships will understand, for obvious reasons. The first thing I want to do is to give thanks to the devolved Administrations. They have been co-operative and helpful. I simply explain to your Lordships that even progressing the statutory import with the three areas of healthcare, education and housing has not been straightforward. It has been complex. Your Lordships will understand why. We have a range of delivery mechanisms across the United Kingdom. We have different responsible elements. We have different responsible Governments. We are trying to increase awareness across the UK and achieve a more universal recognition of the principles of the covenant in delivering services.

The question was asked: why healthcare, education and housing? The new duty is designed initially to focus on these three core functions. That not only reflects those already in statute—where there has to be obligation —but also addresses the most commonly raised issues affecting the day-to-day lives of our Armed Forces community. I think it was the noble Lord, Lord Coaker, who asked how we know that. It is a perfectly legitimate question. There has not been a specific consultation on that but, as the noble Lord will be aware, the covenant now embraces the MoD and the Office for Veterans’ Affairs. There are our partnerships and discussions with charitable entities, not least the Royal British Legion. We also discuss regularly with families, federations, local government and devolved Administrations what the needs imposed by the covenant are. I can say to the noble Lord that there has been significant experience of dealing with issues coming through to the covenant team in the MoD and their subsequent discussions with the other parties to which I have referred.

The three entities, healthcare, housing and education, seemed to be the most prominent features in that work. That is why we have focused on them. Importantly, the Bill provides for further consideration of additional areas of concern and it grants the Government powers to make any changes as a consequence. In this way, the covenant duty can effectively adapt to the needs of the Armed Forces community in the future. Future areas of concern will be addressed as and when they arise through the powers in the Bill that allow the Government to widen the scope of the covenant duty, if needed, through secondary legislation. We are working with key stakeholders to establish an open and transparent process by which the scope of the legislation can successfully adapt to address the changing needs of the Armed Forces community.

We have to consider the practicalities of extending the covenant duty to further policy areas. My noble friend Lord Lancaster alluded to this. Indeed, to achieve the extension sought by this amendment would require the amendment to specify which functions would be relevant, in the way that we have defined a relevant health, housing and education function. The list of specified persons and bodies subject to the duty would also need to be amended to include the bodies which exercise the relevant functions envisaged by the amendment. That would require extensive consultation with stakeholders and the devolved Administrations to identify the appropriate bodies and functions to bring into scope.

I suggest that a perhaps wiser and better way forward at the moment lies in first working through and resolving any practical implications arising as the new covenant duty is implemented. That will give us a good indication of where amendments may be required to better meet the changing needs of our Armed Forces community in future.

The noble Baroness, Lady Brinton, and the noble Viscount, Lord Brookeborough, also raised the important issue of mental health, and were absolutely right to do so. I was asked for some detail. We are committed to enhancing health and well-being for veterans; I highlight the recent launch of Op Courage, which simplifies access to NHS England veteran services. That is among excellent work being done within the serving Armed Forces in relation to mental health, where there is far swifter and better recognition of persons who may need support and a much swifter reference point to direct those individuals to where they can get that support.

I return to the amendment. By retaining the flexible nature of the legislation, the Government hope to establish a firm legal foundation for the covenant while avoiding any unnecessary administrative burden. The new duty builds on the existing widespread commitment to the covenant, thereby contributing to a further strengthening of covenant delivery across the UK. I think that it was the noble Lord, Lord Coaker, who specifically asked about the Delegated Powers and Regulatory Reform Committee and its recommendations. I am seriously considering its report and will undertake to update the Committee on Report.

I have attempted to explain in relation to Amendments 8, 10 and 13 why the Government have a difficulty. I hope that my remarks have been received sympathetically and have not been regarded as obstructive, but I invite the noble Lord and the noble Baroness not to press their amendments.

Amendment 64 in the name of the noble Baroness, Lady Brinton, supported by the noble Baroness, Lady Smith, refers to civilians subject to service discipline; these are civilians who come within the jurisdiction of the service justice system and include groups such as families of service personnel living on bases overseas, Crown servants working with the Armed Forces overseas, or civilians on board military ships or aircraft. I understand that the amendment was actually intended to apply to locally employed staff in Afghanistan but I am required to address the amendment as scripted, although I will come to Afghanistan more specifically.

The Armed Forces covenant was designed with the Armed Forces past and present, and the families who support them, at its heart. That was in recognition of the unique obligations of and sacrifices that they make on behalf of the country in serving us. In practical terms, the covenant is focused on ensuring that the Armed Forces community gets a fair deal when accessing public goods and services in comparison with their civilian counterparts, with the aim of mitigating any disadvantage that they may face as a result of service life, and to allow special provision to be considered for those who have sacrificed the most.

The covenant is therefore directed primarily within the UK, and I do not think that it would be helpful or appropriate to include in its scope locally employed staff working for the United Kingdom Government, whether in Afghanistan or any other country. Those individuals are employed as civilians under their own bespoke terms and conditions of service within their own countries. However, importantly, the Government will take further action where necessary. In Afghanistan, we completed Operation Pitting, the biggest and fastest emergency evacuation in recent history, bringing around 15,000 people to safety in the UK and helping 36 other countries airlift their own nationals.

The whole UK Government are engaged, via Operation Warm Welcome, in ensuring that those Afghan nationals relocated to the UK are provided with the best possible support and start to life in the UK that we can give them. That comes from a variety of sources; it comes from across government departments and may involve the devolved Administrations or come from other public agencies. I say to the noble Baroness, Lady Smith, that it includes assisting these Afghan nationals into work. I am informed that some ARAP people are now working in the UK as we speak.

We have made it clear that our commitment to Afghanistan and those who supported our mission there continues. Our message to those people to whom we have made a commitment is clear: that commitment to you is enduring. However, the covenant is not the appropriate mechanism to accomplish that support and help.

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Lord Craig of Radley Portrait Lord Craig of Radley (CB)
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My Lords, before the Minister sits down, I refer her back to her earlier comments about the addition of functions, and her feeling that this would be an overload on the functioning of the covenant system. Perhaps these functions could still go into the Bill but be brought into force through statutory instrument at various stages in future. It seems to me that the opportunity to get them into the Bill is one that we should not miss.

Baroness Goldie Portrait Baroness Goldie (Con)
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As the noble and gallant Lord knows, I have the greatest respect for him. I have no doubt whatever about his commitment to and interest in these issues. I have tried to indicate that even to get to where we have reached has been challenging and difficult. Notwithstanding all that, it has got us to a good place. It is far better to put our toe in the water, make progress in these three significant areas—and they are significant—and assess how that is working in practice. Then we can make an informed decision about whether expansion is needed and, if so, where. Is it proving a source of concern to our Armed Forces personnel and veterans? That further work will be important to establish, first, whether a need is there and, secondly, how to meet it. As I said earlier to him, that requires extensive consultation with a large variety of bodies, not least the devolved Administrations.

I should not want to give people boundless hope that we could deliver things that, although in an Act of Parliament, could prove problematic to deliver. That is my major concern. We should manage expectation. Quite honestly, we should allow this to unfold and see how it runs. We are under an obligation in the covenant to report every year on how matters are progressing, and we have the facility in the Bill to take forward expansion if that need is identified. I suggest to the noble and gallant Lord that this is a more prudent and sensible way in which to proceed.

Viscount Brookeborough Portrait Viscount Brookeborough (CB)
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Before the Minister sits down, I thank her for everything she said and for being so open-minded. However, she said that a veteran—or a veteran’s family—who goes to get help and is refused will then go to an ombudsman or through a complaints system. I think she is a bit optimistic, because veterans who have given their hearts to the country in Afghanistan and who have fought for their lives should not have to fight for this. I would rather that she had suggested a way of monitoring from the other end the refusals of help and the circumstances. My experience is that, even without mental welfare problems, veterans have given their lives to this country fighting, and they are reluctant to go public or to drag others in. We are talking about initiatives from up the chain of authority, which is monitoring and picking them up, rather than relying on our veterans to fight once again.

Baroness Goldie Portrait Baroness Goldie (Con)
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I can understand why the noble Viscount articulates that point. If we draw a distinction between active service personnel and veterans, I imagine that our active personnel in service at the moment are more likely to be interested in health and education. I think that our veterans are more likely to be interested in health and housing, for obvious reasons.

One of the difficulties with the noble Viscount’s suggestion is that we do not know, and we have no reason to know, whether anyone is encountering problems. To take the example from the noble Baroness, Lady Brinton, we do not know whether a parent has a problem with getting her child adequately placed in a suitable facility until that person comes and tells us that there is a problem. We are trying to ensure that they have a much simpler route to finding the solution they need because of what the Bill is doing. That is why the obligation is being placed on the delivery end. The individuals seeking the particular facility or the help actually want to go to the provider and say, “This is what I need, please can I have it?”

In the disappointing eventuality that help is not forthcoming, if that person is in service then there will certainly be help available within the armed services to support them. If the person is a veteran, there is a plentitude of help from charitable agencies, some of the Armed Forces charities and other support charities. If there were a delay or obstruction in the necessary service being received by the person who needs it, I hope that that would be very quickly picked up so that the person knows they could go to the provider and say, “You’re failing me. You’re falling down on the job. That is not good enough.” It is very difficult for anyone else to know whether that person, first, wants a service, and, secondly, has been disappointed or obstructed in trying to get it.

Lord Coaker Portrait Lord Coaker (Lab)
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I thank the Minister for a very constructive reply. While she was responding, I looked again at the power to add bodies and functions in the Bill. To take up the point from the noble Lord, Lord Lancaster, and some of what the Minister was saying, it seemed that she was not saying that there was never going to be a need for bodies that need to “have due regard to” to be added to the covenant, but the issue is the practicality of it. From looking at the Bill, I wonder whether an appropriate amendment could come forward on Report to put a bit of meat on the bones, rather than the Bill just saying that there is a power to add bodies and functions. If I have not mistaken what the noble Lord said, maybe there could be some kind of timeframe and greater certainty, but perhaps we will be able to look at that in response to what the Minister said and the suggestion that he made. I thought that was very helpful.

I thank the noble Viscount, Lord Brookeborough, for his contribution and the point he made about what “due regard” means. I hope we do not have a judicial review about that. Again, I am not a lawyer, but I know what “due regard” means. I am sure you can argue it, but I think we all know what it is supposed to mean. I will leave that to the lawyers.

I also apologise to the noble Baronesses, Lady Brinton and Lady Smith, and to the noble Lord, Lord Lancaster. As many of us will have done, I read lots of documents and Bills related to this over the weekend. I did not properly read Amendment 64, which raises a really important issue that the Minister, to be fair, sought to answer. I will read this out, because people read our affairs and they will not know what we are talking about when they read it; I apologise, but it is important. The noble Baronesses suggest that the covenant

“should be extended to cover civilians subject to service discipline who have been employed by the UK Armed Forces while on deployment.”

I think a lot of people would think that was probably already the case. The Minister, to be fair, said that of course the Government have due regard to people who had done that, because they have a duty of care, responsibility and so on, but the amendment seeks to put that into primary legislation. It is certainly something worthy of further thought and consideration. I appreciate that the Minister sought to answer this, but it is a particularly important amendment. I think that in bringing it forward, the noble Baronesses, Lady Brinton and Lady Smith, have done the Committee a service. That is what I have to say about the attention to detail.

With those brief comments on what I thought was, again, a helpful debate, I beg leave to withdraw my amendment.

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Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, I shall be extremely brief because we have had contributions from all parts of the House—Labour, Liberal Democrat, Conservative and Cross Bench—supporting this amendment. I should be very grateful if the Minister answered the question I asked at Second Reading, which was:

“What assessment have the Government made of creating a duty for themselves to pay due regard to the Armed Forces covenant?”—[Official Report, 7/9/21; col. 766.]


Has the Minister had a chance to think about that so far? If not, would the Government like to think about it ahead of Report?

Baroness Goldie Portrait Baroness Goldie (Con)
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My Lords, again this has been a fascinating debate and I arise with trepidation when one of the contributors is my noble and learned friend Lord Mackay of Clashfern. A number of significant points have been made and I will try to address them as best I can.

Amendment 9, as has been discussed, centres on the desire to make central government departments subject to the duty of due regard. Again, to provide some context, we designed the new duty to initially focus on the three core functions of healthcare, education and housing because, as I indicated in debating a previous amendment, these are prominent among the concerns of both Armed Forces personnel in service and veterans. They not only reflect issues that are already in statute, but also address the most commonly raised issues affecting the day-to-day lives of our Armed Forces community.

As our Armed Forces are a very mobile population, frequently moving from local authority to local authority, it is often the variation of service delivery across local areas that can inadvertently cause disadvantage. Consequently, it is vital that those delivering these key public services are sufficiently aware of the challenges faced by the Armed Forces community when accessing these services. It is right that we look at this area first.

We also took into account that central Government are responsible for the overall strategic direction for national policy and for delivering on the manifesto on which they were elected. However, the responsibility for the delivery of these functions and their impact rests at more local level. I would argue that Governments are answerable, ultimately, to an electorate when a general election comes round and, before that point, they are most certainly accountable to Parliament, and that is an accountability no Government would ever take lightly.

Senior engagement regularly takes place between the MoD, the Cabinet Office, other government departments and the devolved Administrations to drive an increase in covenant awareness across national healthcare, and housing and education policy to improve the lives of the Armed Forces community. Additionally, the Government’s delivery of the covenant is, as we all know, subject to parliamentary scrutiny through the existing annual legal obligation to report progress delivering the covenant across the UK to Parliament. This is in addition to regular parliamentary scrutiny through other channels, such as Parliamentary Questions, reviews by the House of Commons Defence Select Committee and debates called by Members with a particular interest in certain aspects of defence.

My noble and learned friend Lord Mackay of Clashfern raised in support of his argument the certainly interesting event that occurred during the first Gulf War. As he explained, in anticipation that troops might be exposed to gas issues and had to be protected against that, protective equipment was handed out. As he indicated, people then suffered from a neurological type of disease on their return and tried to identify where it had come from. As my noble and learned friend said, they had not actually been exposed to any toxic gas, so the suspicion was that it was from the protective equipment. He adduced this instance in support of his argument that central government should be brought in.

I have two observations on that analogy. The emphasis on what the Government are doing in this Bill and what we have endeavoured to make possible is, first, to give the covenant a statutory impact, which is innovatory and very important; and secondly, to try to make it much clearer across the United Kingdom, for the whole panoply of services being delivered in respect of housing, education and health, how there needs to be greater awareness and understanding, and a much more universal approach to delivering these services to personnel who may be in service in the Armed Forces or veterans. That is about ensuring that, when they need services, they can access them.

The question that my noble and learned friend poses about the instance that he describes, with the reference to the first Gulf War and the particular situation that developed there, is a legitimate illustration to give the Committee. I accept that that was a serious situation, but the question running through my mind as he spoke was that surely the important thing there was remedy. This is not about people needing something, not being able to get it, and making sure that the providers of that service are much more alert to providing it; it is about a situation where, under orders of government, Armed Forces were sent abroad and then apparently—I do not know the facts myself—experienced neurological disorders when they returned, and considered that was attributable to protective equipment that was defective, with which they had been issued.

That is not a complete analogy with what the Bill is trying to do. If you ask what solution was needed, the answer, quite simply, is that those people who suffered in that way needed to be given advice and helped, and needed to find a legal solution, if that was what was available to them. I do not know what happened to that particular group of people, but I imagine that the first thing they needed was medical support, which I hope that they got. I imagine that, within the Armed Forces, there would be a concern about the manifestation of that situation and a desire to support, but the bottom line is that, if the culpable body were the Government and the MoD, if these individuals sought and obtained good legal advice the MoD would find itself, quite properly, the subject of litigation. That is how the solution would be sought. If the court was satisfied that the negligence alleged by those who had suffered was proved, remedies would follow.

I say with the greatest respect to my noble and learned friend Lord Mackay that I absolutely understand what he is driving at, but I still do not see a complete dovetail analogy with what we seek to deliver through the Bill. The situation that my noble and learned friend outlines is serious. It may very well happen in future, but the MoD is very vigilant and conscious that if it falls down on its duty to its own people it will expect to be sued—and it is. Not only is it sued and expected to provide redress but support is given to people who find themselves in that grouping. Including central government in the Bill is unnecessary. The Government are already subject to a legal obligation to report on the delivery of the covenant, and there are many and sufficient levels of public scrutiny.

Let us bear in mind that the Bill is about trying to improve the levels of awareness across the United Kingdom and a better and more universal provision of essential services for those members of our Armed Forces and veterans who need them. My problem with the amendment is that, were it accepted, we would create an obligation on central government. We cannot impose a comparable obligation on devolved Governments because that would be incompetent and not within the scope of the Bill. We would then once again create disparity rather than universality across the United Kingdom. We would have central government bound in one way but not devolved Administrations. That is not a desirable outcome.

I am not at all immune to the importance of the arguments advanced by my noble and learned friend. He makes an important point. The situation to which he refers was grave. I suggest that that can be addressed by existing means. It does not need the inclusion of central government in the covenant, which, indeed, would not necessarily have prevented the problem. The question is: how do we provide a remedy to people who have been affected by such an unfortunate development? My response would be: by providing support. Advice is available—legal advice if that is required—for people to follow through the remedies they seek. It is not necessary to bring central government into the legislation. It is much more important that we focus on what we are trying to do as a first step, make sure we get that working properly and then, as we have been discussing, consider whether there is a need to expand that provision of duty.

I am unable to agree that this amendment is either necessary or would help the situation; it could create a difficulty where one does not currently exist. In those circumstances, I ask the noble Lord to withdraw his amendment.

Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern (Con)
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My Lords, I never mentioned negligence. I am not suggesting for a minute that there was necessarily any negligence. The Armed Forces put in requirements for the people who were taking part for protection against what they thought might come. That was a perfectly reasonable thing to do. Some of them took the treatment. The question was: what was the result of that? That was a question for the Secretary of State. It was him who had to look into that; it was a national question. It had nothing whatever to do with negligence or some other basis of claim. The claim was because the Government had approved a covenant, which I said should protect them in respect of their work in the Armed Forces and after they had left. That is what this was—nothing more, nothing less.

I am sorry to interrupt, but I have to make it clear that there is no suggestion in my argument that there was any negligence or any sort of enforcement available at the time. This is a new remedy, and it should be given.

Baroness Goldie Portrait Baroness Goldie (Con)
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I am very grateful to my noble and learned friend for expanding that further. I understand the point he is trying to make. I was making a distinction between areas where, if the MoD was culpable, it could expect a claim of negligence. My noble and learned friend outlines a situation where something happens and maybe no negligence can be established but people suffer. In that event, we would want to do two things: we would want to find out what happened and provide help to those affected. But is it not the case that the covenant already provides a route for question and accountability of the Government to Parliament? The annual report could be presented and Parliament could say, “We absolutely dismiss that report”, and ask why it has made no reference to the situation of the type my noble and learned friend referred to. I argue that there is accountability and, separate issues flowing from that, our support and solutions for those affected, but these could be provided in other ways. They do not require a covenant to secure that.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, the noble Baroness’s thinking has not necessary moved on very much from Second Reading, when she said

“I would say that government is held to account by Parliament and the purpose of the covenant duty is to raise awareness among providers of these public services”.—[Official Report, 7/9/21; col. 770.]

Parliament can and should hold the Government to account but, if the legal duty to have due regard is put only on local authorities and certain other providers and not on the Government, yes, we can ask questions but we cannot actually hold the Government legally accountable. The points the noble and learned Lord, Lord Mackay of Clashfern, made are surely right: if we want to think about aspects that go beyond the duties to local authorities, that duty needs to put on to central government, not just local government.

The Minister suggested there might be a problem that we as Parliament or Her Majesty’s Government cannot put duties on the devolved Administrations. Surely that is precisely because defence is a reserved matter so, if we are putting a duty on to anybody, apart from local authorities and local health authorities, it ought to be on to central government, not on to the Governments of Scotland, Wales and Northern Ireland.

Baroness Goldie Portrait Baroness Goldie (Con)
- Hansard - - - Excerpts

With the greatest respect, that might seem a tempting analysis of the situation, but the bottom line is that an inequity and disparity would be immediately introduced in the United Kingdom, because a Government would be bound and other devolved Governments would not be. That is profoundly undesirable.

Lord Coaker Portrait Lord Coaker (Lab)
- Hansard - - - Excerpts

I thank the Minister for her reply. She is in a bit of trouble on this one. Logically, I do not think that some of what she said holds together. In her answer to the noble and learned Lord, Lord Mackay, she clearly talked about negligence, people being sued and things like that, whereas what the noble and learned Lord talked about, and the noble and gallant Lord, Lord Craig, talked about very movingly from his own experience, is that we are seeking to require central government to have due regard to the covenant. Placing that obligation on central government in the same way as we are placing it on local authorities and other bodies is consistent with the principle that we are seeking to drop adopt through this legislation. This is not about moving into an area where a Government are negligent.

All I would say to the Minister is that we will have to come back to this on Report. I wonder whether she could reflect again on the discussions that have taken place in Committee to see whether there might be a way forward for us all. With that, I seek the leave of the Committee to withdraw the amendment.

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Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
- Hansard - - - Excerpts

I have nothing to add.

Baroness Goldie Portrait Baroness Goldie (Con)
- Hansard - - - Excerpts

I thank my noble friend for tabling this amendment, and I understand his motivation for doing so. I want to develop this a little further because he has raised some interesting arguments. He has described how the amendment seeks to give the Secretary of State for Defence the power to amend the scope of the Veterans Advisory and Pensions Committees’ statutory functions by regulations in the future.

My noble friend has described extensively what the VAPCs do across the UK. They are established under the Social Security Act 1989, with their functions set out in the War Pensions Committees Regulations 2000. Indeed, they used to be known as War Pensions Committees and their original role was expressly to raise awareness of the War Pension Scheme and latterly, the Armed Forces Compensation Scheme, and to make representations to the MoD on behalf of recipients. For that reason, the enabling Act for the VAPCs, the Social Security Act, sets out that their statutory functions are limited to the cohort of veterans and their families who are claiming for or in receipt of one of the two compensation schemes. It is that limitation that my noble friend’s amendment seeks to remedy.

In practice, as my noble friend knows—he alluded to this—members of the VAPCs have for many years performed activities that go above and beyond that scope. For example, many members have taken on a role promoting the Armed Forces covenant locally to all those who might have an interest in it. They have done that on a non-statutory basis and there have been no substantive issues with them doing so. I therefore suggest that in this respect my noble friend’s amendment is not necessary to achieve the outcome that he seeks.

However, there is a desire on all sides for greater clarity on the role that VAPCs have. My honourable friend the Minister for Defence People and Veterans joined a conference with the VAPCs yesterday and confirmed that he had signed off on a new set of terms of reference agreed by both the VAPC chairs and officials in the MoD and the Office for Veterans’ Affairs. The terms set out two new specific principles: first, to set out the activities that members of VAPCs as individuals and as members of informal regional groups are asked to carry out relating to all veterans and their families and, secondly, to provide direction relating to their performance for an initial period of 12 months beginning from 26 October, in order that we give the chairs a sensible period of time to adopt the new terms of reference and show how they can deliver against them. Following that initial 12-month period, the Minister for Defence People and Veterans will review the terms of reference and performance against the activities set out and will then make a determination on the next steps.

I say to my noble friend that the Government have a clear way forward over the next 12 months that has been agreed with the VAPCs themselves. We want to give them the chance to perform under the new terms of reference before we take any decisions about their longer-term future. We want to use the next 12 months to gather the evidence that we need to take an informed decision.

That is why I feel that my noble friend’s amendment is premature at this stage. To pass it now would put the cart before the horse. It would give the Secretary of State a power that we do not yet know if he would need or use. It would pre-empt the outcome of our work over the next 12 months and would imply that a change to the VAPCs’ statutory role was required when we have not yet actually come to any decision about that. It would provide only for a specific and rather limited adjustment to their statutory role when we might instead wish to consider more fundamental changes.

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Moved by
16: Clause 9, page 19, line 6, leave out paragraph (a) and insert—
“(a) omit “(a “full-time service commitment”)”;”Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision made by Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.
Baroness Goldie Portrait Baroness Goldie (Con)
- Hansard - - - Excerpts

My Lords, group six comprises Amendments 16 to 37 inclusive. In total, these relate to a minor, technical amendment to Clause 9, which introduces important changes to Section 24 of the Reserve Forces Act 1996 to enable our reserve personnel to do more and for defence to offer them more. The changes we are making to Section 24 will in future enable reservists to undertake periods of full-time and part-time service, or a combination of both under one continuous commitment.

On reflection, we feel it more appropriate to refer to our new continuous service commitment using neutral terms, such as “a Section 24 commitment”. This will avoid any suggestion that reservists are in continuous service only in certain circumstances. Reservists are serving members of the Armed Forces during their entire term of service, not just when they are on duty or in training. It is a purely technical amendment and I can confirm that, importantly, it will have no impact on how the new measures we are introducing under Clause 9 will operate. It will allow our Reserve personnel to do more and enable the Ministry of Defence to make better use of their knowledge, skills and experience, but avoid any possible confusion as to nomenclature and meaning. I beg to move.

Lord Tunnicliffe Portrait Lord Tunnicliffe (Lab)
- Hansard - - - Excerpts

I accept the Minister’s assurance that this is a wholly technical amendment. If my assistants find that not to be true, I shall return to it ferociously on Report. But assuming that is the case, I am content with the amendment. I make the point that the next group goes into a fundamental area, and I would greatly object to any attempt to move into that group tonight.

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Moved by
17: Clause 9, page 19, line 18, leave out “continuous service commitment” and insert “commitment under this section”
Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision made by Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.
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Moved by
25: Schedule 2, page 42, line 9, leave out “continuous service” and insert “section 24”
Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision in Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

Armed Forces Bill

(Limited Text - Ministerial Extracts only)

Read Full debate
Committee stage
Tuesday 2nd November 2021

(2 years, 5 months ago)

Grand Committee
Armed Forces Act 2021 Read Hansard Text Amendment Paper: HL Bill 42-II Second marshalled list for Grand Committee - (29 Oct 2021)

This text is a record of ministerial contributions to a debate held as part of the Armed Forces Act 2021 passage through Parliament.

In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.

This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here

This information is provided by Parallel Parliament and does not comprise part of the offical record

Moved by
38: Clause 11, page 22, line 33, leave out “and service police forces,” and insert “, service police forces and the tri-service serious crime unit,”
Member’s explanatory statement
This amendment would make consequential provision in connection with the new Clause proposed by Baroness Goldie to be inserted after Clause 11.
Baroness Goldie Portrait The Minister of State, Ministry of Defence (Baroness Goldie) (Con)
- Hansard - - - Excerpts

My Lords, I rise to speak to group 7, which comprises government Amendments 38 to 42, 45 to 47, and 67 and 68, in my name. I will speak also to Amendments 43, 44 and 66, in the names of the noble Lords, Lord Coaker, Lord Robertson of Port Ellen and Lord Thomas of Gresford, and the noble and learned Lord, Lord Thomas of Cwmgiedd.

I thought it would be helpful if I started with something of a scene setter on the report of the review conducted by Sir Richard Henriques. As noble Lords will be aware, on 13 October 2020, the Secretary of State announced the commissioning of a review by Sir Richard Henriques, to build upon, but not reopen, the recommendations of the service justice system review by His Honour Shaun Lyons and Sir Jon Murphy.

The aim was to ensure that, in relation to complex and serious allegations of wrongdoing against UK forces on overseas operations, defence has the most up-to-date and future-proof framework, skills and processes in place, and that improvements can be made where necessary. The review was to be forward looking and, while drawing on insights from the handling of allegations from recent operations, it was not to reconsider past investigative or prosecutorial decisions or to reopen historical cases.

I am pleased to say that Sir Richard submitted his report at the end of July 2021 and, as I had committed to do at Second Reading, we published it on 21 October, with a supporting Written Ministerial Statement, to enable your Lordships to have chance to consider it during the passage of the Armed Forces Bill. It goes without saying that we are very grateful for the comprehensive and considered work that Sir Richard has undertaken, and we particularly welcome his recognition of the need for a separate system of military justice. In summary, the report contains a total of 64 recommendations, approximately a third of which are focused on taking forward the establishment of a Defence Serious Crime Unit—DSCU—originally recommended by Sir Jon Murphy.

There are also a number of operations-related recommendations, including for protocols between the service police, the Service Prosecuting Authority and the Judge Advocate-General for processes relating to the timely and effective investigation of allegations of unlawful killing and ill-treatment by UK forces on overseas operations. There are also recommendations for improving the technical IT systems supporting the military courts, and a number of recommendations relating to summary hearings.

As set out in our ministerial Statement, we have prioritised taking forward the recommendations to establish the Defence Serious Crime Unit, and I am extremely pleased that we were able to take swift action to table the government amendments for the key DSCU recommendations—one, two and seven—because they require primary legislation.

We have also committed to taking forward work over the coming months on four other recommendations, which will: amend standard operating procedures to ensure that service police are informed with minimum delay of reportable offences; establish a serious incident board within the Permanent Joint Headquarters; create or upgrade an operational record-keeping system; and adopt a uniform approach in respect of training of service legal personnel prior to their posting to the Service Prosecuting Authority.

The remaining recommendations, including among other things legal support to personnel, improved technology and IT for the service courts and improvements to the summary hearing process, raise wider implications relating to policy and legal and resourcing issues. These will be considered further by the department over the coming months. Where appropriate and necessary, legislation will be brought forward when parliamentary time allows. I will of course update your Lordships on progress.

Our goal will be to ensure that, in considering and taking forward work on Sir Richard’s recommendations, we continue to maintain operational effectiveness and the swift delivery of fair and efficient justice for victims and offenders.

The amendments in my name contain the necessary changes to primary legislation to give effect to the Government’s plans for a new tri-service serious crime unit, headed by a new provost marshal for serious crime. This is an important set of amendments that demonstrate the Ministry of Defence’s commitment to the highest investigative capabilities for the service justice system. Through this, we are rapidly taking forward the most important set of recommendations from Sir Richard Henriques’s recently published review.

The amendments make the following key changes. The new clause provides that the new provost marshal for serious crime is subject to the same rules about appointment as existing provost marshals. This means appointment by Her Majesty and the requirement that they be an officer in the service police. The new clause also provides that the new provost marshal for serious crime will be responsible for ensuring that investigations of the new tri-service serious crime unit are independent.

The new schedule contains consequential amendments relating to the clause and provides the new provost marshal for serious crime with the same investigative powers as the pre-existing provost marshals for the Royal Navy, Army and Royal Air Force and service police. I should underline that these are not new investigatory powers for the service police. This is about ensuring that the existing service police investigatory powers are available for the new arrangements. We expect there to be a similar consequential exercise for changes needed to secondary legislation.

Sir Richard’s recommendations supported those made by His Honour Judge Shaun Lyons and Sir Jon Murphy regarding the implementation of a Defence Serious Crime Unit. He further recommended: that the Defence Serious Crime Unit be an operational unit; that it should be commanded by a provost marshal for serious crime; and that the provost marshal for serious crime should have a duty of operational independence in investigative matters owed to the Defence Council, on the same terms as that owed by the service provost marshals under Section 115A of the Armed Forces Act 2006.

The Ministry of Defence has been working on the Defence Serious Crime Unit model since the recommendations made by the Lyons and Murphy review. There were non-legislative ways of implementing the recommendations from Lyons and Murphy under consideration. However, the recommendations from Sir Richard require primary legislation, particularly as far as they concern the operational independence of the unit and the new provost marshal.

The Defence Secretary is adamant that we should progress these aspects of Sir Richard’s report with the utmost speed, which is why we are bringing these amendments before your Lordships today. With the support of noble Lords, we will be able to implement these critical recommendations and, in tandem, we will progress the remaining recommendations which focus on the functionality, remit and operational considerations for the unit.

With the establishment of the new provost marshal for serious crime and the tri-service serious crime unit, the MoD will be in a stronger position to respond to serious crime. We will be able to combine resources and specialist skills from across the single services under one unit and will build an independent, more effective and collaborative approach to policing across defence.

This reinforces the decision by the Secretary of State for Defence that the existing principle of jurisdictional concurrency between the service and civilian jurisdictions should be maintained. That of course is a position that Sir Richard Henriques has also supported. The service justice system is capable of dealing with the full range of offences when they occur, in the UK as well as overseas. These changes to service policing will support that capability into the future.

I hope that this explanation assures noble Lords of our commitment to the improvement of policing across the service justice system and our intent to adopt the recommendations provided in the judge-led reviews. I therefore urge your Lordships to support the proposed amendments in my name.

Lord Robertson of Port Ellen Portrait Lord Robertson of Port Ellen (Lab)
- Hansard - - - Excerpts

Will the noble Baroness give way for a moment? She admits that she is not implementing all the recommendations in the Henriques report in relation to the prosecution and then she said that the Government would consider them with utmost speed. I recognise all these wonderful phrases. Then she said that she would bring forward amendments when parliamentary time allows. That seems to me to kick the matter down the road. Some of his recommendations that are not part of this new clause need to be implemented as early as possible. I am sure the Minister will eventually find that “when parliamentary time allows” normally means in many years’ time.

Baroness Goldie Portrait Baroness Goldie (Con)
- Hansard - - - Excerpts

I am just checking back to see what I actually read out. I was pointing out that this is roughly broken into three sectors. One is what we are taking forward today with the amendments. The second concerns four other specific recommendations that we are taking forward. Then the remaining recommendations, as I said, raise wider implications for policy, resourcing and legal issues. I said that these will be considered further by the department over the coming months and, where appropriate and necessary, legislation will be brought forward when parliamentary time allows.

That is not kicking the can down the road. That is to simply say to the noble Lord that we recognise that we still have research, inquiry and investigation to do in the department to understand the consequences of these recommendations from Henriques. We want to be clear about that but, equally, we are very positive about Sir Richard Henriques’ report. I said that our goal will always be to ensure that, in considering and taking forward work on his recommendations, we keep an eye on operational effectiveness and the swift delivery of fair and efficient justice for victims and offenders.

I hope that explains to the noble Lord why I cannot really go any further than that today. I certainly dispute his analogy of kicking the can down the road. This is a serious and substantial piece of work. We are prioritising the most important part, which we think will make a big difference to policing within the service justice system, and we are being canny about how we then progress the other bits of the report.

Lord Robertson of Port Ellen Portrait Lord Robertson of Port Ellen (Lab)
- Hansard - - - Excerpts

May I ask the Minister to be more specific and tell us which of his recommendations in relation to this specific part raise policy implications that will have to be considered over some time?

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Baroness Goldie Portrait Baroness Goldie (Con)
- Hansard - - - Excerpts

The noble Lord will have read the report and he will be in no doubt, I imagine, about both the extent and the complexity of many of the recommendations. I cannot be drawn into commenting on something where we are still doing the exploratory work to understand what the implications of the recommendations are. To reassure the noble Lord, as I said earlier, we are very positive about this report. It is a huge contribution to how we deal with justice and the service justice system. I beseech the noble Lord to exercise a little patience. I know that his natural interest in these matters, and the avenues available to him to pursue that interest, will ensure that I and the department are kept on our toes.

I was about to speak to Amendments 43, 44 and 66. I turn first to Amendment 43. That seeks to change the wording in government Amendment 42 on the duty of investigative independence for the defence serious crime unit. Government Amendment 42 works by updating the existing duty on the service police currently contained in Section 115A of the Armed Forces Act 2006. The government Amendment provides that the provost marshal for serious crime must

“seek to ensure that all investigations carried out by the tri-service serious crime unit are free from improper interference.”

The term “improper interference” is already defined in Section 115A. It includes any attempt by someone not in the service police to direct an investigation. Amendment 43 would amend the duty so that, rather than seek to ensure that investigations are carried out free from improper interference, the duty will be absolute, placing on the provost marshal a need to guarantee—“to ensure”—that the investigations are operationally independent.

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Lord Robertson of Port Ellen Portrait Lord Robertson of Port Ellen (Lab)
- Hansard - - - Excerpts

My Lords, it is a great privilege to follow the former Lord Chief Justice of England and Wales in making the valuable and very firm points that he made. The question he asks is far from rhetorical. Why should members of our Armed Forces settle for second best? Why should we expect them to be less entitled to systems of justice that ordinary citizens can access?

I have vivid memories of the overseas operations Bill from this Session of Parliament. That was another Bill that came from the House of Commons, where the debates were dominated by a Minister demanding total obedience to every dot and comma of the Bill on the grounds that if you were against it, you were against the British Army, thereby allowing through provisions that might well have led to British soldiers and other members of Britain’s Armed Forces appearing before the International Criminal Court. Eventually, the Government woke up, but not without huge pressure and a lot of distinguished Members of this House making sure they got a very firm message. I do not want to embarrass the Minister too much, but I know that she played a role in getting common sense seen in that debate.

When we look at legislation being brought forward by the Government, we are wise to be cautious about what the Government say in their own defence. Therefore, when the Minister says that there are elements in the Henriques report which require attention and I ask which of those have policy implications, I would expect the department to be able to tell us. I recognise the phrase “when parliamentary time allows”, because I am sure I used it during my ministerial career. There is usually very little parliamentary time available for primary legislation, which is what would be required to enact the remaining aspects of the Henriques recommendations.

I follow my noble friend Lord Coaker in what he says and his detailed questions. The key question concerns the fact that, while Henriques made a number of recommendations, 13 of them have not appeared in the amendments to the Bill in this Committee. He is right to ask this question, which I repeat: which of these require policy consideration, because that could take a very considerable period to come forward as well?

The stories in the Sunday Times, both last Sunday and the Sunday before, should, frankly, horrify all of us. What is described there is disgraceful, disgusting and completely indefensible. I am not a lawyer or a soldier, but I cannot understand why action is not being taken and investigations into this particular incident are not taking place. We are being told that only if the Kenyan authorities start to make their inquiries will anything happen in this country, when there seems to be clear evidence around, involving British citizens and members of the British Armed Forces involved in this. Why has there not been some investigation? Just as members of the Armed Forces are perfectly entitled to be treated like other citizens in this country, victims also have a right to the kind of justice and investigation that we would expect for anyone else in the country.

We should not allow the Sunday Times to develop this story, week after week, with hugely damaging effects on the reputation of our Armed Forces, the recruitment of people into them and the country as a whole. Although it is not, strictly speaking, the business of this Committee, it is a matter of public concern. It has alerted the public in general to the whole question of service discipline. Therefore, the business of this Committee and Bill, detailed and arcane as it is in some ways, has now become a matter of public attention. It is up to the Government and Ministers in the Ministry of Defence to pay attention to that and resolve it so that they protect the reputation of the country and our distinguished Armed Forces.

Baroness Goldie Portrait Baroness Goldie (Con)
- Hansard - - - Excerpts

My Lords, I first thank noble Lords for an interesting and stimulating debate, as ever. I shall endeavour to respond to the points raised. I certainly hope that the fate that befell Admiral Byng, so colourfully described by the noble Lord, Lord Thomas of Gresford, does not befall me, or the proceedings would come to a summary conclusion.

I will first address the points raised by the noble Lord, Lord Coaker, who said, quite correctly, that perception is important. I agree with that, but so is legal exactitude, which is, I accept, tedious to some but none the less absolutely vital in the framing of legislation. I will come to that in a little more detail shortly.

I say to the noble Lords, Lord Coaker and Lord Robertson—who, with the best of intentions, I know, raised the appalling situation of the Kenyan lady —that I am constrained. This is a live investigation in Kenya, and it is sub judice. I can say that the Secretary of State has offered our full co-operation, but it is essentially a Kenyan investigation. We are prepared to offer any co-operation that we can when they request it. We have to let the investigatory process continue.

The noble Lord, Lord Coaker, reverted to the point raised by the noble Lord, Lord Robertson, about the remaining Henriques recommendations. I looked at again at what I said and double-checked where we are. I do not want to be discouraging or disappointing, but I can put my hand on my heart and say that approximately 40 of these recommendations require policy and legal analysis. That is factual, and I cannot accelerate that at the moment, but I am happy to give your Lordships an undertaking that I shall certainly monitor and report back on progress. I hope that will reassure your Lordships that this is not some somnolent process that will fall asleep once Committee stage is over. I am very happy to place that on the record and offer to do that.

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Lord Lancaster of Kimbolton Portrait Lord Lancaster of Kimbolton (Con)
- Hansard - - - Excerpts

I sense that my noble friend might be coming to the end of her remarks. Perhaps I might take her back to the question of independence and the need for the appointment to come from members of the service police. The answer that she gave to the Committee was, “Well, that’s what the Armed Forces Act says”. My response would be, “Well, so what?” Is it not the purpose of this Bill and this Committee to look again at these issues? I do not want to put my noble friend on the spot, but could we perhaps think again as to whether that is still the best thing to do, given the nature of the role, and whether, as we move forward, because there are other examples in defence where we recruit from civilians because they are best qualified and best placed, the time has come to look again at that requirement?

Baroness Goldie Portrait Baroness Goldie (Con)
- Hansard - - - Excerpts

I cannot give my noble friend the certainty of the assurance that he seeks, but I indicated that the rank was decided based on the current rank range of the single service provost marshal. We are open to revisiting the rank of provost marshal for serious crime—that is one of the recommendations in Henriques—and we would intend to review the post three years after the unit is operational. That is a sensible review period to allow some time to elapse. We want to ensure that the post remains aligned with the level of responsibility that is implicit in the role and the relevant and recent skills and experience of the postholder, and that it remains open to all three services to compete for. I can say to my noble friend that there is continued thinking on this, but I cannot at this stage provide him with the certainty that he seeks.

I have tried to address the points that have arisen and I hope that I have covered them all. In these circumstances, I ask noble Lords not to press their amendments.

Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD)
- Hansard - - - Excerpts

Perhaps I might draw to the Minister’s attention her amendment, which states in subsection (3)(b) of the proposed new clause:

“The Provost Marshal for serious crime has a duty, owed to the Defence Council, to seek to ensure that all investigations carried out by the tri-service serious crime unit are free from improper interference.”


Does she not agree that that is miles away from the formulation proposed by Sir Richard Henriques, as stated in Amendment 43, that the duty is to

“ensure all investigations are operationally independent from the military chain of command”?

I have tried to point out that we have got away from the military chain of command in the justice system and that justice comes first, before discipline, in that area—individual justice. Does the Minister not see the difference in the wording, and how much stronger is Sir Richard Henriques’ formulation?

Baroness Goldie Portrait Baroness Goldie (Con)
- Hansard - - - Excerpts

I say to the noble Lord—and I do not want to reprise everything that I have said—that we recognise the different characteristics within the service justice system that are not necessarily a part of the civilian system. We have to acknowledge that, as I indicated, it is not easy to just place things in silos. If something happens on an overseas operation, the chain of command may have to take action. That is why we talk about “improper interference”. I think that is an important distinction. What we are placing upon the provost marshal and the Defence Serious Crime Unit is the obligation to be independent and to seek to ensure the independence of the investigation.

However, we also have to acknowledge the reality of the environment in which these individuals are operating. That is why the Government have deliberately chosen the phrasing they have. I said earlier that there is nothing innovative about that phrasing; it deploys existing text from previous Acts. But I suggest to the noble and learned Lord that it would be unwise to place on the provost marshal obligations that are beyond the wit of the provost marshal to discharge. Equally, it would be wrong to condemn the chain of command for taking action in the early stages of an incident which the chain of command may have had no alternative but to take to protect personnel, to look after safety, to preserve evidence or whatever. That is why the Government prefer the phrasing they have adopted.

Lord Thomas of Cwmgiedd Portrait Lord Thomas of Cwmgiedd (CB)
- Hansard - - - Excerpts

May I ask one question? I asked: why does the Bill contain no institutional provisions to protect the independence? Maybe the Minister needs a little more time to think about this and look at what protection is given in relation to the civilian police. I would be grateful if she could write with an answer about the institutional support that backs up independence.

Baroness Goldie Portrait Baroness Goldie (Con)
- Hansard - - - Excerpts

I hear the noble and learned Lord. I think there is an acceptance within the service justice system that there is operational independence. I have had that confirmed to me by military police officers, particularly those investigating senior ranks and above their rank. They have not felt inhibited. They have not felt constrained. They have absolutely done the work they have needed to do. But I will reflect on the noble and learned Lord’s remarks and see whether I can offer any comfort.

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Moved by
39: Clause 11, page 23, line 26, leave out “and service police forces,” and insert “, service police forces and the tri-service serious crime unit,”
Member’s explanatory statement
This amendment would make consequential provision in connection with the new Clause proposed by Baroness Goldie to be inserted after Clause 11.
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Moved by
42: After Clause 11, insert the following new Clause—
“Framework for establishment of tri-service serious crime unit
(1) The Armed Forces Act 2006 is amended as follows.(2) In section 365A (Provost Marshals: appointment), in subsection (1), after “force” insert “, or to be Provost Marshal for serious crime,”.(3) In section 115A (Provost Marshal’s duty in relation to independence of investigations)— (a) in subsection (1), for “This section” substitute “Subsection (2)”;(b) after subsection (2) insert—“(2A) The Provost Marshal for serious crime has a duty, owed to the Defence Council, to seek to ensure that all investigations carried out by the tri-service serious crime unit are free from improper interference.”;(c) in subsection (3), at the end insert “or (as the case may be) the unit.”(4) In section 375 (definitions relating to police forces)—(a) in the heading, after “to” insert “the service police and other”;(b) after subsection (1) insert—“(1A) In this Act the “tri-service serious crime unit” means a unit under the direction of the Provost Marshal for serious crime, each member of which is a member of a service police force.”(5) Schedule (Tri-service serious crime unit) makes further provision about the tri-service serious crime unit and the Provost Marshal for serious crime.(6) The Secretary of State may by regulations made by statutory instrument make such provision amending or revoking any provision of subordinate legislation made before the passing of this Act as appears to the Secretary of State to be appropriate in consequence of any provision of this section or Schedule (Tri-service serious crime unit).(7) Regulations under subsection (6) may include transitional provisions or savings.(8) A statutory instrument containing regulations under subsection (6) is subject to annulment in pursuance of a resolution of either House of Parliament.(9) In subsection (6)“subordinate legislation” means—(a) subordinate legislation within the meaning of the Interpretation Act 1978,(b) an instrument made under an Act of the Scottish Parliament, or(c) an instrument made under Northern Ireland legislation.”Member’s explanatory statement
This amendment and the amendment in the name of Baroness Goldie to insert a new Schedule after Schedule 4 would make provision in connection with the establishment of a tri-service serious crime unit and with regard to the functions of the Provost Marshal for serious crime who is to be the head of that unit.
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Moved by
Baroness Goldie Portrait Baroness Goldie
- Hansard - - - Excerpts

45: After Schedule 4, insert the following new Schedule—

“TRI-SERVICE SERIOUS CRIME UNIT
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Moved by
46: Clause 13, page 26, line 11, leave out “service police force” and insert “relevant body”
Member’s explanatory statement
This amendment would make consequential provision in connection with the new Clause proposed by Baroness Goldie to be inserted after Clause 11.
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I sometimes think that clear exposition of these things in a way that is understandable and makes sense of policy would be of benefit not only to our Armed Forces but to those of us seeking to scrutinise legislation and to make it in a way that helps and makes sense to people. In that way, we can turn to our Armed Forces, now and in the future, and say, “We recognise that mental health has been a problem and that duty of care is a problem. This is what is happening, this is the amount of money that is being spent and these will be the benefits of that.” I think that all of us would welcome some clarity about all that from the Minister in her response.
Baroness Goldie Portrait Baroness Goldie (Con)
- Hansard - - - Excerpts

My Lords, I think we all found that a fascinating discussion. I will say later in my remarks that I indicated during the passage of the overseas operations Bill that I felt that some of these issues would be worth revisiting in the Armed Forces Bill. I am very grateful to the noble Lord, Lord Dannatt, for raising the issues. I will address the points on which he specifically sought clarification later in my speech, but I pay particular tribute not just to the content of your Lordships’ contributions but to the emotional sentiment and the calibre of that sentiment, as so eloquently expressed by the noble Lord, Lord Robertson.

These important amendments centre on the issue of service personnel and mental health. As I said, I am very grateful to be able to look at these amendments. I accept that the amendments in the name of the noble Lord, Lord Dannatt, are well intended. Amendment 48 is supported by the noble and gallant Lord, Lord Houghton of Richmond, the noble Lord, Lord Coaker, and the noble Baroness, Lady Brinton, while Amendment 66A is supported by the noble and gallant Lords, Lord Stirrup and Lord Boyce, with the noble Lord, Lord Coaker, lending his weight as well.

I also extend my gratitude to the right reverend Prelate the Bishop of St Albans, whose Amendment 60 highlights the potential harmful impact that addictive gambling could have on our service personnel. His amendment is supported by the noble Lords, Lord Browne of Ladyton and Lord Foster of Bath. The right reverend Prelate’s determined pursuit of the potential harm of addictive gambling is acknowledged and admired. I assure him that I have looked at the research he referred to, which I shall refer to when I address his amendment.

Amendment 48 seeks to ensure that the Government make provision for additional mental health support, including for service personnel affected by the United Kingdom’s withdrawal from and the Taliban takeover of Afghanistan in 2021. The noble Lord, Lord Dannatt, asked about Afghanistan and the effect of Operation Pitting on those who participated. I am not dodging the issue, but as yet there is no clear evidence to support what mental health impact the current Afghanistan situation is having. The MoD is prepared with comprehensive services and support for everyone who may have been affected by this situation.

The noble Lord, Lord Dannatt, specifically raised the issue of suicides. The MoD has begun the defence suicide register. It relates to all suicides across defence, including those relating to Afghanistan. It is anticipated that this review or register will be released in spring 2022. I hope that provides the noble Lord with some reassurance that active attention is being directed to this.

It is MoD policy that mental health should be properly recognised and appropriately handled, and that every effort should be made to reduce the associated stigma. The MoD recognises that mental ill-health can be a serious and disabling condition, but one that can be treated through education, training, diagnosis and specialist care. We have a resilient workforce and are focused on the prevent space all the time, not just with current events. I will explain to your Lordships what we do now. I thank the noble Lord, Lord Coaker, who said that, time was, we did not really talk about these issues. I say to him: we want to talk about them now, we can talk about them now, and that is what we should do.

Every year the MoD publishes the United Kingdom Armed Forces Mental Health bulletin, which provides a summary relating to Armed Forces personnel seen in all military healthcare services—primary care and specialist mental health care—for a mental health-related reason. It provides a wider picture of mental health among Armed Forces personnel. The noble Lord, Lord Coaker, justifiably asked about the level of need. That annual bulletin is a useful indicator of level of need.

The noble Lord, Lord Coaker, also asked for an overall figure of resource applied to the mental health support given to service personnel and veterans. I will inquire and see what I can find out. I undertake to write to the noble Lord, and I shall place that letter in the Library.

In June 2021, the annual UK Armed Forces Mental Health bulletin showed that the mental health of UK Armed Forces personnel is

“broadly comparable to that seen in the UK general population”

and that the rate of mental ill-health

“for those needing specialist mental health treatment was lower in the UK armed forces than that seen in the UK general population.”

The noble Lord, Lord Dannatt, referred to the helpful description that I believe my ministerial colleague for defence personnel and veterans used: the “gold standard” of what we try to do. I think we do have a gold standard in relation to the provision of mental health support for our Armed Forces and veterans. I am going to take some time to explain what we do, because it is important that I share with your Lordships as much information as I can. All Armed Forces personnel are supported by dedicated medical services, including mental health support. The MoD works with the single services, Defence Medical Services and other stakeholders to promote mental fitness, prevent ill health and reduce stigma. The noble and gallant Lord, Lord Houghton, and the noble Viscount, Lord Brookeborough, quite rightly raised that important issue.

Each of the single services provides through-career mental resilience and stress management training, including a defence course for senior officers. Armed Forces personnel who experience a traumatic event are supported through the trauma risk management process. The MoD has also produced the HeadFIT website to encourage the good management of mental fitness. An online mental health fundamentals course is available to all Armed Forces personnel and, from 11 October this year, the annual mental fitness brief is mandated activity for all Armed Forces personnel, delivering an understanding of mental health and well-being, stress management, how to transform stress into mental resilience and where personnel can seek appropriate help.

The MoD provides a 24-hour mental health helpline for Armed Forces personnel and their families delivered by Combat Stress. Togetherall allows Armed Forces personnel access to its 24-hour staffed digital forum, and the Samaritans deliver bespoke workplace training and a peer support pocket guide providing guidance on how to talk to and support colleagues struggling to cope with mental ill-health.

One question that arose was: what processes are in place to identify those who are vulnerable and most at risk of developing mental illness? No system can detect every individual at risk of mental illness. Nevertheless—I say this to reassure the noble Lord, Lord Robertson—measures are in place to increase awareness at all levels and to mitigate the development of operational stresses. These include pre and post-deployment briefing and the availability of support, assessment, and, if required, treatment both during and after deployment. This is available to all personnel, whether regular or mobilised reservists.

Going back to the important issue of stigma, what is the MoD trying to do to help address that and people’s reluctance to accept or seek help? Stigma is not, as your Lordships will understand, an issue only for the UK Armed Forces. It accompanies mental health issues among the general population. But, from September this year, all Armed Forces personnel receive a mandatory annual mental health and well-being briefing. It focuses on increasing awareness of mental health and the personal barriers that prevent some personnel seeking support.

We move on to the important issue raised by a number of noble Lords: the transition. What do you do when you propose to go from active service to the status of veteran? What support is given to service leavers with mental health issues to ensure that they do not slip through the gaps in that transition? Where personnel leaving the Armed Forces have an enduring need for mental health care, we work in partnership with the NHS to ensure continuation of care. The MoD’s departments of community mental health are accessible for up to six months after discharge to help veterans during their transition period.

An important question was raised by the noble Viscount, Lord Brookeborough: what are we doing to support the mental health needs of veterans? Wherever they live in the UK, all veterans are able to receive specialist mental health support if they need it. The MoD and the Office for Veterans’ Affairs work in close partnership with a variety of different organisations, including the NHS and the devolved Administrations, who are responsible for health care, including mental health care, for veterans, and service charities.

The through-life mental health support now provided to Armed Forces personnel will also have a positive impact on the veterans of the future. We are ensuring that Armed Forces personnel have the psychological resilience training they need to recognise mental ill-health in themselves and those around them and know how to manage it.

What about the supporting background, which is also critical? The majority of Armed Forces personnel who seek mental health care are actually managed by their GP. However, some with more complex needs will receive treatment from specialist mental health care providers. MoD specialist mental health services are configured to provide community-based mental health care in line with national best practice. This is done through 11 military departments of community mental health across the UK that provide outpatient mental health care. These DCMH teams comprise psychiatrists, mental health nurses, clinical psychologists, senior mental health practitioners and mental health social workers. A wide range of psychiatric and psychological treatments are available, including medication, psychological therapies and environmental adjustment, where appropriate.

For those personnel requiring medical intervention, the Defence Medical Services provide a responsive, flexible, accessible and comprehensive treatment service. Some 10.5% of UK Armed Forces personnel were seen in military healthcare for a mental health-related reason in 2021. This figure includes both personnel seen by their GP and those who required the support of specialist mental health services. We also do more out in the broader community. The Defence Medical Services set up Project Rebalance, a self-referral provision for serving personnel seeking mental health care who are pregnant or are on maternity leave. In February 2021, the Defence Medical Services set up another self-referral provision—Project Direct Support—for DMS personnel seeking mental health care while being engaged in clinical front-line duties during Covid.

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Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, I support both amendments. I added my name to Amendment 49; it was merely an omission not to have added my name to Amendment 63 since both amendments, as we have heard, are important. At Second Reading, I spoke about the situation with the Gurkhas; my only experience of them is visiting once while on the Armed Forces Parliamentary Scheme, so I have no interest to declare in the way that the noble Lord, Lord Lancaster, has.

However, like other noble Lords, I am deeply aware of the importance of the Gurkhas and the service they give. We need to think what signals we send if we say, “You can work with us; you can put your life on the line and die for us. But if you wish to have indefinite leave to remain, we will charge you huge sums of money, as if you were simply coming as a third-country national with no relationship to our country.” People who have been serving with us, such as the Gurkhas and Commonwealth citizens working within our Armed Forces, should be given the opportunity to have indefinite leave to remain on an at-cost basis, as we ourselves would when we sign up for a passport. We do not get our passports free but we pay the cost.

Earlier on, the Minister suggested that the MoD has certain duties, but this is not currently a duty. The MoD and the Home Office could do something relatively straightforward about this and make a huge difference in the message that we send to service personnel from Commonwealth countries.

Finally, I add a word in support of the comments of the noble and gallant Lord, Lord Craig of Radley, about Hong Kong. This is partly because my noble friend Lord Alton of Liverpool was hoping to speak on this amendment in support of the service personnel from Hong Kong; he sat through the first group and most of our next debate but has had to leave for another meeting. It is very important that we think again about the commitments to Hong Kong. As the noble Lord, Lord Dannatt, said, it is slightly an issue of history and timing that the withdrawal from Afghanistan has happened in the middle of the passage of the Bill, and it sends certain messages. However, that withdrawal and the situation in Hong Kong again mean that we have certain duties. It would behove the MoD and the Home Office to look generously also on service personnel from Hong Kong.

Baroness Goldie Portrait Baroness Goldie (Con)
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My Lords, I thank your Lordships for their contributions on an issue that might look fairly contained but is, none the less, important. I will look first at Amendment 49, on fees for indefinite leave to remain, which was moved by the noble Lord, Lord Coaker, and supported by the noble and gallant Lord, Lord Craig of Radley, the noble Lord, Lord Dannatt, and the noble Baroness, Lady Smith of Newnham. I make clear immediately that the Government highly value the service of all members of the Armed Forces, including Commonwealth nationals, and Gurkhas from Nepal, who have a long and distinguished history of service to the UK, both here and overseas.

Your Lordships will be aware that the Home Office, not the MoD, has a specific set of Immigration Rules for Armed Forces personnel and their dependants, the Appendix Armed Forces. Under these rules, non-UK service personnel enlisted in the regular Armed Forces, including Commonwealth citizens, and Gurkhas from Nepal, are granted an exemption from immigration status for the duration of their service to allow them to come and go without restriction. They are therefore free from any requirements to make visa applications or pay any fees while they serve, unlike almost every other category of migrant coming to work in the UK.

Non-UK service personnel who have served at least four years or been medically discharged as a result of their service can choose to settle in the UK after their service and pay the relevant fee. As my noble friend Lord Lancaster indicated, the time before discharge when such settlement applications can be submitted has been extended this year from 10 to 18 weeks. Those applying for themselves do not have to meet an income requirement, be sponsored by an employer or meet any requirements regarding their skills or knowledge of the English language or of life in the UK. That again puts them in a favourable position compared with other migrants wishing to settle here.

The noble Lord, Lord Dannatt, asked specifically about the situation of Afghan interpreters and sought to draw an analogy between them and the group that we are discussing under these amendments. ARAP and the ex-gratia scheme before it were set up in recognition of something very simple: the serious and immediate danger locally engaged staff would face, were they to remain in Afghanistan. The unique and perilous situation that this group of Afghans faced, because of their support for Her Majesty’s Government, required a bespoke solution to meet that immediate and extreme need.

I can tell the noble Viscount, Lord Brookeborough, that specific Immigration Rules are already in place for our non-UK service personnel and veterans, as I have outlined, to ensure that those who choose to can remain in the UK after service. Some choose to take up that offer, while others return to their original nation, but that personal choice is not overshadowed by risk of persecution or even death, such as would be faced by Afghan citizens if they returned to Afghanistan.

Lord Dannatt Portrait Lord Dannatt (CB)
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I hope the noble Baroness will forgive me for interrupting. I much appreciate her point, but my point was not in this instance to do with interpreters. I am very grateful for the work of the Ministry of Defence in enabling many of our interpreters to come to this country, and more is still to be done. I was referring to members of the Afghan National Army who have found their way back to this country through the evacuation flights. As soldiers of another nation, they are going to be accorded better rights of residence in this country than foreign and Commonwealth soldiers who have served as members of the British Armed Forces.

Baroness Goldie Portrait Baroness Goldie (Con)
- Hansard - - - Excerpts

I referred to locally employed citizens in Afghanistan. It may be that some members of the Afghan army felt at risk and that their lives were imperilled, and therefore sought to return to this country. We would bring them under the overall umbrella of help we felt it necessary to provide people who came here because they feared for their lives—and they were people with whom we had a relationship. So I suggest that there is not a complete analogy in the noble Lord’s description.

We recognise that settlement fees place a financial burden on non-UK serving personnel wishing to remain in the UK after their discharge, and the strength of feeling from parliamentarians, service charities and the public about this issue. As has already been indicated, the Ministry of Defence, together with the Home Office, ran a public consultation between 26 May and 7 July 2021 regarding a policy proposal to waive settlement fees for non-UK service personnel. The noble Lord, Lord Tunnicliffe, asked when we will get an outcome from that. I can say to him that 6,398 responses were received. These are having to be sifted through. The results are currently being considered and the Government will publish their response in due course. The Government are aware that there is a certain anticipation in the outside world to know their response.

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Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, I rise briefly merely to add the support of the Liberal Democrat Benches to the three amendments. I completely understand that, if there are discussions between the Home Office, the MoD and the noble Lords, Lord Lexden and Lord Cashman, about Amendments 57 and 58, I will take that as read and assume that we do not need to discuss them further at this stage. Obviously, we on these Benches support the amendments.

As the noble Lord, Lord Coaker, said in his opening remarks, there is a set of issues that we clearly still need to think and talk about, and injustices that need to be righted. So, while Amendments 57 and 58 may not come back to us, I assume that the amendment from the noble Lord, Lord Coaker, will come back in some form. We will support it.

Baroness Goldie Portrait Baroness Goldie (Con)
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My Lords, this may have been a short debate but I do not think that any of us can doubt the passion and commitment that have been evident in the contributing speeches.

I thank the noble Lord, Lord Coaker, for moving Amendment 50 and the noble Lords, Lord Cashman and Lord Lexden, for tabling Amendments 57 and 58. All three amendments have undoubtedly been tabled with deep compassion and humanity, with the intent of righting a past wrong. They are all concerned about the historical effect of the criminalisation of homosexual behaviour in the Armed Forces. As the Minister in the defence department responsible for diversity and inclusion, I feel a personal commitment to deliver improvement; I say that in a manner that I hope reassures noble Lords.

Amendment 50 seeks to place an obligation on the defence department to commission a comprehensive report on the number of service personnel who were dismissed, discharged or charged with disciplinary offences due to their sexual orientation or gender identity, and to make recommendations for compensation and restoration. I am pleased to remind the Committee that the Government accept entirely that the historical policy prohibiting homosexuality in the Armed Forces was absolutely wrong. The noble Lord, Lord Coaker, is right: there is a sense of shame. We recognise this and are looking, where appropriate, to address the historical injustice suffered by members of the LGBT+ community as a consequence.

Our priority is effectively to look at what the Government can do to better understand the impact of pre-2000 practices on LGBT+ veterans and swiftly put in place a series of steps to address past wrongs. We acknowledge that many individuals, including the noble Lord, Lord Coaker, would like to understand how many people were affected by past practices. This is not a straightforward task. I must say, focusing solely on it would detract from our primary goal of righting historical failures, which is what we are engaged in doing and, I hope, what the Bill reflects.

While we agree that identifying how many people were affected has value, this must not overtake our efforts to find further tangible ways to do right by those who were treated unjustly. We therefore resist the amendment because it will constrain the work already under way now. Having said that, the MoD is working at pace to identify the cohort of individuals affected due to this policy. This will not be a quick process; it will take time.

We are also investigating historical records to see whether we can establish members of the Armed Forces who were encouraged to leave the Armed Forces due to their sexual orientation and gender identity. However, this latter cohort, as your Lordships will understand, will be much harder to identify, given that their personal files may not explicitly link their departure to their sexual orientation and gender identity.

In February this year, we announced the restoration of military medals to Armed Forces personnel discharged on the basis of their sexuality. Since February, we have received a number of applications in response to that well-publicised announcement. These are being actively considered.

On the scope of current legal disregards, as the noble Lord, Lord Cashman, indicated, the Home Office and the MoD are working together to consider whether any further services offences can be brought within the scope of the disregards scheme. The current legislation—the Protection of Freedoms Act 2012—is very specific as to the offences that can be considered for a disregard, with the scope being limited to offences that have since been abolished or repealed and that criminalised homosexual activity. I am sure that many of your Lordships will be aware that our decision to address this issue has drawn the support of organisations such as Fighting With Pride and Stonewall, and we continue to engage with these and other stakeholders as we work together to make it clear that the military is a positive place to work for all who choose to serve.

As noble Lords have heard, there is a significant amount of cross-government activity, which includes, but is not limited to, working with the Cabinet Office, the Office for Veterans’ Affairs, the Ministry of Defence and the Home Office. I thank the noble Lord for attending the meetings, which I attended with my colleague and noble friend Lady Williams of Trafford. I hope that the noble Lord, Lord Coaker, is reassured by what I have been able to say today, and will agree to withdraw his amendment.

As we know, Amendments 57 and 58 seek to extend the disregard and pardon schemes to include all service discipline offences, whether repealed or not, for which gay service personnel were convicted or cautioned. They also seek, where applicable, to provide posthumous pardons to deceased service personnel. I am grateful to the noble Lord, Lord Cashman, for indicating that he will not press these amendments. As I just said, on the scope of current legal disregards and pardons, the Home Office and the MoD are working together to consider whether any further services offences can be brought within the scope of these schemes.

There is a significant amount of cross-government activity to resolve the issue of historic hurt. As the noble Lord, Lord Cashman, indicated, we are already in conversation with him—as well as with the Home Office and Professor Paul Johnson of York University—to find the best course of action to implement the necessary legislation to address this issue. It is complex; there are technical complications in understanding which Acts apply and how we must draft remedial provisions. We must be mindful to mitigate the potential risks that a whole-scale adoption of these amendments in both this Bill and the Police, Crime, Sentencing and Courts Bill may cause.

This will not be a straightforward task. We need to continue to develop cross-departmental policy and correctly identify the approach to be taken. We therefore resist the amendment because this Bill is not the most suitable place to make these amendments; rather, the proper legislative vehicle is the Police, Crime, Sentencing and Courts Bill, where the scheme can be properly and effectively extended and managed. I think that the noble Lord, Lord Cashman, will have gathered from the attitude of my noble friend Lady Williams of Trafford that he has a very willing pair of hands prepared to look at all aspects of this.

I remind noble Lords that Clause 18 of this Bill seeks to amend the pardons scheme to ensure that those who served in the Army and the Royal Marines before 1881 and were convicted of now-abolished service offences are posthumously pardoned. I suggest that these actions demonstrate the full commitment made by this Government to rectifying what I earlier called the shameful and wrongful treatment of those who have served. I therefore assure the noble Lord, Lord Cashman, and my noble friend Lord Lexden, that the Government are determined to redress this historic slight—“slight” seems an inadequate word; I think it is an historic injustice—against our brave and loyal servicepersons.

I hope that your Lordships have taken comfort from what I have said today: that far-reaching and consequential work is going on in this area. Naturally, the outcome of this work will never truly replace the hurt suffered by those affected. However, I hope that it will provide a degree of recompense and demonstrate that this House, this Government and this nation stand resolutely and proudly with both former and serving members of the Armed Forces who are drawn from across the LGBT+ community.

For these reasons, I hope that the noble Lord, Lord Coaker, will agree to withdraw his amendment.

Lord Coaker Portrait Lord Coaker (Lab)
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I thank the Minister for her response. Many people hearing it will be reassured not so much by the Government’s intentions and so on, but by what shone through: her honest answer and her clear determination to want to get something done. That is what is actually reassuring. I do not know whether I am supposed to say that as a Labour politician or noble Lord to a Conservative, but on this occasion there is, frankly, nothing that disunites any of us here. The noble Lords, Lord Lexden and Lord Cashman, have campaigned long and hard on these issues for much longer than I have. I hope they will also have been reassured by a government Minister who, instead of hiding behind weaselly words, talked about a sense of shame that our country should have—because it should. That reassurance gives me confidence that she will push this forward.

There are questions to be answered as to how far we will be able to get the Home Office to move, if it is the Home Office that needs to do so, and what legislation will eventually be passed. I do not really care which department is responsible for passing the legislation; what I am concerned about is that the legislation is passed. If it is the Home Office it is the Home Office, and if it is the Ministry of Defence it is the Ministry of Defence. This was a historical injustice. It is almost one of those things where you look back and cannot believe that it actually took place, but we are having to deal with many historical injustices at present. We cannot be judged on those but we can be judged on how we respond.

The only thing I would say to the Minister is that the restoration of the medals has not gone as quickly as it might have done and some of the other things are not going as quickly as they might. I accept there are huge difficulties. People will have been paid to leave the Army and all sorts of excuses will have been made, when the real reason was that they were pushed, bullied and intimidated out simply because of their sexuality. That is unacceptable. I do not know how many people there are; I read the figure of approximately 20,000 in the papers. But if it was 100 or 200—if it was 10,000, 15,000 or whatever—that does not alter the principle that we should be ashamed of what happened, but proud of the fact that we are now going to try and do something about it. I say to the Minister: can we please do it as quickly as possible, and not have this dragging out for years and years? We owe it to those who are still living and to the memory of those who are no longer with us. With that, I beg leave to withdraw the amendment.

Armed Forces Bill

(Limited Text - Ministerial Extracts only)

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Committee stage
Monday 8th November 2021

(2 years, 5 months ago)

Grand Committee
Armed Forces Act 2021 Read Hansard Text Amendment Paper: HL Bill 42-III Third marshalled list for Grand Committee - (4 Nov 2021)

This text is a record of ministerial contributions to a debate held as part of the Armed Forces Act 2021 passage through Parliament.

In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.

This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here

This information is provided by Parallel Parliament and does not comprise part of the offical record

Baroness Goldie Portrait The Minister of State, Ministry of Defence (Baroness Goldie) (Con)
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My Lords, I thank the noble Lord, Lord Coaker, for tabling Amendment 51, and the noble Lord, Lord Tunnicliffe, for so eloquently speaking to it. As has been explained, this amendment seeks to create through primary legislation a representative body for the Armed Forces that is similar in many respects to the Police Federation. It proposes that details of how the federation would operate are set out in regulations. I recognise the commitment of both noble Lords to the welfare of our Armed Forces, as other contributors have rightly acknowledged.

This has been an interesting debate. It has thrown up in broad terms the particular environment and context in which we ask our Armed Forces to operate, and it has disclosed some specific issues. Let me try to address some of the points raised. Clearly, the noble and gallant Lords, Lord Boyce and Lord Craig of Radley, and the noble Baroness, Lady Smith, have reservations. I think they were well articulated and suggest that they should be heeded.

To go to the context, the environment in which we ask our Armed Forces to operate, the Armed Forces have a unique role and can be called upon to carry out tasks that are clearly beyond anything that most other people would be asked to do in the course of their duties. What works for a civilian workforce such as the police will not necessarily work for service personnel. That is why the interests of Armed Forces personnel are already represented through a range of mechanisms, not least the chain of command. I will spend a short time outlining some of those provisions. We are currently, in fact, considering what more we can do in this space without compromising operational effectiveness.

The noble Baroness, Lady Smith, raised the issue of pay in general terms and made a particularly interesting point about whether the Armed Forces understand the structures. The Armed Forces’ Pay Review Body and the Senior Salaries Review Body provide independent annual recommendations on pay for the Armed Forces to the Prime Minister. The X factor addition to basic military pay, which is currently at 14.5%, recognises the special conditions of military life, including the limits on the ability of service personnel to negotiate on this issue. Processes are in place for personnel to make complaints about their pay or allowances. I would hope that, with the new ambience that now pervades the Armed Forces, people would be encouraged to articulate those concerns and ask questions of the very type the noble Baroness mentioned.

With regard to complaints more widely, the Service Complaints Ombudsman provides independent and impartial scrutiny of the handling of service complaints made by members of the UK Armed Forces regarding most aspects of their service life, and service personnel are able independently to approach the ombudsman or ombudswoman about a complaint which they do not want to raise directly with their chain of command. Support is provided to those who are making complaints or allegations and to those who are the subjects of such actions. In addition to this practical support, there is a range of internal and external welfare support for personnel to draw on if they need it as they go through these processes.

Improvements to the service complaints process are being progressed as a matter of policy, as the vast majority of these do not require primary legislation. For many other issues, the Soldiers, Sailors, Airmen and Families Association—SSAFA—the Royal Naval Association, the Royal Air Force Association, the Veterans Support Association and a host of other regimental associations and groups around the country have regular access both to the chain of command and to Ministers to represent their members’ interests.

Service personnel have their own voice on matters which concern them through the Armed Forces annual continuous attitude survey, which asks our people about all aspects of their service life. The results, which are published, are used to inform the development of policy and to measure the impact of decisions affecting personnel, including major programmes and the Armed Forces covenant.

Service personnel can also play an active role in the development of the policies which affect them. There are currently more than 50 diversity networks operating within defence at various levels. Most of these are run by volunteer members, with senior officer advocates and champions, and they can be consulted on matters which are likely to impact our people.

Noble Lords will understand that the well-being of our personnel directly contributes to the operational effectiveness of the Armed Forces. It is therefore important to the chain of command and to defence to both sustain and support the well-being of service personnel and their families and, where necessary, provide welfare support to resolve issues that might otherwise undermine well-being and impact on operational effectiveness.

That is why, during basic training, all service personnel receive details on how to identify welfare issues and how to get help, with refresher training provided during subsequent initial trade training. All regular and reserve officers also receive training during their respective commissioning course which teaches how their service provides welfare support and sets out their welfare roles and responsibilities as line managers. Once again, refresher training is provided throughout and welfare specialists are also on hand to provide advice to the chain of command and provide support to their personnel.

We recognise that some personnel and families may feel uncomfortable exposing welfare issues to the chain of command and, in some cases, issues may even arise as a direct result of conflict with the chain of command. My noble friend Lord Lancaster spoke in broad terms about that and the alternative channels available to complainants.

I therefore submit that, in these circumstances, service personnel have alternative mechanisms for raising and addressing welfare issues, giving them a voice independent of the chain of command. These include unit welfare staff, padres and confidential helplines, in addition to the service families federations and service complaints process that I referred to earlier. The noble Lord, Lord Tunnicliffe, referred to Australia, but Australia disbanded its armed forces federation in 2006.

The noble Lord also raised an issue about the recent Budget, in response to which I would say that as the department prioritises providing a wider range of supportive bodies and invests in training for service personnel throughout their service career, it would be misleading to quantify this in terms of budget lines as such. The department feels strongly that the interests of service personnel need to be protected and we take a varied approach by providing many strands to offer that protection. We cannot put a price on giving people a voice.

I hope that this explains clearly the rationale for the Government’s approach to ensuring that the interests of service personnel are protected and the provisions that exist. I trust that, following these assurances, the noble Lord will agree to withdraw his amendment.

Lord Tunnicliffe Portrait Lord Tunnicliffe (Lab)
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My Lords, one of the essential skills for survival in politics is being able to count. I recognise a 5-0 defeat when I hear one; it can also be pretty uncomfortable when the closest you get to support comes from the Government. But I ask noble Lords to pause and consider that the speech that the Minister just made was probably unthinkable 30 years ago. She at least took the generality that representation, through one mechanism or another, is necessary. We also have to take the generality that, much as we all are proud of the Armed Forces, we know that in some areas things are not as perfect as we would want.

The concept of representation will have its day. Clearly, that is not today. But on the ideas behind it, I am pleased that the Government, I think, conceptually see that it is necessary to make sure that there are appropriate mechanisms for representation. Over time—this will come up every five years—we will test the ground, because we as a party believe in representation.

There is an interesting concept about civilians in uniform. They are not civilians in uniform; clearly, they are different from civilians in that they have to put their lives on the line, and I accept that. However, I think that they are citizens in uniform and there need to be processes and a mechanism for their views to be made known. We talk about supporting individuals going to the ombudsman. That is a good thing. I think that there is a recognition that that might have to be more formalised and more powerful. We will see. I accept that we are apart on this issue. Nevertheless, we are not as apart as one might think. The idea of agency by individuals is one that will not go away, but it is certainly not an idea that should be forced on an unwilling institution.

I opened by saying that I wanted to hear what the Government had to say. I am pleased with the direction of their answer. I also said that we were interested in what noble and gallant Lords might say. I note what they said. Therefore, taking account of all those issues, I beg leave to withdraw this amendment and will not be bringing it back on Report.

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Lord Houghton of Richmond Portrait Lord Houghton of Richmond (CB)
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This amendment, which I do not particularly support or otherwise, would be an awful lot better placed if better evidence were available. There does not appear to be the relevant data. Personally, I am convinced that if that data were made available, it would re-establish in people’s minds and in society at large that the Armed Forces are one of the nation’s most successful organisations for social improvement among the people who join.

I fear that amendments such as this convey the impression that people enter the Armed Forces and then leave, at some later stage, damaged by the experience. That is far from the reality of the situation. Yes, some unfortunate people will struggle to find employment—some people struggle with second careers—but, by and large, people leave the Armed Forces both socially and professionally improved and go on to have highly successful second careers. So the publication of the evidence base would be hugely helpful in determining whether this sort of amendment was, in truth, required.

Baroness Goldie Portrait Baroness Goldie (Con)
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My Lords, this may have been a short debate, but it was interesting. Once again, I have no doubt about the commitment of the noble Lords, Lord Coaker and Lord Tunnicliffe, in taking an interest in these matters. Amendments 52 and 56 engage with the subject of, first, the number of veterans claiming universal credit, and secondly, Armed Forces champions.

I will deal with Amendment 52 first. The Government are delighted that the universal credit system has now been enhanced to allow the Department for Work and Pensions to collect information on how many universal credit claimants are veterans. The noble and gallant Lord, Lord Houghton, put his finger on the point: the all-important issue here is the data, which is not yet complete. It is still early days. The DWP is still building up its data base and working out what the data is telling them and how to make best use of it, including producing reports and making information public. This may well include making information available through the covenant annual report, as well as more routine data releases.

I understand that, as soon as decisions have been made, the DWP will write to the noble Lord, Lord Coaker, setting out its plans. I expect it to be able to do this early in the new year. Further, the MoD will keep a close eye on this area as well. We are also interested in the data being collected, so I, too, look forward to the DWP’s response on this matter. With that assurance, I hope that the noble Lord will feel able to withdraw his amendment.

I will now address Amendment 56, again in the name of the noble Lord, Lord Coaker, which seeks to put into the Bill a specific number of Armed Forces champions who would be in place at all times. The number of Armed Forces champions, their specific roles and how and where they are deployed are detailed day-to-day operational matters for the DWP.

The DWP’s long-standing, undoubted and profound commitment to and support for the Armed Forces covenant is clear. Like the rest of this Government, my colleagues there do everything that they can to provide members of the Armed Forces community with the help and support that they deserve. I thought that the noble and gallant Lord, Lord Houghton, made an important point about the impressions that we wish to create and what the perceptions might be. Armed Forces champions are key in supporting and enabling the DWP to provide that help and support, but setting out a specific number in the Bill will limit the DWP’s flexibility to adjust the support to meet levels of need and will do nothing to enhance the current support provided by the DWP to veterans and others.

The DWP works very closely with the MoD and the Office for Veterans’ Affairs to help ensure that those using its services get the help and support that they need. Earlier this year it introduced a new model. Once again, it is important to put all this into shape so that there is context. It introduced the new model to transform the support that the DWP provides to members of the Armed Forces. This change of approach by the DWP was not subjective; it reflected feedback that the department had received, including from formal research and from those representing members of the Armed Forces community.

The new model was designed to ensure that veterans and others are served in a more intelligent and effective way. It enables the department to better match available resources with the demand for its services. The new model has built on the successful network of Armed Forces champions, which had been in place within the DWP for a number of years.

As part of the new model, the department has introduced for the first time a dedicated Armed Forces role at middle management level. These roles have responsibility for building capability and sharing best practice on Armed Forces issues across the DWP network, as well as building networks with the tri-services. It is important to understand the relevance and significance of that conjunction of activity.

There is a lead role in each of the 11 Jobcentre Plus groups and, as part of its work, it oversees 50 Armed Forces champions stationed across the Jobcentre Plus network. I know that the noble Lord, Lord Tunnicliffe, was critical of that level of champions, but the work of the champions cannot be viewed in isolation, for the reasons that I have just described.

The champions have specific responsibility for supporting claimants who are members of the Armed Forces community. Under the new model of support, the champions also have a front-line role and will personally handle some claims for the first time, supporting veterans into work and helping to resolve some of the more complex cases where necessary. I can tell the noble Lord, Lord Tunnicliffe—I think the noble Baroness, Lady Smith, also raised this point—that there is at least one Armed Forces champion in each of the 37 Jobcentre Plus districts.

The new model has been welcomed by the department’s Armed Forces stakeholders, who have been more interested, to be honest, in the structures and quality of services than in actual numbers. The DWP has listened to what stakeholders and researchers have said. Putting in place the new lead roles will help to improve the co-ordination of support activity and facilitate the sharing of best practice between the champions, and more widely across the department. The new roles also provide the opportunity for more pro-active work with the three armed services on resettlement and recruitment. Again, the noble and gallant Lord, Lord Houghton, took an interest in this issue.

In the early stages of introducing the new model, the DWP talked to a number of stakeholders, including Armed Forces charities and other groups, about the planned structures and roles. It explained how these would work in practice for stakeholders, as well as for individual claimants and their families. Now, almost six months in, the change seems to have settled in well and continues to be well received.

The DWP’s support is not limited to those with a formal Armed Forces role. For example, the new model enables the dedicated Armed Forces roles to complement the wider investment the department had already made during the pandemic in the recruitment of an additional 13,500 work coaches, bringing the total to 27,000. The Committee may be interested to know that every work coach receives specific training to support members of the Armed Forces community, and that an important part of the work of the new champions and lead roles is to build capability on Armed Forces issues across the whole department. This is not just across the Jobcentre Plus network but more widely, for example in DWP service centres.

As your Lordships will understand, there are many DWP staff, some based in individual jobcentre offices, who will be the local expert on Armed Forces issues and will work with those in the dedicated roles also to the support the Armed Forces. Many of these staff will have experienced service life themselves, either directly or through friends and family. They will use this experience in their work.

As within other parts of its business, the DWP will monitor and evaluate the new model, and will use the information gathered from this work to shape the support provided. These new arrangements come on top of other support that is already in place. For example, veterans are given early entry to the work and health programme, and if we can use service medical board evidence, a severely disabled veteran does not have to undergo additional examinations for employment and support allowance and universal credit purposes.

If the intention of this amendment is to make sure that the DWP always provides an Armed Forces champions service, it is unnecessary. The the DWP, through its words and actions, has consistently demonstrated its commitment to support veterans and members of the Armed Forces community. I accept that this is unintentional, but the amendment would constrain what are rightly day-to-day operational decisions for DWP managers. For example, holding open a post for a short while during a recruitment exercise would become unlawful. I know that is not the noble Lord’s intention, but we should let the expert delivery managers in the DWP manage their resources as they see fit.

With that reassurance of the scale of support within the DWP for Armed Forces personnel and veterans, I hope nthe noble Lord will be prepared to withdraw his amendment.

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Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, I support these amendments, to which I have added my name. As the noble Lord, Lord Coaker, pointed out, they very much draw on the House of Commons Defence Select Committee’s report. In a sense, that was a cross-party report. The signatories in this place come from the Labour and Liberal Democrat Benches, although of course Sarah Atherton, the MP for Wrexham, who was the force behind the report, is a Conservative. We potentially have cross-party and cross-Chamber support for a range of issues brought forward in these amendments.

If these amendments are not necessary, we would be delighted to hear the Minister say, as the noble Lord, Lord Coaker, invited her to do, that whatever the Secretary of State has been doing today in bringing the service chiefs together will somehow deal with all the issues. That would be fantastic, but the evidence seems rather concerning, to put it at its mildest. The noble Lord, Lord Coaker, talked about the number of female service personnel and veterans who had come forward. The report also talks about delays in the complaints procedure. It says that the performance target for the Armed Forces is apparently that

“90% of service complaints should be resolved within 24 weeks. This target has not been met by any of the services in recent years, and the pandemic has increased delays in the system.”

Maybe the pandemic has made it even worse, but in 2020 only 24% of the complaints brought in the Royal Navy were dealt with within 24 weeks, although it had a much better record in previous years. In 2019, before the pandemic, the Army’s statistics were only 32%. Those figures seem entirely inappropriate.

Could the Minister tell the Committee what is being done to try to resolve the complaints system? It does not seem to be working at the moment. What is even more shocking, in addition to the delays, is that the people who have brought complaints have been extremely dissatisfied with the outcomes and the way they were kept informed about progress. What is going on? If the Minister and her team are unable to give the Committee good answers, these amendments seem the very minimum of the recommendations that came forward from HCDC that we would want to see in the Bill to ensure that the service complaints system is improved.

Noble and gallant Lords raised concerns about the chain of command under the Armed Forces federation proposals in an earlier amendment. I understand that. I do not think that anything in these amendments would undermine the chain of command, but there are suggestions in the House of Commons Defence Select Committee’s report and in Amendment 66B that say essentially that if service personnel bring cases against somebody in the chain of command, that has to be looked into. It is hugely important to acknowledge that the argument about the chain of command cannot be used in any way to negate the complaints that have been brought by service personnel, particularly women. I hope the Minister will take these amendments in the spirit in which they are brought, which is in no way to criticise the MoD specifically but to say that these issues need to be explored and that the service complaints procedures need to be speeded up if that is possible, which we hope it is.

I will say a brief word about Amendment 55, in case the noble and gallant Lord, Lord Houghton of Richmond, feels the need to say that we should not be talking down veterans or the experience. I do not believe that the intention of the previous set of amendments on universal credit was to say that there is particular problem and somehow veterans are coming out as being poorly treated; rather, it was to understand the situation for veterans. Again, the House of Commons Defence Committee report seems to suggest that there are some problems for women transitioning out of the Armed Forces that may be a little bit different from those experienced by the men. If we can understand the experience of veterans and have a report on that, we can try to improve the situation for all veterans.

These amendments are intended to be positive and constructive, and I hope the Minister takes them in that light.

Baroness Goldie Portrait Baroness Goldie (Con)
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One would think that one would get into a routine of “Off with the mask, slug of the water, stand at the Dispatch Box”, but it still comes as a ritual.

Amendments 53 to 55 and 66B in the name of the noble Lord, Lord Coaker, and promoted so ably by the noble Lord, Lord Tunnicliffe, cover four strands: promoting flexible service, making binding the recommendations of the Service Complaints Ombudsman, monitoring the experience of veterans with protected characteristics, and considering whether to establish an independent defence authority. These are important amendments, and I reassure the noble Baroness, Lady Smith, that the Government understand that Members are trying to make constructive contributions.

The amendments concern a broad range of topics but, as has been identified, each is based on recommendations of the House of Commons Defence Select Committee report, Protecting Those Who Protect Us: Women in the Armed Forces from Recruitment to Civilian Life. The noble Lord, Lord Coaker, was interested in what happened at the convened meeting of the Army Board this morning. I think he will understand that I am constrained in what I can say, because these proceedings are confidential. I hope he realises that the Secretary of State, his Ministers and the Army do want to be sure that they are proactive in addressing issues which, as noble Lords have indicated, can be upsetting when they surface in the media and can cause concern. Without being able to impart any specific details, I reassure your Lordships that this morning’s meeting was very constructive, with what I thought were some excellent suggestions coming forward.

I believe that the motive behind the amendments is driven by a subject which I am deeply passionate about and wholeheartedly supportive of: women in the Armed Forces and, indeed, women in defence. To that end, I want to say a few words about that Select Committee inquiry and to thank the committee for its thorough work and report. That work has been enhanced by the testimony of current and former servicewomen, whose experiences have greatly assisted the inquiry. Their courage and fortitude were not just admirable but inspiring, and I extend my thanks to all those women who came forward to such positive effect. I acknowledge that, on too many occasions in the past, Defence has failed to provide women with adequate support. It will not surprise your Lordships to hear me say that.

We have examined the Defence Committee’s report in minute detail. We want to use it to build on our improvements and to ensure that our response is substantial and informed. We recognise that the lived experience for many women is not yet good enough, and this has to change.

The noble Lord, Lord Coaker, rightly identified the report as pivotal. I assure the Committee that the Secretary of State is absolutely committed to delivering against its findings. Indeed, he intends to go further. The Secretary of State has personally discussed the initial draft of our response to the report with members of the servicewomen’s networks, and this has led to additional work.

I know that your Lordships are keen to see a response to the Defence Committee’s report and I acknowledge that it is taking a little longer than expected, but that is for good reason. The Secretary of State has kept the inquiry chairwoman, Sarah Atherton, fully informed. She is in the picture. I think that we all agree that we would much rather produce something meaningful and substantial that provides hope and concrete direction for the way forward than just cobble together something to produce it within a time limit.

Defence Ministers and service chiefs are adamant that the important issues in the report are addressed comprehensively and that no opportunity is missed to bring about meaningful and enduring change. We are all taking an active role in ensuring that our response to the report is comprehensive and well informed to deliver positive outcomes. We are in the process of finalising that and anticipate submitting our response “in due course”, as it says here. I say to your Lordships to read that as “sooner rather later”.

I wish to be clear that many changes have already been introduced to improve the experience for women in the Armed Forces and military service remains a fantastic career opportunity for men and women alike. It is important to remind your Lordships that nearly 90% of the women giving evidence to the committee would recommend a career in the Armed Forces to female relatives and friends. We should not underestimate the importance of that. Yes, there are matters to be addressed. Yes, there are improvements to be made. Yes, there were areas overdue for investigation, for being addressed and for being rectified. But that sort of testament shows that many women have confidence in a career in the Armed Forces. We are delighted about that and proud of it. We owe it to them and everyone else in the Armed Forces to make sure that the response to this report has clout and impact.

Before speaking to Amendment 53, I first remind this Committee that the Armed Forces launched flexible service on 1 April 2019. The policy allows all regular personnel to apply to serve part-time and/or to restrict the amount of time that they are away from the home base, for a temporary period, subject to defence need. Flexible service is part of a suite of flexible working opportunities that we offer our people, which include remote working, variable start and finish times and compressed working. Between its introduction in April 2019 and September 2021, more than 355 service personnel and their families have benefited from flexible service. This level of uptake is in line both with the MoD’s forecast and with the experience of other nations’ Armed Forces that have introduced similar measures. Defence is ensuring that as many service personnel as possible can benefit from these measures by keeping flexible service under constant review.

We have an ongoing communications campaign aimed at encouraging uptake and improving awareness of flexible service and the wider flexible working opportunities that it offers its people. For example, this autumn, Defence is releasing a series of podcasts that explore service personnel’s experience of flexible working. On completion, the campaign’s impacts will be evaluated to inform communications for 2022.

Our previous communications have led to a high awareness of flexible service. The Armed Forces continuous attitude survey for 2021 shows that 82% of service personnel have heard of the policy. Notable campaigns have included video case studies of service personnel on flexible service in summer 2020, which attracted over 270,000 impressions on social media and nearly 10,000 engagements, and promoting Defence’s full flexible working offer to the Armed Forces through a digital booklet Flexible Working and You: A Guide for Service Personnel, which was published in January 2021. The booklet was viewed 17,000 times on the GOV.UK website and 12,850 copies were distributed to Armed Forces information centres and military units during June and July this year.

Ownership and development of flexible service policy is overseen by the Minister for Defence People and Veterans and, as such, he, too, is committed to ensuring that all service personnel can benefit from the policy. Defence already has several initiatives in place to measure and report on its awareness and uptake. These include annual reporting of flexible service’s developments, uptake and usage in the Armed Forces continuous attitude survey’s background quality reports.

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Lord Lancaster of Kimbolton Portrait Lord Lancaster of Kimbolton (Con)
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I am grateful to my noble friend for giving way. I simply want to ask a technical question, which she will not be able to answer right now. I accept that, but perhaps she would be so kind as to write to me. Having thought about this as she spoke, can I take her back to Amendment 53 and the wonderful flexible service scheme? We are going to face the challenge between dialling down the regular service of an individual, male or female, to perhaps two or three days a week and what they are going to be paid. Given that when you are on operations, you sometimes work seven days a week but at other times, effectively, you work Monday to Friday—five days a week—are they to be paid, for example, 60% of their salary if they are dialling down to three days’ service? I am bearing in mind that a part of that is their 12% X factor, which they get because of the inconvenience of service life. Would they continue to get that 12% X factor when they dial down their service?

I will compare that to the other end of the spectrum and the Reserve service. Part of the Reserve Forces 2030 review, which I chaired, sought to have a spectrum of service so that a reservist can increase their service, potentially, to three days a week—the same level that the regular has dialled down to. Bearing in mind that a reservist gets paid only a reduced X factor of 5%, and that their individual pay is based on one-365th of their regular counterparts’, unless we manage to mirror those two schemes so that they meet in the middle, individuals will potentially be doing exactly the same service per week but will be paid quite different amounts. That is a technical challenge, but we need to think about it. I simply ask whether, perhaps in slow time, my noble friend could write to me about how we are going to address that issue.

Baroness Goldie Portrait Baroness Goldie (Con)
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I am sure that your Lordships are, as ever, immensely impressed by the noble Lord’s command of this matter. I think he is the only person on the Committee who really understands it and I am very grateful to him. I will look in Hansard to consider all his remarks—and, yes, I do undertake to write to him, because there are serious points in there and I do not have the information before me.

Before I conclude my remarks on this group of amendments, I was saying that the response to the Defence Committee’s report will be significant and I think your Lordships will be reassured by it. I will certainly be pleased to update your Lordships once the Government’s response to the report is published and I might even, I suggest, do a Peers’ briefing on that topic when it is forthcoming.

Lord Coaker Portrait Lord Coaker (Lab)
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I thank the Minister for her response which, as usual, sought to engage with the questions. That is always very helpful to the Committee. In particular, we all look forward to what she mentioned in her last point: she said to the Committee words to the effect that there will be a significant response to the Defence Select Committee report, which we have been referring to. I am sure that the Committee will look forward to that response.

I apologise to the noble Baroness, Lady Smith, for not mentioning that she had added her name to the amendments. I did not mean to be rude. I had it in a note that I wrote to myself but I just went over it, so I apologise for that.

In addressing the specific amendments, on Amendment 53 I wrote that I understood what the Minister had said. I think I nearly understood what the noble Lord, Lord Lancaster, was saying. That reflects my ignorance, not his explanation, and it was an important point. I would be interested to see that, but I understood the points that the Minister made about Amendment 53. However, like all of us, I am going to have to reread Hansard a little to fully grasp some of this—and Amendment 54 is a classic example of needing to read it. As I understood it, the Minister said that if the ombudsman makes findings, they are binding; but if they make recommendations, they are non-binding, but that is okay because they can be judicially reviewed. I need to read what she said because, again, the role of the ombudsman is important for us. On Amendment 55, perhaps I need to look again, but I think she said that the Committee will be pleased because the Government are going to go further than is stated in the amendment so, in that sense, more will be done.

Before I make a couple of general points, with respect to Amendment 66B I refer the Minister—if the Committee will bear with me for one moment—to something that I will read. She referred to the Diversity and Inclusion Directorate as one of the reasons that a defence authority was not needed, but paragraph 147 of the report says:

“Although the Wigston Review identified a pressing need to reform the complaints process, the MOD has not fulfilled the recommendation for a Defence Authority, to handle complex BHD complaints outside the chain of command.”

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It will be interesting to hear the Minister’s reply. This is an extremely important amendment, and I thank my noble friend Lord Browne and the other noble Lords for bringing it forward.
Baroness Goldie Portrait Baroness Goldie (Con)
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My Lords, I have added to my choreography before standing at the Dispatch Box: can I get a Polo mint in before the noble Lord, Lord Coaker, concludes? The answer is no. That is the first question I am able to answer.

I thank the noble Lord, Lord Browne, for tabling Amendment 59, which is supported by the noble Lord, Lord Clement-Jones, and the noble and gallant Lords, Lord Houghton and Lord Craig, and engages with the subject of novel technologies. It is a significant issue that merits discussion, and I am grateful to the noble Lord for his kind remarks.

There is no doubt that the increasing adoption of innovative technologies is changing how military operations are conducted. The noble Lords’ analysis—that we need to be particularly mindful of the legal ramifications—is hard to dispute. From the engagement that I and the department have had with the noble Lords, I know that they understand very well the broader complexities likely to be created by Defence use of AI and are anxious that we should address these issues both purposefully and systematically. This scrutiny and challenge is welcome, because we are grappling with questions and subjects that are indeed very complex.

I hope to reassure your Lordships that the department is alert to these issues and has worked extensively on them over the course of the last 18 months. Noble Lords will understand that I cannot set out details until these positions have been finalised, but work to set a clear direction of travel for defence AI, underpinned by proper policy and governance frameworks, has reached an advanced stage. Key to this is the defence AI strategy, which we hope to publish in the coming months, along with details of the approaches we will use when adopting and using AI. This commitment, which is included in the National AI Strategy, reflects the Government’s broader commitment that the public sector should set an example through how it governs its own use of the technology. Taken together, we intend that these various publications will give a much clearer picture than is currently available, because we recognise that these are important issues that attract a great deal of interest, and we need to be as transparent and engaged as possible.

Noble Lords asked pertinent questions. I think the noble and gallant Lord, Lord Craig, asked some of these: where in the chain of command does responsibility for AI-related outcomes reside? When might the Government have an obligation to use AI to protect service personnel from harm? What are the military and moral consequences of machine-speed warfare? These are vital questions, and we recognise that we do not yet have all the answers.

Nor can we hope to arrive at these answers on our own. We have to persist in our engagement with our international partners and allies, and with our own public and civil society. It is perfectly legitimate for parliamentarians to take an interest in this subject, to ask questions and to table debates. I hope that our forthcoming publications will provide a solid platform for an ongoing effort of public engagement and efforts to enhance public understanding, subject to the usual caveats that may apply to the release of Defence information.

To turn to the subject of the proposed amendment, we are committed to ensuring that our Armed Forces personnel have the best possible care and protection, including protection against spurious legal challenges. I assure noble Lords that, regardless of the technologies employed, all new military capabilities are subject to a rigorous review process for compliance with international humanitarian law. Furthermore, we also adjust our operating procedures to ensure that we stay within the boundaries of the law that applies at the time.

International and domestic frameworks provide the same level of protection around the use of novel technologies as for conventional systems because their general principle is to focus on the action, rather than the tool. These frameworks therefore offer appropriate levels of protection for our personnel. Earlier this year, we acted to bolster this protection in historical cases, for example, through the overseas operations Act.

In respect of artificial intelligence, I have mentioned our forthcoming AI strategy and our plan to publish details of the approaches we will use when adopting and using AI. This is really where we come to the nub of the issue. The noble Lord, Lord Browne, put his finger on it, as did the noble and gallant Lord, Lord Houghton, and the noble Lord, Lord Coaker. I want to try to encapsulate what I hope will be a substantive and reassuring response to them all.

These approaches will not affect or supersede existing legal obligations, but they will ensure coherence across defence. They will also drive the creation of the policy frameworks and systems that, in practical terms, are needed to ensure that personnel researching, developing, delivering and operating AI-enabled systems have an appropriate understanding of those systems and can work with and alongside them in compliance with our various legal and policy frameworks.

The noble Lord, Lord Browne, specifically referred to the NATO AI principles. Essentially, NATO’s position is that alliance members can sign up to these NATO-wide standards or they can produce their own to a similar standard. We support NATO’s leadership in the responsible use of artificial intelligence and, as I have indicated, we intend to publish details of our own approach in early course.

In addition, we will continue to engage internationally, including through the United Nations Conference on Certain Conventional Weapons, to promote consensus on international norms and standards for the use of new and emerging technologies on the battlefield, while continuing to act as a responsible leader in this area.

I think it was the noble Baroness, Lady Smith, who asked about the phrasing I used in response to her noble friend Lord Clement-Jones’s question last week. From memory, I said two things: first, the UK has no systems that could unilaterally employ lethal force without human involvement at some stage in the process. I think that I went on to say that, sharing the concerns of government, civil society and AI experts around the world, the UK opposes the creation and use of systems that would operate without context-appropriate human involvement. I think that is the phrase the noble Baroness sought clarification on.

The phrase means that a person is exercising some form of control over the effect of the use of the weapon in a way that satisfies international humanitarian law. This could be some form of control over the operation in real time, or it could be setting clear operational parameters for a system. I hope that that has been helpful to the noble Baroness in explaining what was behind the use of that phrase.

I have endeavoured to provide reassurance to noble Lords that the Ministry of Defence takes these matters very seriously, is already doing all that needs to be done, and is planning to be proactive in communicating our approach appropriately to Parliament and the public. On this basis, I suggest that the amendment is not needed.

I also say, with the greatest respect to the noble Lord, Lord Browne, and no sense of impertinence, that I do question the utility of requiring a review and a report. This will necessarily be only a snapshot; it will quickly become out of date when we are dealing with a rapidly evolving subject matter. Not to put too fine a point on it, the effort of staffing it risks reducing the capacity needed within the department for developing the extensive systems and frameworks that we need to ensure the proper handling of AI.

I must say that I have enjoyed this debate, as I always enjoy my engagement with the noble Lord, Lord Browne—but, for these reasons, I ask that he withdraw his amendment.

Lord Browne of Ladyton Portrait Lord Browne of Ladyton (Lab)
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I thank the Minister for her response to this debate and, with the indulgence of the Committee, I will refer to parts of her response. I was greatly appreciative of it all, but some parts I welcomed more than others.

I will start with the last point. The criticisms the Minister made about the vehicle that I tabled in order to have this debate was correct. It is implicit in the way I debate these issues that they are moving so fast that probably there is no point in time at which we could publish a report that would not quickly go out of date. I accept that. In fact, for that reason I wish that people, and sometimes senior military officers—but thankfully no British ones—would stop talking about a “race” for this technology. A race requires a line, and the development of this technology has no winning line that we know of.

In fact, the likelihood is that when we move to AGI, which is a hypothetical but likely development, whereby an intelligent agent understands or learns any intellectual task that a human being can, it may well be that we think we are at the line, but the machine does not think we are at the line and runs on and looks back at us and laughs. So I accept all of that but, at some point, we need to find a framework in which we in Parliament can connect with these issues—a methodology for the Government to report to Parliament, to the extent that they can, and for all of us to take responsibility, as we should, for asking our young people to go into situations of conflict, with the possibility that these weapons will be used, with all the implications.

So that is what I am seeking to get. I want a 24 year-old who is asked to take some responsibility in an environment in which these weapons are deployed to know with confidence that he or she is acting within the law. That is my shared responsibility with the Government; we need to find a way of doing that. This may be an imperfect way, but we may always be in an imperfect situation with a moving target. So I thank all noble Lords for their contributions to this debate. None of these debates answers any questions fully, but they all add to our collective knowledge.

I thank the noble and gallant Lord, Lord Houghton, for his unqualified support. He took me slightly by surprise with the deployment of his eloquence to make the case for deploying the law as a weapon of war. I fear that I agree with him—I used to be a lawyer—but I will have to think long and carefully before I give him my unqualified support for that. However, I suspect that, as always, I will end up supporting what he said.

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Lord Browne of Ladyton Portrait Lord Browne of Ladyton (Lab)
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I apologise, but I had not finished—it was a dramatic pregnant pause that misled the noble Baroness.

Baroness Goldie Portrait Baroness Goldie (Con)
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Your preface is a long one.

Lord Browne of Ladyton Portrait Lord Browne of Ladyton (Lab)
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It is not a preface. I want to turn to Amendment 62, for a couple of paragraphs. The amendment would ensure that

“soldiers aged under 18 are not required to serve for a longer period than adult personnel.”

In my view, the amendment addresses an issue that is just wrong—we just should not be keeping people who signed at 16 in the Army longer than people who signed at 18, just because of their age. There is no justification for that discrimination, in my view. It is an abuse of their rights; they should be treated the same as everybody else, and we should simply get rid of their distinction. I have finished now.

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Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I am a bit nervous of standing up.

I will make some brief remarks, if noble Lords will bear with me. It is somewhat strange for me: my noble friend Lady Massey, the noble Lord, Lord Russell, and I have spent years campaigning on children’s rights and on 100% of occasions have been exactly as one on all these issues. I therefore fully understand the proposal outlined in Amendment 61, but I have always been persuaded by the argument that has been put forward: for some young people in some situations, recruitment into the Army at 16 offers a way out of the situation in which they have found themselves. It is often a desperate situation—not for all the recruits at 16, but certainly for a number of them.

I was persuaded by this as much as anything. Most of the schools I taught in for 20 years before becoming a Member of Parliament and then joining your Lordships’ House were in the most deprived and desperate communities. One of the options available to those young people was the Armed Forces. Indeed, we used to use the uniformed organisations, admittedly not the Army, but certainly organisations such as the cadets, the Scouts and the Guides, if it was girls, to try to instil some structure into completely chaotic lives. I have always felt that, in some situations, recruitment at 16 gave some young people an opportunity that they otherwise would not have had. I have always been persuaded by that argument and certainly that is our position formally from the Front Bench.

I do not want to get into an “I have done this and other people have not” discussion but I have been to the college at Harrogate—not that you have to go to places like that to have a legitimate or honest opinion. I went there when I was shadow Secretary of State a number of years ago and it was fantastic. It was brilliant and the experience of the young people and the dedication of the Army personnel who were responsible for them was first rate. The young people talked openly about their experience there. You can be cynical about it and say that they were set up to do it and they would not say anything else because they would be worried about getting in trouble, but I did not feel that, to be honest. Maybe I was duped—who knows? However, I felt when I was there that those young people expressed a view that supported the fact that they were allowed to be recruited at 16.

I know that there are very deeply held views on both sides on this. They will cut across party lines, probably. As I have said, I am completely persuaded and always have been by that argument that it creates opportunity. That is the position that the Front Bench of Her Majesty’s Opposition have at present.

There are concerns and I think the Minister would say that some of the allegations that have come out need to be addressed. Some of the statistics from the report quoted by my noble friend Lady Massey are concerning. We need to understand the rights and wrongs of the bullying and of the sexual allegations. We need to get to the root of that. As Amendment 62 points out, maybe there is something there that needs to be looked at.

A very serious debate has taken place here and people have very deeply held views. It is a debate that has been going on for decades about whether it is right to recruit young people at that age because they are too young, or whether is it right to create an environment in which they can join at that age if they are properly supported, protected. They are looked after but they are given an opportunity that were it not available to them there would be significant problems in their lives. That opportunity should be made available to them, but that then puts an added responsibility on all of us to ensure that they are properly cared for and properly looked after as part of Her Majesty’s Armed Forces.

Baroness Goldie Portrait Baroness Goldie (Con)
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First, I can say to all contributors that, wherever one comes from in relation to this debate, this was a cracking debate. It was really interesting, with genuinely thought-provoking contributions from all round the Committee. I thank contributors for that.

The subjects under discussion are, essentially, fairly simple to understand. To look at these two relatively small amendments is perhaps misleading, because they are the genesis of the content that is the trigger for the debate. Essentially, we have amendments tabled in the name of the noble Baroness, Lady Massey of Darwen, with Amendment 61 supported by the right reverend Prelate the Bishop of St Albans, the noble Baroness, Lady Lister of Burtersett, and the noble Lord, Lord Russell of Liverpool. Amendment 62 is once more supported by the noble Baroness, Lady Lister of Burtersett, and the noble Lord, Lord Russell of Liverpool.

These amendments seek to raise the age of recruitment to the Armed Forces to 18 and to ensure that those recruited while under the age of 18 serve the same period of time as those who enlisted at the age of 18. To be honest, what I have detected is a fundamental philosophical divergence: the proposers and supporters of Amendment 61 think that such recruitment is bad; the Government take a different view. I will try to address the concerns articulated by your Lordships in the course of the debate.

I want to be clear about one thing: we comply with the law. We are not in breach of the law in doing what we do. We remain clear that junior entry offers a range of benefits to the individual, the Armed Forces and society, providing a highly valuable vocational training opportunity for those wishing to follow a career in the Armed Forces. I am very grateful to my noble friend Lord Lancaster, who spoke eloquently and authoritatively from a very personal standpoint as to the merit he sees in this system. That opinion should weigh with us.

What I am very happy to do—if others want to respond to this, I am more than happy to support that—is facilitate a visit to the Army Foundation College at Harrogate. I offer to join that visit myself. I, too, have not visited that college, but I would be very happy to do so. I can reassure the noble Baroness, Lady Smith, who specifically asked whether I would be prepared to do that. I hope that, following the impressive marketing strategy from the noble Lord, Lord Coaker, relating to the foundation college, there will be a good take-up of this invitation. I will take that away, engage with those who might be interested in attending and see whether we can get a visit to Yorkshire sorted out.

A number of noble Lords quite rightly raised our duty of care in Defence. We take our duty of care for entrants under 18 extremely seriously. Close attention has understandably been given to this subject in recent years, especially after the tragic deaths at Deepcut. We have robust, effective and independently verified safeguards in place to ensure that under-18s are cared for properly.

I will give a little more detail on that. Mental health and well-being are a priority across Defence and all training establishments. We are clear that the duty of care to all our recruits, in particular those aged under 18, is of the utmost importance, and that those aged under 18 should be treated with special consideration. The 2020-21 Ofsted report, Welfare and Duty of Care in Armed Forces Initial Training, noted the well-co-ordinated care and welfare arrangements for regular and reserve recruits and trainees. At the Army Foundation College in Harrogate, Ofsted was particularly impressed by the strong ethos of emotional and psychological safety, as well as the high standards of all facilities and accommodation. The AFCH has dedicated safeguarding, mental health and well-being leads to support students while they are at the college.

As others have indicated, the provision of education and training for 16 year-old school leavers provides a route into the Armed Forces that complies with the law and government education policy while providing a significant foundation for emotional, physical and educational development throughout an individual’s career. I thank the noble Baroness, Lady Smith. She made a very balanced contribution and acknowledged her acceptance of these virtues.

As others have said, there is no compulsory recruitment into the Armed Forces. Our recruiting policy is absolutely clear. No one under the age of 18 can join the Armed Forces without formal parental consent, and that is checked twice during the application process. The noble Lord, Lord Russell of Liverpool, adduced an example and thought it would be extremely undesirable if the individual whom he envisaged were to go into the Armed Forces but, presumably, in that situation, parental consent would not be given, and one could understand why not. In addition, parents and guardians are positively encouraged to be engaged with the recruiting staff during the process. As has been acknowledged, service personnel under the age of 18 are not deployed on hostile operations outside the UK, or on operations where they may be exposed to hostilities.

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Lord Browne of Ladyton Portrait Lord Browne of Ladyton (Lab)
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On Amendment 62, can the Minister answer this deceptively simple question? Why do the Army, in their regulations regarding the minimum service period, discriminate against younger recruits? On the issue of whether this is legal, I am not arguing that it is illegal—but will the Minister confirm for the record that the only reason why this discrimination, which would be unlawful in civilian life, is lawful, is because the Armed Forces benefit from an exemption from the Equality Act 2010 which was put there to allow them to continue to discriminate?

Baroness Goldie Portrait Baroness Goldie (Con)
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I think I can add nothing more to what I have already provided by way of an explanation for how that system works and why it is there, and why we do not believe that it is as discriminatory as the noble Lord indicates. However, I am happy to look at his remarks in Hansard and see whether I can provide him with a fuller response.

In conclusion, I thank your Lordships for all contributions. I genuinely thought that it was an extremely interesting debate, and I have welcomed the thoughts from contributors all around the Room.

Baroness Massey of Darwen Portrait Baroness Massey of Darwen (Lab)
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My Lords, I have about 10 pages of notes here, which I shall go through very slowly. I joke, of course—it is late.

First, I thank the Minister for her extended response. I should love to meet her, and I should also like to bring others with me to that meeting, because I think we all have a variety of experiences on this—they are very different. We are almost at some sort of philosophically possibly permanent divide. I know where I stand and the noble Lord, Lord Lancaster, knows where he stands, and possibly never the twain shall meet. But perhaps they will.

I will say a little about some of the comments by my very dear noble friend Lord Coaker, who talked about children joining the guides or scouts. They are not forced to join them, obviously, and can also not go if they do not want to. You cannot do that in the army, so it is a different situation. Sorry about that, Vernon.

In trying to make any comments of any sense, I can only say what I would like next from this debate. It has been a super debate, it has been really interesting and exciting, with very good speeches from my friend the right reverend Prelate, my noble friend Lady Lister, and my friend, the noble Lord, Lord Russell, who are all clearly where I am—on the side of the rights of the child, child protection and welfare. That was my focus: child protection and child welfare.

We perhaps all need to seriously look at—I do not mean in depth, just some summaries—the new research coming out about children’s brains. It is very extensive and scientific. We have to accept from this research that the teenage brain develops at different levels in different children. However, there are trends, and 16 is generally too low an age to accurately make decisions or predict what you want to have in life. I was a teacher—as was my noble friend Lord Coaker—a long time ago. I do not think we knew all this stuff then. We knew that children were different, but we did not have all this scientific input about the development of the brain. I am grateful for it. I have just read a wonderful book about it, and I am really grateful we have it.

The noble Lord, Lord Lancaster, said that the Armed Forces can equip children with skills for life. Yes, they can, but so can other places. I cannot accept that equipping people with skills for life should include such joys as I have heard—I have not quoted all the stories I have heard—about the not-so-good parts of Harrogate. I would love to go to Harrogate with the Minister or anybody else. I am very aware that institutions can gloss over things. I have been in schools, so I know that when you have an Ofsted inspection you would not think there were naughty children there, or anything is wrong, you would just believe what you were told. You were often not invited to interview children. It is absolutely key that children must be interviewed, and parents should give their views as well, to have a complete spectrum of what is going on in an institution.

I keep talking about the rights of children. We should respect the international agreements, that we have not just made but endorsed, about the rights of children as embedded in the UN Convention on the Rights of the Child. It is a hugely important document; we do not know enough about it and we should take more account of it. My noble friend Lady Lister was quite right to bring out the awful reports from the committee on our attention as a country to youth justice and the rights of the child. We need to look at all these things if we have not already.

I would also say that the evidence of people tonight has not really answered this question: if the case for recruiting at 16 is so strong, why do none of our closest allies do it? We are really out on a limb. I read in the Times the other day that the Marines are now looking at recruiting people at an older age because they are more mature and have more experience of life, and that is what they want, rather than people who are raw recruits.

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Moved by
67: Clause 24, page 38, line 21, at end insert—
“(ga) paragraphs 1 to 23 and 33 to 52 of Schedule (Tri-service serious crime unit) (and section (Framework for establishment of tri-service serious crime unit) (5), so far as it relates to those paragraphs);”Member’s explanatory statement
This amendment is about the territorial extent of the new Schedule proposed by Baroness Goldie to be inserted after Schedule 4.
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Moved by
68: Clause 25, page 39, line 4, leave out “and” and insert—
“(ha) paragraphs 1 to 23 and 33 to 52 of Schedule (Tri-service serious crime unit) (and section (Framework for establishment of tri-service serious crime unit) (5), so far as it relates to those paragraphs), and”Member’s explanatory statement
This amendment is about the territorial extent of the new Schedule proposed by Baroness Goldie to be inserted after Schedule 4.

Armed Forces Bill

(Limited Text - Ministerial Extracts only)

Read Full debate
Report stage
Tuesday 23rd November 2021

(2 years, 4 months ago)

Lords Chamber
Armed Forces Act 2021 Read Hansard Text Amendment Paper: HL Bill 62-I Marshalled list for Report - (19 Nov 2021)

This text is a record of ministerial contributions to a debate held as part of the Armed Forces Act 2021 passage through Parliament.

In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.

This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here

This information is provided by Parallel Parliament and does not comprise part of the offical record

Lord Robathan Portrait Lord Robathan (Con)
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My Lords, if I may intervene briefly, I will start with a confession: I have not read the Mutiny Act 1689, to which the noble Lord, Lord Thomas, referred so eloquently. But I have a little experience, in that I have sat on a court martial as part of the board. I have never been court-martialled, I am glad to say, but I have experience of military justice—some decades ago now, because I am getting old. I also have some experience of it from working in the Ministry of Defence in the coalition Government. The Bill as a whole tries to make the criminal justice system in the military better. It is all to be applauded, and I am particularly impressed with the setting up of the defence serious crime unit.

I found a slight contradiction in the amendments that we are discussing today; perhaps it might be explained later. Is it because defendants—typically soldiers—are too harshly treated that they should have trial by jury? When I was serving, my experience was that, in the military justice system, there was a certain attitude: “If he is before a court martial”—it was almost exclusively a “he”—“he must be guilty”. Or is it because, as it says in Amendment 25, we need to improve the rates of conviction for serious offences? This seems to be a slight contradiction.

Is it because people do not like the whole courts martial system? That is a serious question to be addressed. In my experience, which is aged and limited, the courts martial system works pretty well, so let us know exactly why it should be that we wish to change it for these matters—and I know Judge Lyons has said so. Notwithstanding the comments of the noble Lord, Lord Thomas, that we should not consider discipline to be part of this, it is very important that we have a disciplined force. That is why we have courts martial, though no longer the death penalty for mutiny.

Baroness Goldie Portrait The Minister of State, Ministry of Defence (Baroness Goldie) (Con)
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My Lords, I am delighted to join your Lordships in the Chamber this afternoon on Report to discuss these proposed amendments to the Armed Forces Bill. This is an important Bill. I know it enjoys support across the Chamber, but interesting issues have arisen and merit discussion.

I also observe that many of the issues that were vigorously and articulately debated in Committee have resurfaced. That was a good debate, probing the legislation for the Bill. Please be assured that I will endeavour again to address the points raised and to dispel the concerns that noble Lords have around the Bill.

Your Lordships may take comfort that I am as passionately driven as anyone in this Chamber to ensure that we deliver the best for our service men and women, our veterans and their families, balanced against the resources to hand. I say with confidence that the Bill seeks to achieve that overriding objective. I am grateful to my noble friend Lord Robathan for acknowledging that this is exactly the improvement that the Bill seeks to deliver.

With that said, I will now speak to Amendments 1, 2 and 25. Just for the avoidance of doubt, I understand that the noble and learned Lord, Lord Morris of Aberavon, will not now move Amendment 25, and therefore I propose not to use my speaking notes and have a Mogadon effect on the Chamber. If the noble and learned Lord is content with that, I can perhaps shorten this debate a little.

Amendments 1 and 2 focus on the service justice system. I thank the noble and learned Lord, Lord Morris of Aberavon, for tabling Amendment 1. It seeks to amend Clause 3 so that a circuit judge or a High Court judge can be nominated by the Lord Chief Justice to sit as a judge advocate only when they are ticketed to deal with cases of murder, manslaughter and rape.

First, I reassure your Lordships that judge advocates hearing murder, manslaughter and rape cases in the courts martial have the same training and requirement for ticketing as judges hearing those cases in the Crown Court. The Judge Advocate-General and all judge advocates sit in the Crown Court for up to 60 sitting days a year and are as qualified, capable and well trained as civilian judges sitting in the Crown Court.

Tickets are allocated based on the Judge Advocate-General’s judgment that a particular judge advocate has the appropriate training, experience and ability to try the case in question. Judges nominated by or on behalf of the Lord Chief Justice to sit as a judge advocate will likewise have whatever tickets are necessary for the case that they will be trying. I trust that this will assure the noble and learned Lord that all the judges sitting in the courts martial are qualified to try whatever case is before them.

There may also be some misapprehension about another situation: when the service courts might need additional judges. As drafted, the amendment would allow only judges ticketed for murder, manslaughter and rape to be nominated to sit in the court martial. The judiciary in the service courts is already able to deal with these serious offences, so the Judge Advocate-General may need to request the nomination of a judge for other reasons. It might be because they have particular expertise or experience that is relevant for another type of offence. There might also simply be a temporary shortage of judge advocates, perhaps when the service courts have an unusually high caseload. A judge nominated to sit in the service court would need to be ticketed only for the particular type of case that they are trying; they would not need a ticket for murder, manslaughter or rape, unless of course they were dealing with those offences. I hope that that reassures your Lordships and, therefore, that the noble and learned Lord will feel able to withdraw his amendment.

I turn now to Amendment 2 in this group, tabled by the noble lord, Lord Thomas of Gresford, and supported by the noble Lord, Lord Coaker, the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Baroness, Lady Bennett of Manor Castle. It seeks to ensure that certain serious crimes—murder, manslaughter, domestic violence, child abuse, rape and sexual assault with penetration—are all tried in the civilian courts when committed by a serviceperson in the UK, unless by reason of specific naval or military complexity involving the service the Attorney-General has specifically consented for such crimes to be tried at courts martial.

By way of preface, I say that it was very clear from our debate in Grand Committee that we all have a common aim: to ensure that, where there is concurrent jurisdiction, each case is heard in the most appropriate jurisdiction. This amendment seeks to achieve this through two procedural safeguards—namely, that there is a presumption that these offences are heard in the civilian courts and that, to overturn that presumption, the Attorney-General’s consent must be obtained.

We accept the need to improve decision-making in relation to jurisdiction, and a key part of that is of course for the civilian system to have a potential role in each case. We differ on the need to restrict the legal principle of concurrent jurisdiction by introducing a presumption in favour of one system over the other, and that is what the noble Lord’s amendment manages to create.

As I said in Grand Committee, the recently published review by Sir Richard Henriques was unanimous on two things, in supporting not only the continued existence of the service justice system but the retention of unqualified concurrent jurisdiction for murder, manslaughter and rape. Importantly, the review found the service justice system to be fair, robust and capable of dealing with all offending. The creation of a defence serious crime unit elsewhere in the Bill will further improve the skills and capability of the service police to deal with these most serious offences. Therefore, we do not believe that a presumption in favour of these offences being heard in the civilian courts is necessary or justified.

We acknowledge that change is required to improve clarity as to how concurrency of jurisdiction works in practice. Instead of introducing an Attorney-General consent function, as recommended by His Honour Shaun Lyons, we believe that a better approach is to strengthen the prosecutors’ protocols and enhance the role of prosecutors in decision-making on concurrent jurisdiction. Independent prosecutors are, after all, the experts on prosecutorial decisions.

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16:03

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