The Committee divided: - Ayes: 7 / Noes: 8 - Clause 10 ordered to stand part of the Bill.
The Committee divided: - Ayes: 2 / Noes: 9 - Question accordingly negatived.
The Chair
Before we begin, I remind Members that Hansard colleagues would be grateful if Members could email their speaking notes to hansardnotes@parliament.uk.
To indicate that you wish to speak next, please raise your hand in front of the camera or use the “hand up” function in Zoom. To intervene or to make a point of order, please unmute and state that. Members being intervened on are reminded to repeat any part of their speech that may have been interrupted by the intervention.
We now begin line-by-line consideration of the Armed Forces Bill. The grouping list for today’s sitting has been circulated to Members and is available on the Committee’s web page. It shows how the amendments have been grouped together for debate. Amendments grouped together are generally on the same or a similar issue.
Please note that decisions on amendments take place not in the order they are debated but in the order they appear on the amendment paper. The grouping list shows the order of debates. Decisions on each amendment are taken when we come to the clause to which the amendment relates.
As a reminder and perhaps for those watching, this is the first time that Parliament has conducted virtual line-by-line scrutiny of any Bill. This is the first time for all of us. We will go carefully. We will make sure that we are slow and deliberate.
Clause 1
Duration of Armed Forces Act 2006
Question proposed, That the clause stand part of the Bill.
The Minister for Defence People and Veterans (Johnny Mercer)
Thank you, Mr Sunderland, and for all the comments—I have watched the sessions, which have been very interesting. I am more than happy to engage in debate on any of the amendments that have been tabled.
May I get some guidance from you, Mr Sunderland, and the Clerks? Clearly, I think the clause should stand part of the Bill, but we will then go through the amendments, as I understand it. Is that right, or would you like me to speak to the amendments straight up?
The Chair
Minister, I urge you to speak to clause 1. The order will be: Minister to lead, then Labour spokesperson, SNP spokesperson, anyone else to come in at will, and the Minister to wrap up. We might cover each of the clauses quickly, but people might wish to speak to them. Certainly, Minister to open and to move clause 1.
Johnny Mercer
The primary purpose of the Armed Forces Bill is to provide for the continuation in force of the Armed Forces Act 2006, which would otherwise expire at the end of 2021. The clause provides for the continuation of the Act for a year from the date on which the Bill receives Royal Assent and allows further renewal thereafter by Order in Council for up to a year at a time, but not beyond the end of 2026. Crucially, the 2006 Act confers powers and sets out procedures to enforce the duty of members of the armed forces to obey lawful commands. The central effect of the expiry of the Armed Forces Act would be to end the powers and provisions to maintain the armed forces as disciplined bodies. That is all I have to say on clause 1.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clause 2
Constitution of the Court Martial
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider the following:
That schedule 1 be the First schedule to the Bill.
Amendment 1, in schedule 1, page 38, line 11, at end insert
“or lower ranks after a minimum service of 3 years”.
This amendment would extend Common Law rights for people to be tried by a jury of their peers to be extended to those in the Armed Forces.
Clause stand part.
Clauses 3 to 6 stand part.
Johnny Mercer
Following the recommendations of the Service Justice System review, changes are being introduced in the Bill to allow more senior non-commissioned officers to sit as lay members, to change the number of lay members to six or three, and to introduce qualified majority voting. Those changes will have the effect of aligning the court martial system more closely with a civilian jury.
Currently, only officers and warrant officers can be lay members of a court martial. The clause will allow OR-7 ranks to be lay members—that is, chief petty officers, colour sergeants, staff sergeants and flight sergeants. That broadens the pool from which court martial lay members can be drawn, while preserving the seniority of lay members to fulfil the disciplinary role needed by the court martial.
Currently, there can be anywhere between three and seven lay members sitting on a court martial to decide on the verdict and then, if appropriate, on sentencing with the judge advocate. The clause will fix the numbers to either six or three lay members sitting on a court martial board. The intention is that serious cases will be dealt with by boards of six lay members, which is half the usual number on a civilian jury. The intention is that court martial rules will provide that six-member boards are needed where the defendant could be sentenced to more than two years’ imprisonment.
The clause would also introduce qualified majority voting on verdicts where there is a board of six lay members. At least five lay members must agree if there are six lay members, or four if the board reduces to five due to illness or another reason. Those numbers are roughly in proportion to the way in which qualified majority verdicts work in the civilian jury system.
The Chair
I am aware that Martin Docherty-Hughes wishes to speak to amendment 1, but I ask first whether the Labour spokesperson wishes to comment.
Mr Richard Holden (North West Durham) (Con)
The evidence on this point was interesting. It was clear from the judge’s comments that we are moving a step in the right direction. However, it is only just a step. A review of this measure in five years’ time, at the next opportunity, is the right thing to do. The Committee heard evidence, and I questioned the judge, on the essential nature of this being different to a civilian court and the idea of discipline in the forces. The judge’s recommendations and the expansion, but not total movement, on this point, provide a sensible level. I urge Committee Members to oppose the amendment.
Johnny Mercer
I have read the amendment. It seeks to increase lay membership of court martial boards beyond the rank of OR-7 and the changes we are making, as set out in the clause, apply to all service personnel, irrespective of rank, after serving for a period of three years.
The amendment seeks to bring the court martial board closer to the membership of a jury of a civilian Crown court in England and Wales, entitling all ranks to be tried by their peers. The amendment does not, however, take account of the key difference between the civilian courts and the court martial board. It is only the latter that has a part to play in determining the sentence with the judge.
I should first make it clear that we very much welcome the recommendation on this matter in the service justice review. Increasing the range of ranks from warrant officer to chief petty officer staff sergeant who can sit on a board as recommended is the right thing to do. It increases diversity of experience and also increases the pool of personnel eligible to sit on a board. Very careful consideration was given as to where we should draw the line on eligibility. A key factor in that was the role that the board has in determining the appropriate sentence to be awarded.
As I have already explained, the court martial board deliberates with the judge on the sentence to be awarded and the judge is relying on the collective service experience of those board members to assist in deciding the appropriate sentence. The sentence in the court martial fulfils a number of purposes, including punishment, the maintenance of discipline and deterrence. It must also take into account what is in the best interests of the service and the maintenance of operational effectiveness.
Martin Docherty-Hughes
I recognise the move to include at least OR-7, but for the benefit of those watching our proceedings today, by going no further than OR-7, we are not just excluding privates, we are excluding lance corporals, corporals and sergeants, who probably have substantial life experience and military experience. While we are taking a step forward, there is substantial evidence from the ombudsman and the Defence Committee over the last 10 years that we are not going forward fast enough. Does the Minister not recognise that some of the profound issues the military justice system faces would be assisted by the amendment?
Johnny Mercer
I am afraid I do not agree. We need to take this sequentially. It is an important move down to OR-7, and it will be reviewed again in due course. We want to make this the fairest justice system available, and if that includes moving beyond OR-7, we will do so in future, but at this time I do not agree with the hon. Gentleman. An appreciation of these factors comes with experience and, to a certain extent, with rank and the exercise of leadership and command over others. That is not the same as having served a specific period of time in the armed forces, as proposed in the amendment. In the light of that, we concluded that those at the rank of OR-7 and above are most likely to have the breadth of experience necessary to undertake the required role in sentencing. I have considered and answered the hon. Gentleman’s points. I hope, following these assurances, he will agree to withdraw the amendment.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Clause 7
Concurrent jurisdiction
Mrs Sharon Hodgson (Washington and Sunderland West) (Lab)
I beg to move amendment 19, in clause 7, page 4, line 26, at end insert—
‘(4A) Guidance under (3)(a) must provide that murder, manslaughter and rape must be tried in civilian court when offences are committed in the UK.’.
This amendment will ensure that the most serious crimes – including murder, manslaughter, sexual assault, and rape - are tried in the civilian courts when committed in the UK.
Johnny Mercer
I will deal with the amendments in reverse order. Amendment 19 seeks to ensure that the most serious crimes—murder, manslaughter and rape—are tried in the civilian courts when committed by a service person in the UK. It seeks, through statutory guidance, to undermine the current legal position, which is that there is full jurisdictional concurrency between the service and civilian justice systems. I want to take this opportunity to explain clearly why the Government do not consider that to be the right approach.
To begin with, it is important to be clear that the amendment goes further even than the service justice system review recommended. It would mean that murder, manslaughter and rape committed in the UK could never be dealt with in the service justice system. The Lyons review recommended that such cases could continue to be tried in the service justice system with the consent of the Attorney General. Even some of those who were critical of such offences being retained in the service justice system seemed to accept at least some ongoing role for the service justice system. For example, there is general consensus that cases including cross-jurisdiction elements—offending both overseas and in the UK—would be appropriately tried in the service justice system.
The Government resist the amendment on that basis alone; however, as is now well known, the Government are also unable to accept the Lyons review recommendation directly, and have instead opted for an alternative and improved approach. As explained on Second Reading, the decision to retain jurisdictional concurrency was taken after full and careful consideration. The Government are confident that the service justice system is capable of dealing with all offences, whatever their seriousness and wherever they occur, bolstered by the improvements recommended by the Lyons review.
One of the most detailed examinations of the way the service police deal with cases of domestic abuse and serious sexual offences was contained in an audit by retired Detective Superintendent Mark Guinness in 2018 as part of the Lyons review. That audit found that service police have the necessary training, skills and experience to carry out investigations into such cases. The service prosecutors and judiciary are trained, skilled and experienced. Victims and witnesses receive support that is comparable to that received in the civilian system, for example through the armed forces code of practice for victims of crime.
Members have referred to statements by Ministers to Parliament during debates on what became the Armed Forces Act 2006. Ministers at the time said that murder, manslaughter or rape committed in the UK would normally continue to be tried in the civilian system; however, those were policy statements made nearly 15 years ago by Ministers in a different Government. Those policy statements did not alter the legal position set out in the Act: that of concurrent jurisdiction. We are considering what the position should be today and for the future, not what the position was 15 years ago.
In the light of that, the Government have concluded that it is right that the current legal position of jurisdictional concurrency is maintained in principle. The service justice system exists to support operational effectiveness and discipline, and to do that effectively it needs flexibility. That is why the Government have concluded that decisions on where cases should be tried should be taken on a case-by-case basis by independent prosecutors.
Clause 7 places a duty on the heads of the service and civilian prosecution authorities to agree guidance relating to how decisions are made where there is concurrent jurisdiction. That will bring much needed clarity on how decisions on jurisdiction are made, and will ensure that decisions on jurisdiction are transparent and independent of the chain of command and Government. The director of service prosecutions in his evidence to the Committee stated that in cases of murder, manslaughter or rape, service and civilian prosecutors will need to consult on where the proper jurisdiction lies. The Bill makes it clear that where a disagreement over jurisdiction cannot be resolved the civilian prosecutors will have the final say.
To be clear, the aim of that approach is not to increase the number of serious crimes being tried in the court martial; it is to ensure that the service justice system is able to deal with those offences in principle when committed by a service person in the UK, and that there is a transparent, robust and independent way of resolving where jurisdiction lies. I hope that that explains the rationale for the Government’s approach and the safeguards that exist, and that, following those assurances, the hon. Member for Washington and Sunderland West will agree to withdraw her amendment.
Amendment 2 seeks to include the Justice Directorate in Scotland as one of the statutory consultees that must be consulted by the issuing authorities of the protocol regarding the exercising of concurrent jurisdiction in Scotland. The hon. Members for Glasgow North West and for West Dunbartonshire have stated that the purpose of the amendment is to ensure that devolved Administrations are appropriately consulted.
New section 320B of the 2006 Acts provides for the Lord Advocate and Director of Service Prosecutions to agree a protocol for the exercise of concurrent jurisdiction in Scotland. Subsection (8) requires them to consult all authorities listed there before agreeing the protocol or any revision to it. Those listed for Scotland are the Secretary of State, the Chief Constable of the Police Service of Scotland, or any other person whom the issuing authorities think appropriate. Corresponding provision is made for England and Wales in new section 320A, and for Northern Ireland in new section 320C.
The constitutional frameworks for criminal justice are different between England and Wales, Scotland and Northern Ireland. As a result, the office holders responsible for agreeing the three protocols with the DSPs and the list of consultees are designed to reflect those differing arrangement in each jurisdiction. In relation to Scotland, the clause was drafted in consultation with the Scottish Government and the Crown Office and Procurator Fiscal Service. The role of the Lord Advocate agreeing the protocol and the list of Scottish consultees reflects those comments prior to introduction. On the involvement of the Scottish Government in developing the protocol, it is of course the case that the Lord Advocate is a member—
Johnny Mercer
Yes, but the hon. Gentleman’s last intervention simply reiterated his point. I accept that, but I will take interventions only if they add to the point something that we have not already covered.
Martin Docherty-Hughes
I do hope so. The Minister mentioned the Scottish Government. My amendment relates to the civil service through the Justice Directorate, so there is a clear differentiation, and it is not necessarily an engagement with the Government, but with the civil service and differing legal system of Scotland. That is why it is clear that it is about the Justice Directorate and not, for example, the Cabinet Secretary for Justice.
Johnny Mercer
I appreciate that point, but the outcome that we are trying to achieve will be similar. The clause was drafted in consultation with the Scottish Government and the Crown Office and Procurator Fiscal Service. The role of the Lord Advocate in agreeing the protocol reflects those comments prior to its introduction. We have been around the houses and got those people’s views.
On the involvement of the Scottish Government in developing the protocol, the Lord Advocate is of course a member of the Scottish Government, so there is no question of the Scottish Government not being involved in the creation of the protocol in Scotland. In addition, new section 320B(8) of the 2006 Act provides that the Lord Advocate and the Director of Public Prosecutions may also consult anyone else thought appropriate.
I hope that helps to explain how we have designed the clause in a way that is sympathetic to the differing constitutional arrangements across the UK, and I hope that hon. Members will withdraw their amendments.
Mr Jones
May I begin by thanking Justice Lyons for his review? In his evidence to the Committee, he clearly outlined why amendment 19 is needed. I am a veteran of the 2006 Bill Committee, and it is quite clear, as Judge Lyons said in evidence, that when this amendment was made to that Bill, the intention was not for the wholesale movement towards serious crimes being heard in courts martial in the UK. They were for exceptional circumstances in which, for example, one crime had been committed overseas and one in the UK, given the ability of the court martial to deal with such cases. That was a sensible way forward because the service police would clearly be the lead authority in the investigation of such serious crimes committed abroad as murder, rape or manslaughter,.
The problem, which my hon. Friend the Member for Washington and Sunderland West outlined eloquently, is to do with confidence in the system. When the system was outlined, I do not think courts martial were meant to deal with these serious crimes. I support the military justice system, and I do not think the amendment would do anything to damage it. I think it would boost confidence in it.
The problem with the current system has been outlined. The conviction rate for rape is not satisfactory—I accept there are problems not just in the military system but in civilian life as well—and one of the key issues is investigation. The Minister said he was confident that the service police have the capacity to investigate such serious crimes. I would not want to criticise professional individuals, but, as with anything, the more specialism someone has and the more cases they deal with, the more expertise they get in gathering evidence and in supporting victims.
Clearly, the service police deal with a limited number of serious cases, so I would have thought that, when such alleged crimes are committed in the UK, it would be important to involve the local civilian police, who deal with serious sexual assaults, rapes, manslaughter and murder more often. Because of that experience not only in gathering evidence but in dealing with victims, they should have primacy. I am old enough to remember the Deepcut inquiry undertaken by Lord Justice Blake and know those cases in detail. I accept that is going back a number of years, but the clear problem there was the way in which evidence was not gathered—in some cases it was ignored or destroyed—and the assumption, without rigorous investigation, that suicide was the main cause of death in all cases.
The amendment is really about the system’s integrity and getting confidence for victims as well. As we saw in evidence from Forward Assist and retired Lieutenant Colonel Diane Allen, there is an issue in ensuring that, first, those who complain think they will be listened to as victims, and secondly, the armed forces’ hierarchical structure is not an impediment to the proper investigation of serious accusations. I can see the reason for courts martial dealing with cases in exceptional circumstances, as outlined in the 2006 Act, such as those that take place overseas and in this country, but I cannot see why routine cases in the UK are not dealt with by the civilian courts. I therefore support the amendment.
The Minister said it is a policy decision, but I am not sure. The intention was there, and I do not think much has changed in the past 15 years. What we need to do now is to ensure that, as was outlined in evidence we heard from the Victims’ Commissioner and other witnesses, the victim is at the centre of any system we put in place.
Stephen Morgan
It is a pleasure to serve under your chairmanship, Mr Sunderland. I rise to speak initially to amendments 3 to 6, which are in my name.
The amendments are designed to ensure that central Government and devolved Governments have the same due regard to the covenant that the Bill places on local authorities and other public bodies. The amendments go to the very heart of Labour’s prescription for a Bill that attempts to outsource Ministers’ responsibilities for delivering the armed forces covenant for all service personnel, veterans and their families. As drafted, the Bill places significant new legal responsibilities to deliver the covenant on everyone from local councils to NHS foundation trusts, clinical commissioning groups and school governors, but not to Departments or Ministers.
Over the past few months, I have met many groups named in the Bill, including council leaders and armed forces champions from across the country, and I have been repeatedly struck by the good work that they are doing in places such as North Tyneside, which in 2018 became the first local authority to fund an armed forces officer, and Rushmore, which is closer to home for me, in Hampshire, where the Labour council is pioneering innovative ways to reach armed forces communities to ensure that their views are heard. Their good work, however, is often limited by the lack of resource and direction from the centre. I have also spoken to forces families in my constituency and to organisations such as SCiP Alliance—the Service Children’s Progression Alliance—as well as service charities. They, too, are clear that there should be a consistent approach and that national Governments should be subject to the same duty as councils.
It is true that in some places there is low awareness of the covenant, but many of the policy areas in which members of the armed forces community experience difficulty are clearly the responsibility of national Government, or are based on national guidance provided to other delivery partners. Ministers say that they do not want to be too prescriptive about the outcomes, for fear of stifling innovation at local level, so let me provide some real-world examples of the ways in which that approach damages outcomes for veterans.
I have campaigned for some time to ensure that coroners record veterans’ suicides. In doing so, I saw answers from responsible Ministers and the coroners themselves. Each considered it to be the responsibility of the other to set policy on the issue. Such Catch-22s are allowed to persist and prevent us from making the well-meaning promises of the covenant a reality. The Minister has spoken of his desire to raise the floor of what is delivered by the Bill, which is a commendable aspiration, but that can only happen when central Government are responsible. Ministers could then set measurable, enforceable standards, which are ultimately responsible for delivering.
The current drafting also means that serving personnel, for whom many services are the responsibility of the MOD, will not benefit from the Bill. Government will therefore continue to evade any real responsibility to raise the standard of service accommodation, which we have heard from witnesses is in an appalling state. That will create a two-tier covenant that applies to some in forces communities, but not others, and will risk reinforcing the postcode lottery that the Minister himself concedes is the experience of many veterans.
The Minister also let the cat out of the bag that the Government are not serious about delivering for our armed forces with this Bill. At Defence questions in February, the Minister said that
“the legislation is very clear that it does not specify outcomes, but simply ensures that a set of principles is adhered to.”—[Official Report, 1 February 2021; Vol. 688, c. 668.]
Without the statutory guidance that will underpin the legislation, our armed forces are without the principles and without the outcomes, and this Government will be allowed to get away from responsibility for delivering.
Amendments 7 and 18 are also in my name. Amendment 7, as grouped with amendments 8 to 18, is designed to widen the scope of the Bill to include all areas of potential disadvantage for service communities. The Minister has previously said that the narrow focus of the Bill on housing, healthcare and education is because they are the areas of greatest concern for armed forces communities. Although those are undoubtedly critical areas for the armed forces community, the Bill does not fully cover them, and many areas of disadvantage are totally left out, including employment, pensions, compensation, social care, criminal justice and immigration. We heard from the witnesses who came before the Committee what, in practice, that omission will mean: nothing on social care, where service charities continue to highlight fundamental problems with the availability and cost of care; nothing on the shameful scandal of Commonwealth veterans forced to pay eye-watering fees for UK citizenship, despite their service to our country; and nothing for the cohort of war widow pensioners who, according to the Defence Committee, continue to endure a “grotesque injustice”.
In short, Ministers risk creating a two-tier armed forces covenant and a race to the bottom on standards in those areas that have been omitted. The amendments seek to ensure that areas of disadvantage that have been persistently highlighted in armed forces covenant annual reports will be finally addressed. We are challenging the Government to deliver on their promise to enshrine all of the covenant into law, not just pick and choose based on their opinion. Given that the statutory guidance, which will give real meaning to the Bill, will not be published until after Royal Assent, it is still unclear to what extent the limited areas included in the Bill will be addressed.
As I noted earlier, functions that sit within the MOD, such as service accommodation, are also out of scope. Section 343 of the Armed Forces Act 2006 contains powers for the Secretary of State to add bodies and functions. That rare oversight is welcome, but it is not clear in what circumstances those powers would be used. With Ministers suggesting that the Bill will not have prescribed outcomes, there seems to be no review mechanism that would trigger or consider the addition of new public bodies. Service charities such as the Royal British Legion and Help for Heroes would be keen to see some clarity on that, so perhaps the Minister can speak to that in his response.
I strongly expect that the Minister will reject the amendment, but both he and I know that in doing so he will be concealing that he has not truly fulfilled his party’s manifesto commitment to enshrine the armed forces covenant into law.
Johnny Mercer
I think some of that speech was written before my evidence session yesterday, where I promised to ensure that statutory guidance is available as soon as possible. I will try to accelerate that, because I want Members to have a copy. We need to look at how it has been done before and what the regulations are around this stuff, but I am keen that we all work as a team to try to get this done.
Clause 8 amends part 16A of the Armed Forces Act 2006 by inserting six new sections, which will impose on certain public bodies across the UK a duty to have due regard to the three principles of the armed forces covenant, and provide for the Secretary of State to issue guidance and widen the scope of the new duty.
The principles of the armed forces covenant are: the unique obligations of, and sacrifices made by, the armed forces; that it is desirable to remove disadvantages arising for service people from membership, or former membership, of the armed forces; and that special provision for servicepeople may be justified by the effects on such people of membership, or former membership, of the armed forces.
Proposed new sections 343AA to 343AD to the 2006 Act impose the duty in each of the four nations of the United Kingdom. The new duty will apply where particular types of public body are exercising certain of their public functions in key areas of health, housing and education that are vital to the day-to-day life of our community. The bodies and functions specified in each of those sections are different because they reflect the different systems in place in each of our four nations. However, they aim to cover those 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 face difficulties, due to their mobility, in getting children into schools and, more troublingly, in ensuring access to the necessary assessments and support when they have children with special educational needs or disabilities, as it is described in England. We know that service children have specific wellbeing needs. The duty will target those who are responsible for that, ensuring that they understand and consider the very specific needs of our community’s children.
In healthcare, again, much has already been achieved, but service families and veterans still experience disadvantages, often as a result of their mobility and other healthcare requirements caused by military service. This duty will apply to all bodies that are responsible for commissioning and delivering healthcare services across the UK.
Johnny Mercer
I hear what the right hon. Gentleman says. I respect him and the points he has made, but I disagree with him.
Stephen Morgan
I listened very carefully to what the Minister had to say, and I think it is clear that the Government cannot do half a job in fulfilling their manifesto commitment to enshrine the covenant in law. Nor should Ministers be allowed to outsource the delivery to cash-strapped local authorities and other stretched public bodies, especially during a pandemic. They must take responsibility themselves. I will not press amendments 3 to 6 and 7 to 18 now, but I give notice that we may return to them on Report. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 ordered to stand part of the Bill.
Clause 9
Reserve forces: flexibility of commitments
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider that schedule 2 be the Second schedule to the Bill.
Johnny Mercer
Clause 9 amends sections 24 and 25 of the Reserve Forces Act 1996 to replace the existing full-time service commitment, which enables members of a reserve force to volunteer to undertake a period of full-time service, with a new continuous service commitment. The amendment will also clarify the basis on which a reservist can perform additional duties.
The new continuous service commitment will in future enable members of a reserve force to volunteer to undertake a period of full-time service or part-time service, or a combination of both, under one commitment, allowing for the first time seamless movement between full and part-time service. These important modernising steps will help to attract and retain people who have the key skills that Defence needs and who want to serve in a way that better suits their personal circumstances. The measures will also allow Defence greater freedom in how it generates military capability, by utilising reservists in a more effective and agile way.
Failure to implement these measures and increase the utility of reservists would be a counterproductive step. It would risk sending a message that Defence does not wish to achieve its goal of a whole-force approach, and that it is not listening to the people who serve our nation so well. It would restrict Defence’s ability to improve the offer to reserve personnel in tandem with the offer to regular personnel. It would delay the introduction of important modernising changes that will bring benefits both for reservists and their families and for Defence.
Mr Holden
I support exactly what the Minister has said. After spending time in the MoD as a special adviser myself, I know that it is vital that we do everything possible to ensure that our reserve forces are part of the whole force approach. This clause is in that category, so I support it.
Question put and agreed to.
Clause 9 accordingly ordered to stand part of the Bill.
Clause 10
Service complaints appeals
Johnny Mercer
In answer to the Opposition’s veterans spokesperson, I can say that that option is being considered as well as judicial review, not instead of. But these options are being considered at the moment as we try to find a way forward. Clause 10 and schedule 3 are part of wider reforms to support service personnel through the complaints system and to increase efficiency and reduce delays within the service complaints process.
This clause will be complemented by a programme of other changes that do not require primary legislation. The Wigston review into inappropriate behaviours highlighted a lack of confidence in the current system. The previous service complaints ombudsman for the armed forces has also made an assessment in her annual reports that the service complaints system is not yet efficient, effective or fair. It is crucial that our service personnel feel confident that complaining will not adversely impact them. Therefore, complaints must be dealt with appropriately and in a timely fashion to build that trust further.
It is key then that legislative changes are implemented to ensure that the service complaints system is more efficient. Ensuring that complaints are resolved in an appropriate timescale is part of a wider package of reform to increase trust. Clause 10 changes the minimum time limit that can be set out in regulations for submitting an appeal against a first level decision or for making an application to the service complaints ombudsman to two weeks. I should point out that bringing the minimum time limit down to two weeks does not mean that all appeal applications will be limited to two weeks regardless of the circumstance. Where a serviceperson’s duties mean that this will not be appropriate, additional time will be provided.
Clause 10 also provides the ability to set out in regulations the grounds on which appeals can be brought, for example where correct process has not been followed or where new evidence has come to light which may have had a significant impact on the original decision. At present, an appeal can be brought against a decision body where the complainant does not agree with its decision for any reason, with no limits on what that reason can be. This legislation will ensure that an appeal can be brought only where there are procedural errors or where new evidence is provided.
Schedule 3 makes a consequential amendment to equality legislation to make sure that procedural requirements remain consistent with the changes in this clause. Service personnel will not be penalised by this clause and mechanisms will be in place to ensure that individuals requiring extra time to submit an appeal will be able to do so where appropriate. We must 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.
Mr Jones
The important thing to say is that everyone wants the complaints system to be efficient. It is in the interest of the complainant. It is in the interest of someone who is accused that they get a swift resolution. The evidence, as my hon. Friend the Member for Washington and Sunderland West highlighted, is that the delay does not help anyone. Part of it is due to not only the complexity of some of the cases but, in some cases, the inefficient way in which the armed services, particularly the Army, deal with them.
The Chair
With this it will be convenient to consider that schedule 4 be the Fourth schedule to the Bill.
Johnny Mercer
The service police are members of the armed forces who perform for the armed forces, wherever they are in the world, broadly the same role as their civilian counterparts in police forces across the UK. The recent service justice system review recommended that the MOD set up an independent complaints system to deal with complaints against the service police.
Each of the provost-marshals operates complaints procedures, but there is no legal requirement to do so. Currently, only MOD policy requires that, which leaves those who are unhappy about the actions of the service police without a legal right for their complaint to be dealt with. It also means that there is no one independent of the service police who can investigate serious complaints about them.
The clause therefore amends the Armed Forces Act 2006 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. That regime is overseen by the director-general of the Independent Office for Police Conduct.
The clause also contains provisions in relation to recent changes to the England and Wales regime that allow for super-complaints and whistleblowing to be made. Those will enable us to replicate the civilian regime here, too. [Interruption.] Sorry, Chair, would you mind putting yourself on mute? I keep thinking someone is trying to intervene, and I do want to let people intervene.
The new independent service police complaints commissioner will oversee the new complaints regime, and in particular 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 that new oversight regime brings the service police into line with their civilian counterparts.
In making its recommendation, the service justice system review did not set out what the new regime should look like. However, it did suggest some areas for consideration. First, the service justice system review considered who would be able to make a complaint and when. It proposed that people who are able to make a complaint should include all those subject to the Armed Forces Act and all those who have been subject to that Act. Under the new regime, anyone will be able to make a complaint so long as they have been adversely affected by the matter complained of.
With regards to time limits, the service justice review suggested that the MOD should consider a time limit to be set on bringing complaints. The new regime will aim to replicate the civilian one wherever possible, and so there will be no time limit for complaints that occur after the SPCC is established. For historical matters, which will apply to incidents that may happen today, in addition to something that may have occurred in the 1970s, for example, we will look at the Police Reform Act 2002 model, but need to give greater consideration as to how that will work. Parliament will have an opportunity to scrutinise that in detail when we bring forward regulations under new section 340P of the Armed Forces Act, which is proposed in this clause.
Finally, the service justice system review suggested that a clear distinction should be drawn between which complaints fall to the SPCC and which to the service complaints ombudsman. Further details as to how the new regime will operate will be set out in regulations under proposed new section 340P, which will be subject to the affirmative procedure, with full parliamentary scrutiny.
Forgive me if I missed any interventions, Mr Sunderland. You might have had to keep your line open. I do not mean to ignore everyone, and I am sorry if I have.
The Chair
Thank you, Minister. We are having mute problems here and are just going to bear with it as best we can. Just to reiterate, if any Member wishes to intervene on anybody who is speaking, please do so directly. Can you hear me okay now?
Johnny Mercer
I can hear you okay. It was just that I could hear someone talking and I thought they might have been trying to intervene. I then realised that it was you and asked you to mute, but you were not able to do so. Then I heard the noise again and assumed it was you, so I carried on. If it was someone trying to intervene, I am sorry.
The Chair
It was probably us here. I think the mute button here is not working, or we have an issue with it. We are doing our best to stay very quiet, but there is lots of movement in the room. Please bear with us.
Johnny Mercer
I think that the questions you asked have been answered in the speaking note that I just went through.
Mr Jones
The issue around civilians, in terms of the jurisdiction and families being able to complain. I know you’re just reading the notes out, but it might be worthwhile just thinking, when you’re reading them, that some people might want to scrutinise this, rather than have to listen to you reading what the civil servants have told you.
Johnny Mercer
The reality is that that question around jurisdiction has been answered. I am happy to repeat the answer, but it has been answered already.
Johnny Mercer
Okay. Would the Clerks like to come in and confirm whether or not it has been answered?
Mr Jones
Chair, can I make a suggestion to help the Minister? If he does not know the answer to that question now, could he possibly write to Committee members to answer the points that I have raised? They are perfectly legitimate points. We are not hostile in any way; it is just that the Minister is clearly not on top of his brief.
Johnny Mercer
As ever, I am hugely appreciative of the advice from Mr Jones. I am more than happy to write another letter on any of these issues. I am more than happy for him to have a copy of everything I have said today, and if he still has questions, I would be more than happy to sit down with him and go through them.
The Chair
Mr Jones, I thank you for your intervention, but it is the Minister’s prerogative to wrap up and he has done so.
The Chair
With this, it will be convenient to consider clauses 13 to 17 stand part, and that schedule 5 be the Fifth schedule to the Bill.
Johnny Mercer
A discrepancy currently exists within the Armed Forces Act when it comes to the sentencing of personnel of equivalent rank in the Royal Navy. Under the current law, commanding officers are empowered at summary hearing to award a sentence of detention to personnel up to and including the rank of leading hand. However, this does not apply to the Royal Marine rank of corporal, a position that is equivalent to that of a leading hand. Should a commanding officer decide at summary hearing that an offence, if proven, might attract a sentence of detention for a Royal Marine corporal, that individual would have to be referred to the court martial, where such a punishment could be imposed.
As a result of this discrepancy, there is a lack of clarity in how discipline is administered for all equivalent ranks within the Royal Navy under the terms of the Armed Forces Act. This clause seeks simply to remove that disparity by aligning sentencing powers available to commanding officers of leading hands and Royal Marine corporals at summary hearing.
Question put and agreed to.
Clause 12 accordingly ordered to stand part of the Bill.
Clauses 13 to 17 ordered to stand part of the Bill.
Johnny Mercer
On a point of order, Mr Sunderland. Clearly, I want to answer everybody’s questions. I have checked with my team and there was no question from the right hon. Member for North Durham, but we will go over Hansard again, and if I have missed anything, I will go back to him to ensure that he has the answers he requires.
Johnny Mercer
I do not think that is a point of order; it is a personal opinion.
The Chair
Order.
Clause 18
Posthumous pardons in relation to certain abolished service offences
Question proposed, That the clause stand part of the Bill.
Johnny Mercer
Clause 18 reflects the Government’s commitment to the fair and equal treatment of lesbian, gay, bisexual and transgender armed forces personnel. The clause amends section 164 of the Policing and Crime Act 2017 to extend posthumous pardons for very old, abolished service offences.
Presently, section 164, in so far as it relates to the armed forces, refers only to historical service offences from before 1881 of men who served in the Navy, but not of those who served in the Army or the Royal Marines, the latter being when ashore. The amendment will ensure that those who served in the Army or Royal Marines before 1881 and were convicted at court martial for now abolished service offences can be pardoned for those offences. The RAF is not affected by the amendment because it was not constituted until 1917 and is already covered in the existing provisions of section 164. I am pleased that through this clause, we continue to address historic injustice and demonstrate that the military is a positive place to work for all who choose to serve.
LGBT personnel have made, and continue to make, significant contributions to the armed forces. I hope that the Committee has seen the work that we have done over the past 12 months to try to right the horrendous wrongs that were done to that community during their time in service.
Carol Monaghan
How will the Minister determine who is in that group? Many people in the LGBT community left the armed forces, but not because they were convicted of being LGBT. They left under other circumstances—in some ways, to make it easier for the military to get rid of them. Can he give a bit more detail on how he will identify those affected? That has to be done.
Johnny Mercer
The hon. Lady makes a really good point, and there is a lot to work through in that space. There is also the question of those who would have received the medal for long service and good conduct but were asked to leave because they were part of the LGBT community. I have been clear that the apology and medal restoration is a first step. We are working through the legal ramifications of addressing some of those historical wrongs. That is ongoing, but I am unable to comment on the progress at the moment.
Question put and agreed to.
Clause 18 accordingly ordered to stand part of the Bill.
Clause 19
Power of British overseas territories to apply AFA 2006 etc
Question proposed, That the clause stand part of the Bill.
Johnny Mercer
Clause 19 confirms that a British overseas territory can rely on section 357 of the Armed Forces Act 2006 to apply the UK service justice system to a British overseas territory force even if the section does not extend to that territory. The clause is necessary as the UK Government and the Government of Gibraltar have been working on Gibraltar legislation, which would bring the Royal Gibraltar Regiment into the UK service justice system in reliance on section 357.
Johnny Mercer
I do not think that is rabbiting on. I think that is a very personal insult, Chair. Is there a point of order or an intervention, or shall I carry on?
The Chair
Order. Minister, please carry on. I urge you to slow down in accordance with the Member’s wishes.
Johnny Mercer
I will of course slow down my speaking to make sure my hon. Friend can clearly understand what I am saying.
Johnny Mercer
I am terribly sorry—my right hon. Friend, with emphasis on the friend.
The clause is necessary because the UK Government and the Government of Gibraltar have been working on Gibraltar legislation, which would bring the Royal Gibraltar Regiment into the UK service justice system in reliance on section 357. This is the first time that a British overseas territory has made use of section 357.
Unlike other British overseas territories, as a result of amendments made in 2011 and 2016, the Armed Forces Act 2006 no longer extends to Gibraltar. This clause therefore confirms that the Government of Gibraltar can make use of section 357 of the Armed Forces Act 2006 to apply the service justice system contained in the Act, with or without amendment, to the Royal Gibraltar Regiment.
Johnny Mercer
Is my right hon. Friend asking me to predict the future? Is he asking how many times they are going to use this power?
Johnny Mercer
The clause simply brings the Royal Gibraltar Regiment and the use of section 357 of the Armed Forces Act into line with our other overseas territories. It is simply about aligning what happened when the 2006 Act came in. The amendments that were made in 2011 and 2016 no longer extend to Gibraltar, because of changes in the overseas territory. We are simply realigning Gibraltar with the rest of the overseas territories at this time.
Johnny Mercer
I would be delighted to write to my right hon. Friend.
Question put and agreed to.
Clause 19 accordingly ordered to stand part of the Bill.
Clauses 20 to 26 ordered to stand part of the Bill.
New Clause 1
Age of Recruitment
“(1) The Armed Forces Act 2006 is amended as follows.
(2) Section 328, subsection 2(c): leave out “without the consent of prescribed persons.”—(Carol Monaghan.)
This new clause would raise the age of recruitment into the Armed Forces to 18, in line with NATO allies and UN standards.
Brought up, and read the First time.
Mr Holden
I agree with a lot of what the right hon. Gentleman has said. I have had constituency cases of young people who have really benefited from going to Harrogate at age 16, who are thoroughly enjoying and making the most of their time in the armed forces, and who have been joining up with our local regiment, the Rifles, as part of that. I urge hon. Members to think properly about the new clauses and the impact that they will have on some young people who have found a real path in the Army, with the extra training and support that it can provide both educationally and more broadly.
Johnny Mercer
The new clauses seek to raise the age of recruitment to the armed forces to 18, and to ensure that recruits under 18 serve the same period of time as those who enlisted at the age of 18. 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.
We take our duty of care to entrants aged under 18 extremely seriously. Close attention has 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. The provision of education and training for 16-year-old school leavers provides a route into the armed forces that complies with Government policy on education while also providing a significant foundation for emotional, physical and educational development throughout an individual’s career.
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, which is checked twice during the application process. Additionally, parents and guardians are positively encouraged to engage with the recruiting staff during the process. Service personnel under the age of 18 are not deployed on hostile operations outside the UK, or indeed on operations where they may be exposed to hostilities.
The hon. Member for Glasgow North West is concerned that people who join the armed forces before their 18th birthday serve longer than those who join after their 18th birthday. However, this is not a matter of length of service, but a matter of discharge. The rules on statutory discharge as of right—DAOR—allow all new recruits, regardless of age, to discharge within their first three to six months of service if they decide that the armed forces is not a career for them. Additionally, service personnel have a statutory right to claim discharge up to their 18th birthday, subject to a maximum three-month cooling-off period. These rights are made clear to all on enlistment.
Ultimately, service personnel under the age of 18 have a statutory right to leave the armed forces up until their 18th birthday and without the liability to serve in the reserve, as an adult would. However, the benefits of an armed forces career, including for under-18s, are very clear. The armed forces remain one of the UK’s largest apprenticeship providers, equipping young people with valuable transferrable skills for life. Irrespective of age, all recruits who need it receive education in the key skills of literacy and numeracy; and, also irrespective of age, over 80% of all recruits enrol in an apprenticeship programme, equipping them with the skills that they need to succeed and which they will continue to build on throughout their careers, serving them well when they leave.
The armed forces offer apprenticeships across a broad range of specialisations, including the engineering disciplines, digital and communication technologies, construction, catering, human resources and administration. Ofsted regularly inspects our initial training establishment, and we are very proud of the standards that we achieve. Indeed, over the last 10 years, Ofsted has documented significant improvements in, among other things, support with English and maths, under-18s and care leavers, injury reduction, retention rates, communication with parents and staff selection, training and development.
Despite that record, we guard against complacency and recognise that there is always more that we can do. One example is the new inspection framework that we have agreed with Ofsted to align more closely with the unique challenges of initial military training.
Mr Holden
I recognise what the Minister says about Ofsted, but I want to highlight a concern of a family in my constituency, whose son, Dan Bravington, was at Harrogate and has gone through basic training. As part of parental buy-in, one of the great things that they like to see is the passing-out parades at the end. When will those parades restart? They are an important way of binding families, especially those of young people, into the broader military family.
Johnny Mercer
My hon. Friend is right that passing-out parades are a huge part of the journey of our forces’ families through the system. He will be aware, though, that generally we align with Public Health England’s advice and the Government’s direction. We are looking to get those parades going as soon as possible, and I am acutely aware of the effect on families of not attending them. Guidance will be issued in due course in line with the Government’s expectations on a relaxation of restrictions.
We welcome the independent scrutiny of Ofsted and the confirmation that it provides that we treat our young recruits well. Our armed forces provide challenging and constructive education, training and employment opportunities for young people, as well as fulfilling and rewarding careers. Following those assurances, I hope that the hon. Member for Glasgow North West will agree to withdraw the amendment, but I thank her for her careful consideration. I know that her husband is a veteran, and I am extremely grateful for the thoughtful way in which she applies herself to these subjects. I look forward to engaging with her further on these important issues down the road.
Carol Monaghan
It is interesting to hear Members talking about the positive experiences of young people. Many Members will know that I am a teacher by profession. A number of the young pupils I taught went on to join the Army at age 16. Some of them had an extremely positive experience, as I highlighted in my comments; however, we need to look at the 30% who are dropping out. Why is there such a high drop-out rate?
For that 30% of 16 to 17-year-olds, some of whom do not have the strongest educational or family backgrounds, all they have from joining the Army is another failure under their belt. They have missed out on educational opportunities in the period they have been in the Army, and it is difficult to rejoin the education system after having dropped out of the Army. Also, there are under-18s who are on active service. They might not be on the frontline, but they serve in the Royal Navy on submarines.
On new clause 2, the Minister said that up to the age of 18, people can drop out. We understand that, but the problem is that once they turn 18 the clock starts again, and it is then four years beyond that before they can drop out. That is what they are signing up to. Their entire service is a six-year commitment, essentially, rather than a four-year one. If we were to equalise the opportunity for the youngsters who are joining up in comparison to adults who join aged 18, they should be able to leave sooner. They should simply be committing to another two years, not another four.
Mrs Hodgson
It is a pleasure to follow the hon. Lady. New clause 12 would require the Government to do three things: first, to produce a definition of “priority care” to help primary care clinicians to deliver on the commitments in the armed forces covenant; secondly, to conduct a review of mental health waiting time targets for service personnel and veterans; and, finally, to produce a resource plan to meet current waiting time targets. I shall address each in turn.
“The Armed Forces Covenant Annual Report 2020” acknowledges the confusion about what priority care means. It says that
“in practice this remains inconsistent, and there is a lack of clarity about the interpretation of the policy by government, clinicians, and the NHS.”
During oral evidence to this Committee, Ray Lock, from the Forces in Mind Trust, said that
“anything you can do to provide greater certainty would be helpful.”
The first part of this new clause therefore seeks to do just that and provide a definition as to what the Government really mean when they talk about priority care and treatment.
Moving to the second part of the new clause, on a review of mental health waiting time targets for service personnel and veterans, I have already written to the Minister regarding waiting times under TILS—the veterans’ mental health transition, intervention and liaison service—which have not been met. The average waiting time to be offered a face-to-face appointment for TILS in 2019-20 was 37 days, which misses the target of 14 days. Conducting a review of mental health waiting time targets for service personnel and veterans would establish why they are not being met and—to move to the final part of the new clause—what action needs to be taken to address that gap.
I know that the Minister is proud of the launch of Operation Courage, but I urge him to continue to seize this moment to make real and measurable change to the mental health services for serving personnel and veterans. This new clause would bring much-needed clarity to the priority care promised through the covenant and is designed to address the issue of waiting times not being met. I know that the Minister will want to resolve those issues and I therefore hope that he takes the opportunity offered by the new clause.
Johnny Mercer
I pay tribute to the hon. Member for Washington and Sunderland West and her dogged support for these issues. The problem that the Government have with new clause 12 is the fact that this stuff is already covered in the annual covenant report, as required by the Armed Forces Act 2006. On the issue of waiting time targets and resource plans, I refer hon. Members to the armed forces covenant report, which contains that suite of metrics concerning physical and mental health service provision.
I recognise that the hon. Lady has written to me, and I am investigating the figures that were presented in the House. I have a dashboard that shows me waiting times in TILS, the CTS, which is the complex treatment service, and HIS, the high intensity service, across the country. If it is wrong, I will write to her and correct the record, but above that, I will do everything I possibly can to drive down those waiting times.
The metrics assessing health service performance are kept under constant review to ensure that they continue to usefully measure the state of health service provision in England. Separate reporting in this case would be disproportionate. Although I appreciate the desire to pin down in general terms the definition of “priority care”, we must be circumspect in doing so or risk the possibility of unduly binding those public bodies that are in scope to a model that would not necessarily meet the needs of the local population. It is for that reason that we designed the legislation around a duty to have due regard. That ensures that service deliverers have the flexibility to cater for local requirements, while ensuring an increased awareness and understanding of the armed forces covenant.
The Department will be developing guidance with a wide range of stakeholders over the next year. It will include an explanation of the unique features of service life and the sacrifices made by the armed forces community. It will explain how these obligations and sacrifices can cause disadvantage for the armed forces community in respect of their ability to access goods and services.