Exchange of Naval Nuclear Propulsion Information Agreement

Baroness Goldie Excerpts

Monday 17th January 2022 Grand Committee

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, I first thank the noble Baroness, Lady Hayter, and her committee for their report and for calling this debate. I also thank all noble Lords for their genuinely interesting and very well-informed contributions.

Let me just reprise the salient features of the AUKUS information-sharing agreement. I am very grateful to the noble Baroness, Lady Hayter, who referred to it as being an agreement of strategic significance. My noble friend Lord Lansley made positive comments about the process and the agreement itself and the noble Lord, Lord Hannay, offered a very insightful and reflective commentary. This agreement is based on existing information-sharing practices in place between the United Kingdom and the United States. It will remain in force for only a limited period, and it is necessary in order to enable this key piece of work on submarine nuclear propulsion to move forward.

It is a binding international agreement in law. The noble Lord, Lord Bilimoria, raised the important question of what happens if there is a change of Government. None of us has the capacity to predict or control what properly elected Governments in other states do, but this is a binding international agreement. I think that everyone understands the significance and strategic importance of this agreement to Australia, and I therefore very much hope that the arrangement is secure. If there is a change of Administration in any of the three countries—I do not anticipate that happening in this country; let me make that clear—I would hope that the binding legal dimensions of this agreement would obtain.

In so far as the procedure within the United Kingdom is concerned, we laid the agreement before Parliament in November 2021 for scrutiny in the usual way, and I thank the committee for its role in that process. I thought that the noble Lord, Lord Tunnicliffe, was rather disparaging about the agreement. He thinks it is fragile. With respect, I disagree: I think it is robust and focused. There is very detailed work under the agreement now proceeding. He was unduly pessimistic in saying that he is certain it will go wrong. I disagree. I have every confidence, with the structures in place, that this is an important piece of work, not just for our international interests but also for our domestic interests. It is an exciting prospect, and I do not share his pessimism.

I thank the committee for its scrutiny of the agreement and for the report that it has produced. My noble friend Lady McIntosh asked when we expect it to be ratified, and the answer is by the end of January. For future agreements, the Government would of course comply with any applicable requirements of the Constitutional Reform and Governance Act 2010. The committee drew specific attention to amendments and whether they would be subject to parliamentary scrutiny. Understandably, a number of your Lordships raised this issue and sought clarification. As I have said, the agreement is based on existing information-sharing practices in place between the United Kingdom and the United States, and it will remain in force only for a limited period, enabling the initial programme of work. In these circumstances, the Government consider it unlikely that it will need to be amended during its time in force.

The terms of a binding international agreement, including those on the method of consent to be bound—for example, ratification—are subject to negotiation on a case-by-case basis with international partners. The noble Baronesses, Lady Hayter and Lady Smith, focused particularly on this point, as did my noble friend Lord Lansley. The nature of what happens in the course of the discharge of the functions under the agreement dictates, to some extent, how these matters are approached. Certainly, they would have to be approached with trilateral agreement, and we cannot anticipate what might arise that would need adjustment. We cannot anticipate whether they would raise, for example, issues of commercial confidentiality or national security. The same applies to the nature and form of any follow-on agreement, but I make clear to the Committee that the Government have previously indicated their intention that the majority of important treaty amendments be subject to ratification and submitted to Parliament for scrutiny in accordance with CRaG. I hope that provides an appropriate level of reassurance to Members of the Committee.

[Lord Lansley (Con)]

Is it reasonable to infer, from what my noble friend has said, that if a follow-on agreement is subject to examination by the treaties committee in the Australian Parliament, it will also be subject to scrutiny through CRaG in this Parliament?

[Baroness Goldie (Con)]

I wish to reassure my noble friend and the Committee that the spirit and intention of the Government is that scrutiny is important; it is at the heart of what they wish to see Parliament do, and it would be exceptional if scrutiny were denied. I hope that reassures my noble friend to some extent.

Moving on to the substance of AUKUS itself, it is a security and defence partnership between three like-minded, democratic allies to enhance security and stability in the Indo-Pacific region and globally. AUKUS is not a new treaty, it is not a mutual defence agreement, and it does not replace nor cut across other alliances, such as NATO or Five Eyes; it complements them and supports their aims.

As your Lordships will be aware, the main effort under AUKUS is the delivery of a nuclear-powered submarine capability to Australia. In September last year, an 18-month programme of work commenced to understand how we can best achieve this goal. I want to be clear that Australia asked for our help in acquiring a nuclear-powered submarine; we are meeting the request of a close partner with whom we have a long history of co-operation, including on submarines. Indeed, the noble Lord, Lord Bilimoria, spoke with authority on our long-standing United Kingdom/Australia relationship.

Our work to deliver this capability for Australia reflects the unique level of trust and co-operation between our three countries, and we can rightly be proud of that. This will help Australia to fulfil its defence and security responsibilities and to promote stability and security in the region, which this Government strongly support. As your Lordships will be aware, we have built and operated a world-class nuclear-powered submarine capability for more than 60 years. We bring deep expertise and experience to this partnership, as indeed do our American allies. AUKUS showcases the UK’s competitive and innovative defence industry and our role as a global leader in science and technology.

I emphasise, because a number of your Lordships alluded to this, that the programme of work will be fully in line with our international obligations. Australia has impeccable non-proliferation credentials, and it does not, and will not, seek nuclear weapons. It is important to reiterate that the proposed submarines will use a nuclear reactor uniquely as a power source. All three partners take their obligations under the nuclear non-proliferation treaty extremely seriously and have been in regular close contact with the International Atomic Energy Agency as this agreement moves forward into the next stage.

Let me try to deal with some specific points that arose during the debate. My noble friend Lord Lansley raised the Japan-Australia Reciprocal Access Agreement. We enjoy a close and growing bilateral security relationship with Japan. AUKUS does not replace or reduce the importance of any other strands of our relationship with Japan. Instead, through AUKUS, we intend to deepen, not limit, co-operation in the Indo-Pacific region. The Japan-Australia Reciprocal Access Agreement is for these Governments to comment on, but is a sign of their developing strategic partnership.

The noble Baronesses, Lady Liddell and Lady Smith, raised the transfer of intellectual property. The agreement provides protection for the originating parties under Article VIII. As part of the ongoing programme of work, we will further consider how to deal with the exchange of intellectual property.

The noble Baronesses, Lady Hayter and Lady Smith, the noble Lord, Lord Hannay, and my noble friend Lady McIntosh raised the important issue of international relations, not least with France, Europe and China. We fully recognise the French disappointment. We are keen to move forward and are keeping channels of communication open. As the Prime Minister said to President Macron, we are committed to the United Kingdom-France relationship and we believe in the powerful role we can play together.

France is an important partner to the United Kingdom. We have a long-standing security and defence relationship with France that is underpinned by the Lancaster House treaties and by us being close NATO allies. We continue to consult each other daily on international defence and security matters, and that defence relationship remains strong. As was recently illustrated, our close collaboration on Afghanistan and our military deployments in the Sahel to tackle terrorism indicate that we are working together and consulting each other, just as we are working together to tackle global challenges such as climate change.

The noble Baroness, Lady Hayter, and the noble Lord, Lord Hannay, focused particularly on China. I make clear that AUKUS is not aimed at a specific country; it is about supporting our allies and promoting stability in the Indo-Pacific region. AUKUS will work to protect our people and support a peaceful and rules-based international order. It is about the long-standing and deepening defence and security relationship between the United Kingdom, Australia and the United States.

The noble Baronesses, Lady Hayter, Lady Liddell and Lady Smith, and the noble Lord, Lord Bilimoria, specifically raised Five Eyes. That remains a unique and highly valued partnership. We have been sharing intelligence to address global threats and support international security and stability for over 60 years. We noted that Prime Minister Ardern of New Zealand welcomed the increased engagement of the United Kingdom and United States in the region. We compare notes and work together as five like-minded countries on a range of issues and in a variety of formats. Of course, each of us also has its independent foreign policy and works with different partners and in different groupings, according to context and need.

My noble friend Lady McIntosh asked about devolution. In this context, defence and foreign affairs are matters reserved for the Westminster Government, so there is no specific devolved locus on this matter. When the MoD receives inquiries from representatives of constituencies in the devolved nations or from the devolved Governments, we respond and always do our best to co-operate and be helpful.

The noble Lord, Lord Hannay, particularly raised the nuclear aspect to this and the responsibilities of the United Kingdom, United States and Australia. I give the reassurance that we want to reinforce the global non-proliferation architecture and set a precedent for the future that retains confidence in the fulfilment of our NPT obligations. We regularly update the International Atomic Energy Agency and are fully engaging with it throughout the 18-month feasibility study. We will continue to be transparent and consultative, especially on issues regarding nuclear materials, facilities and activities relevant to the IAEA.

The noble Lords, Lord Hannay and Lord Bilimoria, were interested in the inherent character of this new security partnership. That is what it is. I think they were seeking clarification and reassurance. This is a partnership focused on joint capability development and technology sharing. It reflects the unique level of trust and co-operation between the UK, the United States and Australia. It is about nuclear propulsion, not nuclear weapons and, very specifically, it does not include any obligation to consider an attack upon one as an attack against all participating states. That is not the character of this agreement.

The noble Lord, Lord West, sought detail about specific representation on various groups within the UK, the United States and Australia. I do not have specific information to that level, but I shall investigate, and if I am able to share information with him, I shall do so.

[Lord West of Spithead (Lab)]

My other question relates to the fact that the Americans have nominated a very high-ranking person to drive this programme. It seems that we are allowing our National Security Adviser, who is responsible for all sorts of things, to do it. As we know, because of the sheer complexity of this and the impact it might have on our CASD, our nuclear programme and all the other things, having one person to whom we can say, “Right, this is your job. You’re responsible to the National Security Adviser and the Prime Minister, and if it goes wrong, it’s your head that gets chopped off” is the sort of thing we need rather than leaving it quite so loose. Are we going to do that?

[Baroness Goldie (Con)]

I am grateful to the noble Lord for expanding on that. As I said, I do not have specific information and I would not want to mislead him by giving him some general position that may be completely inadequate. I undertake to go back, inquire and share with the noble Lord whatever information it is possible for me to disclose.

The noble and gallant Lords, Lord Houghton and Lord Boyce, raised legitimate and understandable concerns about how all this impacts on our nuclear submarine-building programme and whether it puts any of it in jeopardy. In relation to Dreadnought, I want to make it clear that the programme remains on track to deliver to schedule and within the original budget as provided for in the strategic defence and security review in 2015. The noble Baroness, Lady Smith, asked about the overall budget situation. I gently remind her that the defence budget settlement which we saw last year is one of the most generous that we have seen in generations. That has been recognised widely and within the defence community.

In relation to Astute submarines, which, again, the noble and gallant Lords, Lord Houghton and Lord Boyce, were interested in, my understanding is that they are making good progress and that they are all committed to be delivered by 2026.

The noble and gallant Lord, Lord Boyce, also raised the 1958 agreement regarding nuclear weapons. He also mentioned other historical agreements which focused on nuclear weapons. I remind the Committee that AUKUS is commencing a programme of work to identify ways to deliver a nuclear-powered but not armed submarine capability to the Royal Australian Navy. That is a gentle reminder that we are dealing with matters of nuclear propulsion under this agreement.

The noble Baroness, Lady Liddell, wished to understand how all this relates to the Five Eyes defence alliance. Let me reassure her that that is first and foremost a highly valued intelligence-sharing partnership. Over the years, it has grown beyond intelligence sharing to respond to changing threats and challenges. AUKUS is an enhanced trilateral security partnership with a specific remit. Both as individual Five Eyes nations and as a group, we will continue to work with other like-minded allies, forming the right alliances to better face specific common challenges.

The noble Baroness was also interested in how AUKUS contributes to the United Kingdom’s Indo-Pacific strategy—forgive me for sounding hoarse; as far as I am aware, I have nothing infectious, and I tested this morning before coming to mix with you all.

[Lord West of Spithead (Lab)]

A likely tale.

[Baroness Goldie (Con)]

It would have been difficult for the noble Lord to corroborate it; I was doing it in the privacy of my bedroom.

AUKUS is a concrete demonstration of the commitment made by the UK in the integrated review to deepen co-operation, partnerships and engagement in the Indo-Pacific. We are committed to deepening relationships with countries in that region. By 2030, the region will represent more than 40% of global GDP, so the announcement is a clear demonstration of both our interest in and commitment to that area.

The noble Baroness, Lady Smith, said, “Well, this is all fine and well, and we understand what it means for the Indo-Pacific area, but what about everything else in defence?” I say to her that if we take in conjunction the integrated review and the recent defence Command Paper, not to mention the recent Future Soldier paper which was the subject of a Statement in the Chamber, we see in all of those, detailed information on how we meet threat, wherever that is coming from, whether it is directed at us within the UK or at our partners and allies. We have a clear plan as to how we think we should meet that, and it is a plan that will endure in the forthcoming decades.

This is an important agreement for Australia, the United States and the United Kingdom, as it is for the wider issues of stability in the region. The noble Lord, Lord West, commented both shrewdly and authoritatively on those issues. The agreement certainly reflects the importance we attach to the area in terms of the integrated review—that was also recognised by my noble friend Lord Lansley.

[Lord Bilimoria (CB)]

I earlier listed the countries that make up the Quad and said India, Australia, Japan and—by mistake—the UK. Of course, it is the US; the noble Lord, Lord Lansley pointed that out to me.

I cannot resist a serendipitous opportunity. The noble Baroness, Lady McIntosh, asked me why the UK is not a member of the Quad. With the integrated review and our tilt to the Indo-Pacific, perhaps there is an opportunity for the UK to join the Quad in the future.

--- Later in debate ---

[Baroness Goldie (Con)]

We always keep a vigilant eye on wherever we can find friends and partners. As I have already indicated, we also find different ways of working with them.

AUKUS is not uncontested. As an emerging new partnership, it is open to being misunderstood. All three AUKUS partners are therefore committed to engaging positively and collaboratively with international partners on the regional and global benefits of AUKUS while pushing back on disinformation about arms races and nuclear proliferation.

In addition, we have committed trilaterally under the auspices of AUKUS to enhancing the development of joint capabilities and technology-sharing beyond the nuclear propulsion that we have discussed today. Our initial area of focus for this effort is cyber capabilities, artificial intelligence, quantum computing and additional undersea capabilities. We have agreed to broaden this into other areas as our partnership develops.

The UK will use this element of AUKUS as a platform to leverage its world-leading science and technology sector, working with trilateral partners to identify and exploit opportunities for us to develop new defence capabilities from which we can all benefit. We will foster deeper integration of security and defence-related science, technology, industrial bases and supply chains. In conclusion, this is a significant partnership and a positive development for the United Kingdom, as it is for Australia, the United States and the broader region.

[Lord Boyce (CB)]

Thank you for allowing me to intervene. Can I return to the Nassau agreement for a moment? I am aware that we are talking about not nuclear weapons but nuclear propulsion, but I quote the Explanatory Memorandum:

“The US-UK Agreement for Co-operation on the Uses of Atomic Energy for Mutual Defense Purposes of 1958 … also prevents the UK and US from disclosing restricted naval nuclear propulsion information to other countries unless specifically authorised.”


We fell foul of that with the Canadians in 1987; that is what I am talking about. It is not about nuclear weapons, but nuclear propulsion, which the Explanatory Memorandum itself admits. As I say, the agreement does not mention this per se. I come back to the point of my original speech: should we have some sort of codicil or amendment to the 1958 agreement to make sure that we do not fall foul of it in this transfer of nuclear propulsion information to Australia?

[Baroness Goldie (Con)]

I am grateful to the noble and gallant Lord for that clarification; I apologise for misunderstanding his question. I shall need to look at that in detail and revert to him with such information as I am able to find.

In conclusion, I thank the noble Baroness, Lady Hayter, and her committee. I also thank your Lordships for a stimulating debate.

Ajax Noise and Vibration Review

Baroness Goldie Excerpts

Thursday 16th December 2021 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, I can associate these Benches with many of the questions from the noble Lord. He rightly highlights the fact that many government assertions over recent years have not been matched with what we now learn from the review.

I agree with the Minister in the House of Commons when he indicated that he read the report with a deep sense of regret. If anything, he needs a degree of commendation for highlighting these issues. The problem had been that many of them had not been highlighted thus far, and we have had to rely on this review. As the noble Lord indicated, the review states that nothing in it

“detracts from the fact that GDUK has designed and built what MOD maintains is thus far a vehicle which is not fit for purpose and does not meet the contracted specification”.

The Minister replied that the key element of that was “thus far”, but he did not tell the House of Commons when he believed that these vehicles would be fit for purpose, and he did not say when they would meet the contracted specification. As the noble Lord indicated, the National Audit Office, in reviewing the procurement of MoD equipment, highlighted that the expenditure as of March 2021 had been £3.755 billion. How on earth can that amount, of a total of £5.5 billion, be committed when the review had indicated that these vehicles were not fit for purpose and would not meet the specification? If the Government’s position is that the vehicles will do so, when will that happen?

The NAO in paragraph 11 of its report highlighted part of the challenge as being the Government changing the specification. However, it said that that accounted for an 11 months’ delay to the programme. It high- lighted more than 13 programmes with 254 months of delays in MoD procurement—an astonishing amount. Paragraph 5.11 indicated in relation to Her Majesty’s Treasury that:

“The assessment for the Ajax armoured vehicle (October 2020), stated the programme remained a VFM”—


value-for-money—

“solution despite slippage of entry into service from July 2020 to June 2021, with a worst-case scenario of slippage to December 2022.”

How can the Treasury claim that there is a continued value-for-money solution while this review indicated that the vehicles were not fit for purpose and did not meet the contracted specification? Will all the vehicles now be in operation for our servicemen and women by the time of the worst-case scenario of December 2022 or are the Government changing that position?

I should declare that I represented a military barracks in my former constituency and was in northern Iraq last week. I know well the great pressure that our Armed Forces personnel have had to endure over many years. The welfare of those individuals should of course be a paramount priority. The Minister in the Commons did not indicate any detail about how support will be provided to those affected, so if the noble Baroness could provide more details, I should be grateful.

My final question relates to a Statement that the Minister made to this House in March this year. When asked about procurement in the MoD, she said in relation to a question from my noble friend Lord Addington about overruns and expenditure increases:

“The scenario that the noble Lord envisages is unlikely to arise because from now on procurement will proceed on a very different basis from what we have known in the past.”—[Official Report, 24/3/21; col. 845.]


However, we had to rely on this report and the Minister in the Commons stating in his concluding remarks yesterday that the report

“lays bare a deep malaise, which is cultural and results in systemic failures across our organisations.”—[Official Report, Commons, 15/12/21; col. 1082.]

How on earth can those two areas be reconciled? Can that department be relied upon, even by commissioning a senior legal figure, to learn these lessons? Would it not be better if that legal figure responded to a different and external organisation to ensure that deep malaise and cultural and systemic failures are not repeated in the future?

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, I, first, thank the noble Lords, Lord Coaker and Lord Purvis, for their observations and comments.

I pay tribute to my honourable friend Jeremy Quin, the Minister in the other place, for his determination to lift the drain covers to find out what had been happening. I am grateful to the noble Lords, Lord Coaker and Lord Purvis, for acknowledging his efforts. I also thank David King, the MoD director of health and safety and environmental protection, for his report, which, although deeply troubling, is also robust, analytical, comprehensive and helpful.

The noble Lord, Lord Coaker, quite understandably raised the catalogue of failings and asked how this could be. We are absolutely clear about what the recent report has produced. It confirmed that there were serious failings in how the MoD handled the health and safety concerns regarding Ajax vehicles. The review concluded that it was not the failure of a single individual but a complex combination of the Armed Forces’ relationship to harm and weaknesses in the MoD’s acquisition system. It also pointed to missed opportunities to act on safety and risk management across the programme.

Let me make it clear that all that is unacceptable. My honourable friend in the other place made that clear and I repeat that to your Lordships. That is why I say that this report, although deeply troubling, points to a way forward in a constructive and helpful manner. Your Lordships will be aware—the noble Lord, Lord Purvis, alluded to this—that the recommendations in the report not only cover Ajax but reach out helpfully into the broader areas of procurement, particularly in relation to health and safety, and what changes might be made.

The noble Lord, Lord Coaker, asked how no one knew what was going on. It has emerged that warnings were not given sufficient attention; the report is explicit about that. Very troublingly, the Army did not believe that it was potentially causing harm to people as it was tacitly expected that soldiers could and should endure such conditions. That is utterly unacceptable, as the report makes clear. The recommendations are designed to ensure that a completely different and much more scrutinising approach to health and safety is adopted in future.

The noble Lord asked about the relevance of the follow-on review. I suppose that the review will look partially at the current health and safety report that has been published, but it is really determined to look at the whole Ajax programme to try to work out exactly what was going on beyond health and safety, and why communication was so poor and warnings were ignored. I make it clear that if gross misconduct is disclosed by that follow-on review then the appropriate administrative and disciplinary action will be taken.

The noble Lord asked specifically about the Defence Safety Authority report. That report was withdrawn for good reason: it did not follow the process, quality control and due diligence that you would expect of an inquiry such as a formal initiation establishing and analysing the facts, gathering and verifying evidence and, of course, deploying peer review. Following the retraction of that report because it was not considered sufficiently robust to be proceeded with, the Defence Land Safety Regulator, which works within the DSA, followed up on the concerns directly with Army HQ and DE&S. Again, while that sounds reassuring up to a point, I fully understand, as the report has disclosed, that the whole background and territory of communication —of the warnings being given, of how those were acknowledged and what response was given to them— becomes very opaque, and that is utterly unacceptable. The follow- on review will certainly look very closely at those issues.

The noble Lord, Lord Coaker, also asked whether we were sticking with Ajax. As he will understand, Ajax is a very important piece of equipment. It is a step change in how we deal with carrying personnel and with deploying cutting-edge technology to do that safely and to have as precise a knowledge of battleground as possible. We have made it clear that we are working with General Dynamics to try to get to the root of the problem with a view to finding solutions, but I make it clear again to this House that we will not accept a vehicle that is not fit for purpose. As my honourable friend said in the other place yesterday, it remains impossible to share with your Lordships 100% confidence that this programme will succeed, or, if it does, of the timing for achieving full operating capability.

In relation to overall capability, a point to which the noble Lord, Lord Coaker, referred, as did the noble Lord, Lord Purvis, we live in a world where we constantly consider, assess, adjust and, as necessary, plan what our response will be to threats. We will make sure that we are able to deal with whatever operational obligations fall upon us. Very particularly, I make it clear that this is not impacting on our operational capability nor on our obligations under NATO.

The noble Lord, Lord Purvis raised the matter of trials. As he is aware, trials have taken place and we are currently assessing them. The physical trials at Millbrook have concluded. They have generated hundreds of gigabytes of data, and we expect to see conclusions from the analysis shortly. We will then verify the data, conduct assurance trials where required and draw conclusions on the next steps. Over and above that, separate from the trials, General Dynamics has conducted its own tests of proposed modifications to address vibration issues. Once analysis is complete, the MoD will verify the results through subsequent trials.

The noble Lord, Lord Purvis, raised the follow-on review. It is important that we build on such knowledge as has now been gathered together, and I think the health and safety report is a robust foundation on which to do that. The Secretary of State’s intention to bring in a leading legal figure is absolutely right, and they will look objectively, analytically and dispassionately at whatever the evidence may be and draw conclusions from that. I cannot pre-empt that, but we await progress on it.

When I looked at the report, it was deeply concerning —and I can tell your Lordships that it was deeply concerning to my ministerial colleagues—that personnel worked in a vehicle that had the potential to cause harm. I find that utterly unacceptable. The 310 people identified as working on Ajax trials and training have all been contacted for assessment. We shall continue to monitor those who have been assessed. We encourage those who have either declined assessment or been unable to attend an assessment to come forward, and any identified with continuing or emerging conditions will be supported appropriately.

[Lord Berkeley (Lab)]

My Lords, listening to the questions and the Minister’s answers persuades me that this is a complete disaster, as we have debated in your Lordships’ House quite a few times now, and it does not seem to be getting any better. I am glad that some further work has been done; we have now spent billions on this, apparently.

I wonder how it is possible that the Army top brass has allowed the situation to get this far without coming along and explaining why it has got so expensive and why it does not work properly. In the previous debate, in addition to the effect on the soldiers inside the tank, there was the question of whether the thing can go backwards up a step or something, and I think I made a comment that the British Army probably does not think we ever retreat so it does not matter—I hope it has some better reasons than that for saying what it has. Nor can it fire on the move or do its designed speed. If any private company were ordering something at a hundredth of the cost of this thing and made these kinds of mistakes, they would have been sacked.

This has also been debated before in your Lordships’ House, but Ajax came out very badly in the Infrastructure and Projects Authority annual report. I remember asking at the time: do Ministers ever read that report, and do they take action? It is clear that in this case they have not, otherwise they would have done something by now to get the answers. I appreciate that the report is a step in that direction, but they need to take stronger action to control the costs.

My last question is: why do we need this at all? Is it really part of the Army’s necessary equipment? Do we need to spend all this money on tanks? I do not know where we deploy them apart from Salisbury Plain. Is it not time that someone took a step back and said, “Do we, as a medium-sized power in the world, need tanks that can’t go backwards and cause injury to the people inside them?” We do not seem to be questioning it.

[Baroness Goldie (Con)]

I will respond to the noble Lord’s questions in reverse order. Yes, Ajax is an important capability for the future British Army. It will provide a mobile, resilient and crewed ISTAR capability that is optimised for “find, understand and exploit” effects. It will offer the newest and most technologically advanced capabilities, equipped with a best-in-class sensor suite and other cutting-edge technological aids. It is a very important piece of equipment and I think that is universally acknowledged.

The contract for this is a firm-price contract. We know what the price is. It is now down to the company, in collaboration with the MoD, to resolve the issues that have been causing the noise and vibration.

The noble Lord raised the question of the IPA report. The IPA released its public data in July 2021, showing that the Ajax programme had moved from amber to red status back in April 2021. The then senior responsible owner asked the IPA to review the programme over concerns that it was not progressing as it should be. However, as the health and safety report indicates, that is just one element of a very confused system of accountability, communication, acknowledgement of warnings and reaction to warnings. The noble Lord is right to express concern about that, and I will not diminish the significance of his question. If you look at the recommendations of the health and safety report, there is a lot of comfort to be derived from it, not only in relation to the Ajax programme but the relevance of some of these recommendations to the wider procurement programme. The noble Lord is correct that there are still questions to be answered. That will fall within the jurisdiction of the forthcoming follow-on review.

[Lord Macpherson of Earl’s Court (CB)]

My Lords, I welcome the Government’s response to this report, and the involvement in the other place of Jeremy Quin, who was a first-rate official in the Treasury at the time of the financial crisis. I also think that this country still needs to be able to deploy tanks in Europe, fulfilling its NATO responsibilities. My question is a simple one, derived from 30 years of working at the Treasury. The MoD has undertaken countless reports over many generations to deal with problems of procurement. I would welcome an explanation from the Minister of why this time it will be different.

[Baroness Goldie (Con)]

I thank the noble Lord for his kind remarks about my honourable friend in the other place. Everyone is clear that Jeremy Quin has been like a terrier trying to get to the root of what has been going on here; hence we have much more information available to us today. This programme in particular has indicated and illustrated that there is no denying that there are weaknesses in the system. The defence director of health, safety, and environmental protection is owed a huge debt. He has analytically looked at the problems and come forward with rock-solid recommendations based on evidence. I can assure the noble Lord that it is the intention of the MoD to accept.

As the noble Lord is possibly aware, there are three recommendations that pose some practical problems. In principle, we understand what they are trying to do, and we are sympathetic to them, but we need to look at them more closely to see how they will work in practice. However, I am satisfied that these recommendations are very much a way forward. He will be aware that reforms have been adopted in the MoD in relation to contracts, procurement, and acquisitions. They have been working well. This programme started back in 2010, so it has been a long-standing development. The follow-on review will begin to answer some of the question that I know are uppermost in his mind, but I assure him that this is not a one-off. In terms of solutions, this will be looked at as a signpost to how we should act in the MoD and be regarded as a template for future procurements.

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

My Lords, it appears that there are no further questions on the Statement.

Armed Forces Bill

Baroness Goldie Excerpts

Consideration of Commons amendments
Tuesday 14th December 2021 Lords Chamber

Moved by

[Baroness Goldie]

That this House do not insist on its Amendment 1B, to which the Commons have disagreed for their Reason 1C.

1C: Because a presumption in favour of the offences in question being heard in the civilian courts is not necessary or justified.

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, with the leave of the House I will speak also to Motion B.

Your Lordships will understand that the Bill is essential. It must pass this week or the Armed Forces Act 2006 will cease to have effect. As my honourable friend Mr Leo Docherty, the Minister in the other place, made clear yesterday, we have been listening to the concerns of noble Lords and honourable Members and the Government have responded to them. We recognise that all Members of this House want to do the best they can for our Armed Forces and to support them in the vital role that they play.

I turn first to the views put forward by the noble Lord, Lord Thomas of Gresford. I think we all agree that criminal wrongdoing must be robustly and swiftly addressed for the sake of our service personnel and for the victims of crime. We respectfully maintain that the provisions in the Bill will meet these concerns. They will require civilian prosecutors across the United Kingdom to agree with the Director of Service Prosecutions protocols for determining in which jurisdiction cases should be heard. The Bill provides that civilian prosecutors will always have the final say on the choice of jurisdiction under those protocols.

The Government therefore agree that civilian prosecutors should be able to decide whether a case proceeds in the service or civilian jurisdiction. However, we are unable to agree that a role for the Attorney-General is needed, and we consider that it is wrong for there to be an explicit and inbuilt bias towards one system or the other. Each system is and should be capable of dealing with all types of offending, with decisions made by prosecutors on a case-by-case basis. The service justice system will be dealing with all offences when they occur overseas, and it really makes no sense to truncate our capability in this area and create the very real risk that the system could be seen as second class if serious offences such as rape and serious sexual assault can be dealt with in the service justice system overseas but not in the United Kingdom.

There was some discussion in this House last week about the implications of this amendment for Scotland and Northern Ireland. The earlier amendment applied only to England and Wales, giving the role of authorising a service justice prosecution to the Director of Public Prosecutions after consulting the Attorney-General. The latest amendment retains that feature but creates rules for Scotland and Northern Ireland, giving the authorising function to the Lord Advocate in Scotland and the Director of Public Prosecutions for Northern Ireland.

Let me be clear that this formulation remains unacceptable to the Government. As I have said, the provisions of the Bill already give the final say on jurisdiction to the civilian prosecutors: the Director of Public Prosecutions, the Lord Advocate, and the Director of Public Prosecutions for Northern Ireland. Our objection remains to any involvement of the Attorney-General or Attorney-General for Northern Ireland and to any inbuilt bias towards either system, for the reasons which I have explained.

We recognise, however, that we could increase confidence in the service justice system by being more open and transparent about the cases that the system is dealing with. This is why a specific commitment was given in the other place yesterday to improve our annual statistical update on offences contrary to the Sexual Offences Act 2003 and historic sexual offences dealt with in the service justice system to include other serious offences. Our bulletin in spring 2022, published on the GOV.UK website, will, in addition to reporting on rape statistics, now include granular data on cases of murder and manslaughter, and for sexual offending those cases involving personnel serving in the Armed Forces who are under 18 at the time of the offence. Furthermore, from January 2022, we will start to record separately information about domestic violence and child sexual abuse offences in the service justice system so that these too can be reported in our spring 2023 bulletin.

Greater reporting will enable the Government to be held to account and to transparently monitor the health of the service justice system so we can make adjustments and improvements where necessary. We know of course that the service justice system deals with a significantly lower number of cases than the civilian system and that small variances in the data can produce seemingly large swings in performance when expressed as percentages. However, low case numbers aside, the service justice system has trained police investigators, prosecutors and judges who are experienced and capable of dealing with the serious offences which are of concern here. We are strengthening and improving investigative capability through the defence serious crime unit.

I now turn to the views of the noble and gallant Lord, Lord Craig, on the need for a report to be laid within six months of this Bill receiving Royal Assent, setting out the implications of not applying a new covenant duty to central government. I appreciate the sincere desire that lies behind the original amendment. As the Minister explained in the other place yesterday, the Government have already committed to reviewing the operation of the covenant duty to indicate whether other policy areas or functions could be usefully included. We have listened carefully to the views expressed in both Houses and, recognising the strength of feeling across both, the Government have now committed to going further and have set out in clear terms how such a review will occur. I am pleased to repeat these clear terms, to share that commitment, and to set out as follows how we see such a review progressing.

The review will encompass the operation of the new duty across the UK, going further than your Lordships’ proposals, and it will consider whether it would be beneficial to exercise any of the powers conferred by this Bill to add to its scope. This will include specific consideration of whether central government and any of its functions could usefully be added. The Government will report on the review as part of the covenant annual report in 2023, 18 months after the new duty is expected to come into effect. This timescale is more realistic than the six-month timeline from Royal Assent suggested by your Lordships, which is too short a period for any meaningful review to take place.

Once the Bill is passed, elements of the new duty, such as the statutory guidance, will require further statutory consultation and parliamentary scrutiny. We expect to see the new duty standing up in law by the middle of 2022 at the earliest, which is around the time that your Lordships’ amendment would have required a report. We also need to allow for an implementation period to give local authorities time to adjust to their new responsibilities. Therefore, to conclude and publish the review at the 18-month point of the new duty having been in operation is most appropriate.

Recognising the level of interest in this new duty, we will provide an update in the covenant annual report in December 2022, some six months after the duty is expected to come into effect. We will be able to say more at this point about the scope and methodology for conducting the review, and Members of Parliament will have the opportunity to assess and comment in the 2022 covenant report debate. We are committed to ensuring that parliamentarians from both Houses can contribute and give their views as part of the review process.

I have sought to reassure this House where I have been able to do so. We are up against time, the Bill must pass, and I urge noble Lords to support the Government. I beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

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[Lord Coaker (Lab)]

My Lords, let me say once again that Her Majesty’s Opposition support the Bill; we have sought only to challenge the Government to improve it. I believe that, including today, it has been a very good debate in your Lordships’ House, with important contributions from all parts of the Chamber. As we have seen, this has led to many important clarifications and further commitments from the Government. In this, the House has been helped by the approach of the Minister, who has been both engaging and constructive in the work that she has done.

We accept the Government’s Motions A and B as sent back to the House today, but we remain determined to hold the Government to account as we go forward, ensuring that commitments made on the record—both in this House and in the other place—are indeed met. We remain disappointed that the Government have not agreed to Motion A1 in the name of the noble Lord, Lord Thomas of Gresford, which we have supported all along.

We will want to test the Government on the commitments that they have made on transparency. Leo Docherty MP talked about all sorts of statistics, which were now to be used by the Government to enhance transparency with respect to serious violence, serious sexual violence, the recording of sexual offences against under-18s and so on—and these will be included in the annual report. When reporting those statistics, however, what will happen if problems remain despite the Government’s belief that the service justice system, as it is to be constituted, will improve the situation? What if the situation does not change? Will that be the time, perhaps, for the Government to consider Motion A1 in the name of the noble Lord, Lord Thomas of Gresford, supported by the noble and learned Lord, Lord Thomas of Cwmgiedd, and my noble and learned friend Lord Morris of Aberavon? It would be helpful if the Minister could say how the Government will judge the statistics that they are committed to publishing with respect to dealing with sexual violence and sexual offences within the criminal justice system.

I turn to the amendment in the name of the noble and gallant Lord, Lord Craig, and, much as he has done, welcome the changes and further commitments that the Government have made on reporting with respect to the covenant, its scope and its extension to government—so that government itself must have due regard to it—with the first annual report to be published in 2023, and an interim report in 2022. We welcome that, but what happens if these reports show that change is needed, and how will they be reported to Parliament?

We believe that the Government have moved forward, making concessions and additional commitments. We thank the Minister for ensuring that the debate has taken place and has been used to inform decisions in the Ministry of Defence; I am sure that all your Lordships welcome that. However, as the Minister knows, serious questions remain around the amendment of the noble Lord, Lord Thomas of Gresford. We look forward to seeing how these will be dealt with as we go forward.

It would not be appropriate for us to allow the Bill to pass today without once again praising the bravery and professionalism of our Armed Forces. As well as their duty abroad, they are once again to be called upon to help in the fight against the pandemic. Whatever discussions and debates we have, they should know that this Chamber, and all your Lordships, recognise that duty and service as we pass this Bill. We will never, and should never, take that for granted.

[Baroness Goldie (Con)]

My Lords, I start by echoing the sentiments of the noble Lord, Lord Coaker, because throughout the Bill’s progress in this House, we have genuinely had well-informed debates which have been extremely helpful in the scrutiny of the legislation. I again pay tribute to all who have facilitated that positive review of it. I also thank the noble Lord for his kind remarks.

Let me try to deal with some of the points which have arisen. In relation to the service justice system, there was a sense of reprise of previously presented arguments. I know they were presented in good faith. Some have now been addressed by the Government, but, as your Lordships will be aware, others they reject. We have a fundamental point of principle here, which is that some of your Lordships feel that there should be a bias and an explicit tilt towards the civilian system, while the Government are not convinced that that is in the interests of the service justice system or of those who would have to use it. What matters is that the service justice system is robust, which it is, and this Bill introduces many improvements to it.

I do not want to bore your Lordships by repeating the arguments I have previously adduced as to why the Government support the approach of concurrency of jurisdiction. I simply observe that trial by jury is not a part of the service justice system, but we require a system which works both overseas and across the United Kingdom, is professional and has capability and capacity. That is what this Bill provides.

The noble Lord, Lord Thomas of Gresford, asked me specifically about publishing the detail of the protocols. I would direct him to Clause 7, creating a new Section 320A, and to subsection (8) of that, which directs that the current version of the protocol must be published in whatever manner the directors think appropriate.

I thank the noble and gallant Lord, Lord Craig of Radley, for his kind remarks and his acknowledgement of the Government’s willingness to hear his concerns and to seek to address them. I am not a position to deal with the specific point that he raised, but he will know that announcements are likely in the near future.

The noble Lord, Lord Coaker, raised two issues. He asked what would happen if the publication of the more detailed data and statistics for the service justice system caused concern. I said that we are very clear as a Government that that additional data will help to inform us as to where we may need to make adjustments or where improvements may be necessary if issues arise which occasion concern.

On the covenant, the noble Lord asked a similarly aligned question about the reports: what if they suggest that the positive progress we all want is not being made as effectively as we would hope? First, that will inform the Government, but, secondly, as his honourable friend in the other place said, it is the job of opposition to hold the Government to account and to scrutinise. I absolutely agree with that; that is what the Opposition exist to do. I know that the noble Lord, Lord Coaker, is an exemplar of holding me as a Defence Minister to account, and I am sure that formidable and tenacious approach will continue.

What this Bill and our debates are all about, and what we try to do in improving this legislation, is of course for the benefit of our Armed Forces. All of us are very conscious not only of what they have done over time, of the sacrifices they make and of the commitment they give, but, perhaps very particularly at this time, of the extraordinary support they have been giving to the country during the pandemic. I know that your Lordships will want on behalf of this Chamber to express our unqualified appreciation—

[Lord Thomas of Cwmgiedd (CB)]

Before the Minister sits down, I would be grateful if she could write at some point saying why trial by jury is not being conceded for members of the Armed Forces. It may require some legal argument. I would be delighted to read it.

[Baroness Goldie (Con)]

I will address the noble and learned Lord’s point in a moment, but if I may continue with my tribute, it is very important for this House to send a message to our Armed Forces that we absolutely value everything they are doing. I am particularly conscious of that at this time. Their contribution is extraordinary and invaluable to the country, and we would want them to know just how much we appreciate that.

The noble and learned Lord will be aware that the jury system is not part of the service justice system. It is the view of the Government that the service justice system is robust, that this Bill will make distinct improvements to it and that it has to operate in a manner which makes it fit for purpose both overseas and across the United Kingdom. That is what this Bill does. I beg to move.

[Lord Morris of Aberavon (Lab)]

If the Minister will allow me, will she deal with the inconsistency between the Lord Chancellor’s remarks this morning that he seeks to embed the right to trial by jury in statute and the fact that, at the same time, this is being denied to service men and women?

[Baroness Goldie (Con)]

I think the noble and learned Lord overlooks the tradition of the service justice system and why we have such a system. That has been one of its characteristics over decades: that is the character of the system. It exists to serve a particular purpose, which most people in this Chamber acknowledge, and that is why it has different characteristics from the civilian justice system.

[Lord Thomas of Gresford (LD)]

My Lords, I thank everybody who has contributed to this debate. Many fine words have been said and two issues have really come forward. The first is the denial of the right to trial by jury to members of the Armed Forces—they sign away that right when they join up. This issue will not go away but will rumble on and on.

The second issue relates to victims and the problems so clearly delineated to Sarah Atherton’s committee. She had representations from more than 4,000 women serving in the Armed Forces, all going the same way. Indeed, one person from an NGO which helps them said she was looking after 600 servicewomen, none of whom wanted trial by court martial; all wanted their right to have a trial in the ordinary courts so that the alleged transgressors could be brought to justice in the ordinary way.

This is absolutely fundamental to the constitution of this country. Regarding what the noble and learned Lord, Lord Morris, said a moment ago, in his press release today Mr Raab talked about the Magna Carta, the Bill of Rights, the Slave Trade Act and so on, calling them to his aid in supporting the right to trial by jury. It is a simple point.

I am very conscious that there are good things in this Bill that I have worked for for ages, such as majority verdicts in courts martial. I do not want to see this Bill fail, nor do I want the military to be let loose at this particular time by this Bill falling for lack of time. Therefore, I do not propose to press my amendment, but I hope we will come back to this issue. I hope that that will not be in five years’ time with our next Armed Forces Bill but that, once statistics emerge and show us the true situation, the Government will have the guts to admit that they were wrong.

This is not a historic thing going back decades. Jurisdiction was given to courts martial to try murder, manslaughter and rape in 2006, so this is barely 15 years old. Consequently, it is not a great military tradition— if it is being presented in that way. Up until that time, the service justice system insisted that offences committed by servicemen in the United Kingdom, on the soil of this country, should be tried in the ordinary courts. I hope we get back to that very quickly. I will not press the matter and beg leave to withdraw Motion A1.

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Moved by

[Baroness Goldie]

That this House do not insist on its Amendment 2B, to which the Commons have disagreed for their Reason 2C.

2C: Because the proposed legal duty is unnecessary having regard to the Government’s existing obligations.

Armed Forces Bill

Baroness Goldie Excerpts

Consideration of Commons amendments
Wednesday 8th December 2021 Lords Chamber

Moved by

[Baroness Goldie]

That this House do not insist on its Amendment 1, to which the Commons have disagreed for their Reason 1A.

1A: Because a presumption in favour of the offences in question being heard in the civilian courts is not necessary or justified.

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, with the leave of the House, in moving Motion A I will address Motion A1, and then Motions B and B1. Obviously there will be a certain element of déjà vu in my remarks but I shall do my best to explain once again why the Government hold to the view they do on these issues.

Over the last 20 years, the service justice system has gone through many changes and been transformed for the better as a result of them. There have been numerous reviews and inquiries, some as a consequence of operations, but all of which have enabled the service justice system to develop and improve. It is no longer recognisable as the system existing 10 to 15 years ago with which many of your Lordships were familiar.

The service police, prosecutors and judiciary are fully independent and trained. They are skilled and have the experience to deal with all offending to the same standard as their counterparts in the civilian criminal justice system. In particular, prosecutors are trained for rape and serious sexual offences, and judges/judge advocates are “ticketed” to deal with particular offences. Our code of practice for victims reflects the same principles as that for civilians and we use many of the same arrangements as in the civilian justice system, such as special measures for vulnerable witnesses. Any visitor to a court martial centre will find it remarkably similar to any Crown Court in England and Wales. In fact, in some areas the court martial is ahead of the civilian system, such as in the use of video links. It is for these reasons that the service justice system is legitimately positioned as an alternative jurisdiction to the civilian criminal justice system in respect of any criminal offence in the UK.

The recently published review by the retired High Court judge Sir Richard Henriques QC and the earlier Service Justice System Review by His Honour Shaun Lyons both strongly supported the continued existence of the service justice system. Sir Richard fully agreed with the Government’s decision to retain unqualified concurrent jurisdiction for murder, manslaughter and rape. He recommended a number of proposals to further strengthen the service justice system so that it has the best expertise and capacity to deal with all crimes. We have prioritised his recommendation of creating a defence serious crime unit, headed by a new provost marshal for serious crime in the Bill. This is a major development for the service justice system and it demonstrates the Government’s commitment to achieving the highest investigative capabilities within it. The new unit will play a key role in our strategy to drive up conviction rates.

I know we all have a common aim, which is to ensure that every case is heard in the most appropriate jurisdiction. We also agree that in the event of disagreement about jurisdiction, a civilian prosecutor should have the final say. However, we maintain that rather than involving the Attorney-General as set out in this amendment and creating an in-built bias towards the civilian jurisdiction, a better approach is to strengthen the prosecutors’ protocols and clarify the role of the prosecutors—civilian and service—in decision-making on concurrent jurisdiction.

The service justice system cannot be half a justice system or a partial justice system. It has to handle all crimes committed by service personnel outside the UK. It makes sense for it to continue to be able to handle all crimes in the UK. In the UK, this will be subject to the operation of the prosecution protocols in respect of which the view of the civilian prosecutor, as I said, will prevail.

Just for the avoidance of doubt, I take this opportunity to reassure the House that the proposal in this Bill is not about increasing the number of serious cases to be dealt with by the service justice system; it will continue to be the case that a victim can choose whether to report a criminal offence to the service or the civilian police. Our proposal simply maintains the principle that both jurisdictions are capable of dealing with all offending, and asserts that qualified and experienced prosecutors are best placed to make decisions where there is concurrent jurisdiction. Removing crimes from the competence of the service justice system or introducing a presumption in favour of the civilian system for serious crimes, as in this amendment, inevitably calls into question the integrity of the service justice system, raising a perception by victims, witnesses, service personnel and the public that the service justice system is deficient. That is unacceptable to the Government. That weakening and fracture of the service justice system is impossible for them to defend.

Let me now address conviction rates in the service justice system for sexual offences, in particular for the offence of rape, because this is clearly important. In his report, Sir Richard Henriques makes the point at page 201 that the comparison of conviction rates between the service and civilian justice systems overlooks the fact that the service police refer, and the Service Prosecuting Authority prosecutes, cases that would have been discontinued in the civilian system.

The number of rape cases prosecuted in the civilian system stands at between 1.6% and 3% of those reported to Home Office police forces. The Crown Prosecution Service has announced an action plan to address this disparity. Noble Lords will recall that the Government are also working on a new strategy for the service justice system when dealing with cases of rape and other serious sexual assaults. In the service justice system, 55% of rape investigations carried out by the service police in the period from 2017 to 2019 led to a referral to the Service Prosecuting Authority, and 27% of rape investigations led to a suspect being charged. In 2020, 50% of rape investigations by the service police led to charges and prosecution. Viewed as a proportion of allegations reported, rather than of cases prosecuted, the conviction rate in the service justice system is around 8% compared to around 2% in the civilian system. Let me be clear that this rate is still too low but should not be used as a reason for departing from the current principle of concurrent jurisdiction. Your Lordships may be interested to know that more recent data about cases of rape prosecuted at the court martial in the last six months show a conviction rate of just under 50%. Clearly, the service justice system is capable of investigating and prosecuting these cases.

I now wish to turn to specific details of the amendment, parts of the text of which cause concern. It seeks to introduce a consultation role for the Attorney-General in England and Wales only. The service justice system applies across the whole UK. That is why there is provision in the Bill for three separate protocols to ensure that the same approach is taken across the three legal jurisdictions of England and Wales, Scotland and Northern Ireland. As it stands, the application of the amendment to only England and Wales rather than the whole UK means that cases involving service personnel in those parts of the country would be handled differently from cases handled in Scotland or Northern Ireland. The amendment is unsuitable to be extended to Scotland or Northern Ireland. Consultation with the Attorney-General for England and Wales on prosecutorial decisions is entirely inappropriate for the devolved Administrations. For example, the independence of the Lord Advocate as head of the system of criminal prosecution and investigation of deaths in Scotland means that decisions are taken independently of any other person, and this includes not being subject to guidance or direction of another officeholder. It is my understanding that the Lord Advocate would be concerned about any extension of the proposed approach to Scotland.

Finally, I say with the greatest respect that it is not entirely clear to the Government what is meant by the condition of “naval or military complexity”, and how that will be defined, by whom and how it should be interpreted. This approach will lead to confusion and a lack of clarity about how and when the Attorney-General for England and Wales should be consulted.

On the other hand, Clause 7 of the Bill ensures that decisions on jurisdiction are left to the independent service justice prosecutors across the UK, and their respective civilian prosecutors, using guidance that they have agreed between them that will, no doubt, address the military dimension to be considered. Once in place, this new statutory guidance will be used to revise existing protocols between the service and the civilian police to bring much-needed clarity at all levels on how decisions on jurisdiction are made.

The Bill also makes it clear that where there is a disagreement on jurisdiction, the civilian prosecutor—be it the Director of Public Prosecutions for England and Wales, the Lord Advocate or the Director of Public Prosecutions for Northern Ireland—always has the final say. So the service justice system prosecutor cannot ignore the civilian prosecutor and railroad cases through the service justice system. In this way, the Government’s approach not only provides a solution which works UK-wide but provides ample safeguards to ensure that civilian prosecutors are involved and cases are dealt with in the most appropriate jurisdiction.

In these circumstances, I beg to move Motion A in my name, and I urge the noble Lord, Lord Thomas of Gresford, not to press his Motion A1.

I will now move on to Motions B and B1, in relation to the Armed Forces covenant. The covenant is described as:

“An Enduring Covenant Between the People of the United Kingdom, Her Majesty’s Government and All those who serve or have served in the Armed Forces of the Crown and their Families.”


The covenant was rebuilt a decade ago during a time, like today, of great pressure on the Armed Forces community, and has since been delivered in a highly successful manner, because it captures the appreciation and support for the sacrifices of that community of people from every walk of life across the United Kingdom.

This embodies the spirit of the covenant, which of itself is not a legal obligation, and nor should it be. But that is not to say that legislation has not been important in helping its delivery. That began with the obligation on the Secretary of State for Defence to report to Parliament annually on how service life impacts on the lives of servicepeople and former servicepeople. By working with our service providers and key stakeholder groups, from this one measure the covenant has evolved into one of the key drivers of welfare support to our Armed Forces community today. We are now taking the next step to promote and further strengthen the legal basis of the covenant, as we committed, which is why we are taking forward the provisions in this Bill.

Ensuring that key policymakers have the right information about the Armed Forces community and are therefore better able to make the right decisions for their local populations has been fundamental to our current success. Building on this foundation, the new duty will therefore oblige specified public bodies exercising a relevant healthcare, education or housing function to pay due regard to the three principles of the covenant. We see this as a sure and effective way of raising awareness among providers of public services of how service life can disadvantage the Armed Forces community, thereby encouraging a more consistent approach around the country.

However, these provisions are breaking new ground, and it is important that we see how they work in practice so that we both establish an evidence base and allow time for review and assessment to inform future enlargement of this obligation to any new bodies or functions. The provisions in the Bill will allow that enlargement more easily by granting the Secretary of State the power to add to the scope of the duty through regulations, without the need to wait for another Armed Forces Bill.

I have already outlined in this place the work we are undertaking with covenant reference group stakeholders to establish a process to help the Secretary of State to identify and assess functions that it would be beneficial to add to the scope of the duty, including those that are the responsibility of central government. This process will feed into our existing commitment to review the overall performance of the covenant duty as part of our post-legislative scrutiny.

I remind your Lordships of the current legal obligation on the Government to annually prepare and lay an Armed Forces covenant report. In the preparation of the annual report, the Secretary of State must have regard to the three principles of the covenant. He must obtain the views of relevant government departments and devolved Administrations in relation to the effects on servicepeople covered by the report. He must state in the report his assessment of whether servicepeople are facing disadvantage and, importantly, where he is of the opinion that there is disadvantage, what his response is to that, including consideration of whether the making of special provision would be justified. This means in essence that covenant delivery at a national level remains under continual review and, far from avoiding responsibility, demonstrates how this Government are committed to ensuring that the needs of the Armed Forces community are identified so that action can be taken.

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[Lord Thomas of Gresford (LD)]

My Lords, I will start with a quotation. In the Ministry of Defence

“there is one individual who is refusing to back down from the alleyway he has found himself in.”—[Official Report, Commons, 6/12/21; col. 105.]

Those are the words of the former Defence Minister Johnny Mercer, speaking in the debate in the other place on Monday night, on the amendment that we sent. He had earlier said:

“Unfortunately, I was in the room when this decision was made. The evidence did not support the Secretary of State at the time and the evidence does not support the Secretary of State today. I cannot vote against the Lords amendment; it is not the right thing to do. Let me be clear: when the Secretary of State made that decision”—


the issue that we are discussing today—

“it was against the advice of the officials in the Department and against the advice of his Ministers.”—[Official Report, Commons, 6/12/21; col. 104.]

Unusually, the veil is lifted. Mr Mercer clearly identifies Mr Ben Wallace, the Secretary of State for Defence, as the man in the alleyway who, against the advice of his officials and his Ministers, persists in resisting this amendment. The Minister knows that I have always assumed that she would not, in her personal capacity, back the Government’s position—but now we have direct evidence from Mr Mercer, her former colleague.

I could leave it at that. I could await the storm of protest from victims whose cases are dismissed at court martial, who will come forward brandishing the Judge Lyons review and the recommendations, after considerable investigation, contained in Sarah Atherton’s report, published last July, to which I have referred at every stage—Sarah Atherton being the only Conservative Member of Parliament ever for Wrexham.

I doubt that the controversy when those protests are made will improve Mr Wallace’s or the Government’s standing with the public on the highly sensitive issue of sexual offences, but I have a deep concern that the reputation of the service justice system in the UK should not be sullied.

On Monday afternoon, I took part in an international forum organised by my friend Professor Eugene Fidell of Yale University, founder and former president of the National Institute of Military Justice in the United States. The forum meets regularly. On this occasion, we considered the way that sexual offences are dealt with in the Canadian military. This is a live issue in many jurisdictions. I had hoped that the United Kingdom would show the way, but I will remind the House of some of the UK statistics that were before the other place.

The Atherton committee interviewed many in search of evidence. Some 64% of the more than 4,000 service- women who submitted evidence to the committee stated that they had experienced sexual harassment, rape, bullying or discrimination while serving in the Armed Forces. Over the past five years, the average conviction rate for rape in civilian courts, from Ministry of Justice data, is 34%. Over the same five years, from using the data of the MoD, it is just 16%. The Minister told us that it was 15% for courts martial over the last six months. If you use Crown Prosecution Service data, the figures are even worse.

[Baroness Goldie (Con)]

I thank the noble Lord for taking this point of correction. The statistic I gave him for cases of rape prosecuted in courts martial in the last six months shows a conviction rate of just under 50%.

[Lord Thomas of Gresford (LD)]

Obviously, I misheard the noble Baroness. I will continue. As I said on Report, I am not aware of any murders committed in the UK by service personnel that have been tried by court martial. Of course, that could have happened only since 2006, when the novel change to concurrent jurisdiction was introduced. I have noted two cases of manslaughter arising from deaths at the Castlemartin range in west Wales, in live firing exercises, which involved the organisation of training activities, but I am not aware of any trials of sexual offences at court martial in the UK where the victim was a civilian. If there were any, I shudder to think of the effect on a civilian complainant of giving her evidence in intimate detail, against a serviceman, to a panel of uniformed officers, at a court martial.

Until now, the verdict of a court martial in such a case would have been by a simple majority, but I welcome the changes in this Bill that lead to a different situation. Imagine the difficulty of a junior service woman or man making a complaint of rape to her or his commanding officer, particularly if the alleged offender is senior to them in the chain of command, as is often the case. In addition to all the stresses and strains that already dissuade many women in civilian life from complaining, she, a servicewoman, has to face the effect on her career, an appearance before a board of senior officers, very low chances of conviction and the possibility that, in the event of an acquittal, the terms of her service will keep her in contact with her attacker. At least in a civilian court, the jury, to whom she would give her sensitive and difficult evidence, is 12 anonymous people drawn from the public. They will have no effect on her career and she is most unlikely ever to see them again—contrast that with giving evidence of sexual offences before a court martial.

Sir Robert Neill, with all his experience and wisdom, pointed out in the other place on Monday that the normal safeguards that apply in these cases in civilian courts are not yet available in the courts martial, in both the investigatory and procedural stages. Again, I draw the Minister’s attention to the effect upon the recruitment and retention of women in the Armed Forces. Would you expose your daughter to the probability that she will be subject to sexual harassment and worse, without the protection of a satisfactory service justice system?

I listened to the debate in the other place, and my amendment in lieu has changes. Objection was made to the role ascribed to the Attorney-General. The Minister has made a similar objection in this House, and I have to admit that I had assumed that the Ministry of Defence and the Members in another place appreciated the constitutional position of the Attorney-General. It is one of his functions to supervise the Director of Public Prosecutions and the Director of Service Prosecutions and to be answerable in Parliament for them and their decisions. Hence it was Judge Lyons’ recommendation that the AG’s consent should be sought for the trial by a court martial of murder, manslaughter, rape and serious sexual offences committed in the UK. I agreed with his position: it represents the correct status of the Attorney-General in this country.

However, if the consent of the Attorney-General is the problem, this amendment in lieu leaves decisions about trial venue in the hands of the Director of Public Prosecutions—but only after consultation with the Attorney-General. The DPP would naturally consult the DSP, but, as the Minister, Mr Leo Docherty, made clear on Monday evening, it is the DPP’s decision in the end.

I say to the Conservative Benches that, if they vote against my amendment, they would be voting merely for the stubborn man in the alleyway, in Johnny Mercer’s words. They would be voting against the views of the officials in the Ministry of Defence and the departmental Ministers at the time that this was first considered, against the leading recommendation—number 1—of Judge Lyons and, above all, against the passionate findings of the Conservative Member of Parliament and her cross-party committee. Sarah Atherton—the only women in history to have risen from the ranks of the Armed Forces to become a Member of the House of Commons—knows what she is talking about. I ask those opposite not to vote against this amendment. I beg to move.

--- Later in debate ---

[Baroness Goldie (Con)]

My Lords, first, I thank your Lordships for, as ever, interesting and thoughtful contributions on both issues being debated this afternoon, particularly Motions A1 and B1. I will first address the comments made in relation to Motion A1. By way of preface, it is worth noting that this matter was debated and decided in the other place by an authoritative and substantial majority. Notwithstanding that, I will endeavour in my remarks to engage your Lordships and repeat why the Government hold to the position they do. I am grateful for the further comments made.

Perhaps I should clarify to the noble Lord, Lord Thomas, who seemed to doubt my commitment to the matters of the service justice system, that I and the Government are convinced of the wisdom of retaining unqualified concurrent jurisdiction for murder, manslaughter and rape—I want to make that crystal clear. I remind your Lordships that, contrary to what some contributions indicated, that view is supported by a distinguished former High Court judge, Sir Richard Henriques.

I was also interested to note that remarks from a number of your Lordships with very senior and impressive legal backgrounds seemed to be addressed exclusively to England and Wales. With all respect, the service justice system that we all admire and revere has to extend across the whole of the UK and must reflect the different systems within it. Military justice must be universal across the UK and the proposal in the Bill achieves that end in a way in which the noble Lord’s amendment does not.

[Lord Thomas of Gresford (LD)]

Perhaps I might challenge the Minister on that. If the civil jurisdiction is to be used for an offence committed in Scotland or Northern Ireland, court martials then become immaterial—so there is no problem, as the Minister seems to think. This point has not been raised at any stage of the Bill until today. There is no problem if the ordinary courts of Scotland and Northern Ireland are to deal with offences which occur within that jurisdiction. The question of whether a person is in the military or not is then irrelevant; the offences will be dealt with as usual.

[Baroness Goldie (Con)]

Yes, but with all respect, I say to the noble Lord that that is not the essence of the issue. The essence is instead how you create a service justice system which can operate across the United Kingdom and ensure that, when discussions take place with the appropriate civilian prosecutors, appropriate decisions are reached on the correct jurisdiction for the case. That might be, within the service justice system, convening in Scotland, but under the noble Lord’s amendment there is clearly a desire to bias the whole service justice system in respect of England and Wales to the civilian system, and I am saying that that introduces a disparity or fracture of the United Kingdom service justice system. That is what the Government find unacceptable.

The noble Lord, Lord Burnett, raised an important point—

[Lord Morris of Aberavon (Lab)]

If there is any technical difficulty regarding the extension of the jurisdiction to include Northern Ireland and Scotland, surely it would not be beyond the wit of the Government, if they accepted the principle of civilianisation, to deal with that matter in an appropriate way.

[Baroness Goldie (Con)]

I say to the noble and learned Lord that, as I understand it, the difficulty is that constitutionally we cannot extend this amendment to cover Scotland and Northern Ireland. That gets right to the heart of whether we have a service justice system for the United Kingdom, operating across it, or we do not. That is the difficulty with this amendment.

Turning to the point made by the noble Lord, Lord Burnett, on the Richard Henriques recommendations, I know he was particularly interested in a defence representation unit. In recognition of the remarks I made in Grand Committee when I undertook to keep the House informed of progress on these Henriques matters, I explained then and when the amendment was tabled on Report that we have to analyse and assess these recommendations. We are not yet sure how they could be implemented and what measures would be necessary to implement them, but I am very happy to repeat my assurance to the noble Lord that I will keep the Chamber informed of progress.

--- Later in debate ---

[Lord Craig of Radley (CB)]

Before the Minister sits down, the big issue that came from this House is where local authorities cannot deal with the veteran issue. We produced some examples of that; it was not discussed at all in the other place. Could she explain why? This is not acceptable at this stage, bearing in mind that, in effect, it is already being carried out. I do not see why there should be any difficulty in incorporating the Secretary of State “having due regard” as the form of words, to show that it is a matter for central government. The veteran issue cannot be dealt with at local level.

[Baroness Goldie (Con)]

Central government, as I have indicated previously, is bound by a wide spectrum of obligations. Some of these obligations exist because of parliamentary and government obligations, some exist because the MoD is an employer of the Armed Forces, and some exist because, under the covenant—which is a concept, as I have said—we want to do the best we can.

What I did explain was that to make this work—I hope it is clear from the text of the Bill in relation to the three functions we have identified—you need to have an identified body and detailed functions. That is why the Government feel that it is premature to take this step at this time. I appreciate that the noble and gallant Lord disagrees with that interpretation. He feels that the Government should absolutely accept that they are bound under the covenant. I would say that they are bound under the covenant as a concept in terms of a moral responsibility, and they are certainly accountable not just to Parliament, as they rightly should be, but to their own Armed Forces and to their veterans, and to public opinion.

I have tried to explain why we feel that to take this step at this stage is both precipitate and premature. I appreciate that there is not agreement on that view, and that is what democracy exists to serve. But I have endeavoured to explain to your Lordships the position of the Government and why they hold to their views in these circumstances. Again, I respectfully ask the noble Lords to withdraw their Motions A1 and B1.

[Lord Morris of Aberavon (Lab)]

Before the Minister sits down—I hope she will forgive me—I asked specifically about the size of the sample for rape cases, an issue which my noble friend Lord Coaker also raised. The figures are quite different and much more encouraging than those given by Mr Johnny Mercer in the other place. Can the Minister tell me—I did give notice of this in the course of my short remarks—what is the size of the sample?

--- Later in debate ---

[Baroness Goldie (Con)]

I have to say to the noble and learned Lord that I am afraid I do not have information available. I gave him the statistics provided to me, but I will undertake to ascertain that information and write to him.

[Lord Thomas of Gresford (LD)]

My Lords, I will pursue that for a moment. The number of cases heard in courts martial is probably fewer than 10 for sexual offences, or at least fewer than 20. I cannot imagine that in six months, we deal with more than four or five cases, but no doubt we will be told in due course. Over a five-year period, the figure is 16% for convictions, as opposed to the civil conviction rate of 34%—shocking as that conviction rate is in any event.

On the point about Scotland and Northern Ireland—never raised before Monday night in the course of this Bill, either here or in the other place—the principle that this amendment sets down is quite simple:

“Guidance … must provide that where offences of murder, manslaughter, domestic violence, child abuse, rape or sexual assault with penetration are alleged to have been committed in the United Kingdom, any charges brought against a person subject to service law shall normally be tried in a civilian court”—


it does not say “in the Crown Court” in this country—

“unless by reason of the circumstances … the Director of Public Prosecutions, after consultation with the Attorney General, directs trial by court martial.”

If it is necessary to cover that by putting “after consultation with the Lord Advocate in Scotland” or whoever is the chief authority in Northern Ireland, that can be done in 30 seconds—if you let me loose for that period of time.

No answer has been given, and we are faced with what Johnny Mercer said:

“there is one individual who is refusing to back down from the alleyway”.—[Official Report, Commons, 6/12/21; col. 105.]

This is not proper policy for the Conservative Party. It will face, as a party, the complaints of people who have been subjected to sexual violence but whose cases have not been upheld. It will arise, and it will be to the advantage of other parties. So, I plead that the amendment be supported in this case. I beg to move.

--- Later in debate ---

Moved by

[Baroness Goldie]

That this House do not insist on its Amendment 2, to which the Commons have disagreed for their Reason 2A.

2A: Because the Commons do not consider the addition of the Secretary of State as a specified person to be necessary to address any disparity in the delivery of core services across the United Kingdom, or otherwise to achieve the aims of the Bill.

[Baroness Goldie (Con)]

I beg to move.

Motion B1 (as an amendment to Motion B)

Moved by

Ukraine: Military Equipment

Baroness Goldie Excerpts

Monday 29th November 2021 Lords Chamber

[Lord Balfe]

To ask Her Majesty’s Government what plans they have to sell missiles to the government of Ukraine; what discussions they had with the governments of (1) Germany, (2) France, and (3) the United States of America, prior to opening negotiations on the supply of military equipment to Ukraine; and what assessment they have made of the impact of any such sales on peace in the region.

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, we have signed a number of agreements with the Government of Ukraine to work together and with industry to boost Ukraine’s defence capabilities. This is part of the UK’s ongoing commitment to the Ukrainian defence capabilities and the support announced during President Zelensky’s visit to the UK in October. The UK maintains close dialogue with key allies, including Germany, France and the US, regarding Ukrainian military development. These agreements reflect and underline the UK’s commitment to Ukraine’s territorial integrity and sovereignty.

[Lord Balfe (Con)]

My Lords, in eastern Europe, we seem to be drifting towards a war that we will inevitably lose, since we are outnumbered by about four to one. Would the Minister like to take back to the department the need for a comprehensive conference to deal with the frozen conflicts of eastern Europe, most of which date back 20 years? We need to review the Minsk II agreement and possibly look at an Austrian state treaty solution to the problems of Ukraine. Can we have a new initiative please, and not just a drift to war?

[Baroness Goldie (Con)]

I thank my noble friend for the question, but I do not share his analysis. No one is disputing that there is a serious situation within Ukraine and on the Crimea peninsula. That is precisely why, over the last 20 years, and particularly in the past six years, the UK, along with allies and partners, has been supporting Ukraine with training, in capacity-building missions and maritime and other training initiatives. That is what the recent agreement was predicated on when we signed the treaty with Ukraine on official credit support for UK Export Finance. It is all about supporting that country and helping it to build its military capabilities.

[Lord Coaker (Lab)]

To build on what the noble Lord, Lord Balfe, has just said, it was General Sir Nick Carter, the Chief of the Defence Staff, who only recently spoke of a drift towards an accidental war with Russia. Can the Minister explain to us how, in our desire rightly to stand by our ally in Ukraine and our other allies, we are going to stop that drift to any sort of accidental incident or war with Russia?

[Baroness Goldie (Con)]

The accidental occurrence to which the noble Lord refers would obviously be very negative and unwelcome, and what all powers, particularly the UK and NATO allies, are anxious to avoid. The noble Lord will be aware that, within NATO, we are focused on dialogue and discussion and on doing what we can to provide support to Ukraine, not in some provocative sense but, simply, in a sensible and supportive manner, helping it to build a capability. A lot of very good work has gone on in that respect, not just from the UK but from our other allies and partners.

[Lord Lancaster of Kimbolton (Con)]

My Lords, Operation Orbital is the long-standing military training package that we have offered to Ukraine for some years. Historically, it has only ever delivered defensive training. Now that we are looking at delivering military hardware to Ukraine, has the time came also to offer lethal training?

[Baroness Goldie (Con)]

My noble friend is quite right in that Operation Orbital was conceived and has been delivered as a training mission, again with the objective of building Ukraine’s military capacity. As I said earlier to the noble Lord, Lord Coaker, this is part of a chain of events—and this is why we are moving on to assist Ukraine with acquiring other support for its military and naval capability. We wish to support an ally and a friend and partner, and make sure that we can use our expertise and skill to enable it to be stronger—that is what this composite package of measures is about.

[Baroness Smith of Newnham (LD)]

My Lords, capacity building is obviously important, but last week the Daily Telegraph reported the defence intelligence chief of Ukraine as saying that there were 92,000 soldiers massing towards Ukraine’s borders. Can the UK Government really help capacity building to the extent that that can be offset? If not, as the noble Lord, Lord Balfe, said, can some other action not be taken so we can begin to look at diplomacy rather than military capacity building?

[Baroness Goldie (Con)]

Operation Orbital, the training arm of what the UK has been doing with Ukraine since 2015, has actually trained around 22,000 Ukrainian troops to date. Operation Orbital delivers tactically focused training to the Armed Forces, such as medical logistics, counter-improvised explosive device training and maritime and air domain training. We have other training initiatives as well. In addition, we support Ukraine in the defence reform space, and we do that with our allies, so a great deal of support is being given to Ukraine. We regret the attitude and posture adopted by Russia and urge it to de-escalate pressure and help to stabilise the region.

[Lord Robathan (Con)]

My Lords, the Question refers to “peace in the region” but, unless I have got it wrong, it is Russia that has invaded South Ossetia, annexed Crimea, Moldova and now Donbass. Surely nobody can doubt the malign intent, and determination for aggrandisement of Putin’s regime. Does my noble friend agree that to take a disinterested or neutral stance on the conflicts in Ukraine would be to the detriment of world peace?

[Baroness Goldie (Con)]

My noble friend is correct in his analysis that the perpetrators of the pressure are indeed the Russian Government. We have significant concerns about their aggressive pattern of military build-ups on Ukraine’s border, certainly in the illegally annexed Crimea. That behaviour is unacceptable. We and our allies are monitoring the situation and continually call on Russia to adhere to its international obligations and commitments.

[Lord Truscott (Non-Afl)]

My Lords, anyone who has studied Russia knows that if the Ukrainians try to retake the Russian-populated areas of Donbass and Crimea by force, Russia will go to war. Meanwhile, as the Minister said, we are providing lethal weapons to Ukraine, training its military and providing loans so that it can buy military equipment. May I press the Minister to say what effort Her Majesty’s Government are making to seek a peaceful solution to this conflict?

[Baroness Goldie (Con)]

The noble Lord will be aware that we engage in discussions with and make representations to Russia. Indeed, the Prime Minister spoke to President Putin on 25 October and was very clear about the views that we hold. We understand and sympathise with Ukraine, which obviously feels vulnerable, and it is our duty along with our allies and partners, particularly in NATO, to provide support and reassurance. That is what we are endeavouring to do.

[Lord West of Spithead (Lab)]

My Lords, the greatest risk to the survival of mankind is not global warming, it is an accidental thermonuclear war. One has only to look at the dreadful behaviour of Putin, not just around Ukraine but in a number of other ways, and his very loose talk about his de-escalatory policy of using a nuclear weapon should he be losing a conventional war, to see what the real risks are. I believe it is very important that we get the people who were around the table in Minsk when we made the Ukrainians get rid of their nuclear weapons who have failed since that time in terms of their handling of Russia. Does the Minister agree? We dealt with Crimea badly; everything that has happened with Ukraine has been dealt with badly. We need urgently to get back round the table or there will be a mistake—and, goodness me, that will be it.

[Baroness Goldie (Con)]

That would be a very alarming prognosis and a very unwelcome outcome, which I obviously hope can be avoided. The noble Lord is aware of the programme of engagement that has continued over a number of years with Ukraine. It is not just on the part of the UK, it is with our other allies, not least, as I said, within NATO. Ukraine enjoys a strong bilateral relationship with the United Kingdom; it is a relationship that we value and nurture and, as recent events have indicated, is it one that we support by deeds in addition to words.

[Baroness Bennett of Manor Castle (GP)]

My Lords, the noble Lord, Lord Balfe, asks about the impact of arms sales on peace in eastern Europe. In the light of the US and allied withdrawal from Afghanistan, the broader pursuit of “America first” policies from Washington, and the fact that the UK is the world’s second-largest arms exporter, with the majority going to the Middle East, are the Government reviewing all arms sales and indeed the place of the UK arms industry? Are they truly counting the cost on UK and global security of our arms industry?

[Baroness Goldie (Con)]

The UK Government take very seriously our responsibility for the security of this country and our support for our global allies. That is why we have a strong defence capability. The noble Baroness will be aware that exports of arms and weapons are monitored extremely closely under a very robust regime.

[The Lord Speaker (Lord McFall of Alcluith)]

My Lords, that concludes Oral Questions for today.

Armed Forces Bill

Baroness Goldie Excerpts

3rd reading
Monday 29th November 2021 Lords Chamber

Moved by

[Baroness Goldie]

That the Bill do now pass.

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, it has been a great pleasure to lead the Bill through this House. It delivers on the manifesto commitment to strengthen the legislation of the Armed Forces covenant that will deliver for the Armed Forces community across the United Kingdom. It further strengthens the service justice system for our Armed Forces, wherever they serve. Most importantly, 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.

I therefore convey my deep gratitude to all noble Lords for supporting the Bill and for their invaluable contributions to our extremely incisive and well-informed debates. Undoubtedly, this is a marked tribute to your Lordships’ shrewdness, the depth and breadth of knowledge and the passion that has persistently shone through when debating issues affecting our Armed Forces. I particularly express my appreciation for the constructive engagement made possible by the noble Lords, Lord Coaker, Lord Tunnicliffe, Lord Thomas of Gresford and Lord Dannatt, the noble Baroness, Lady Smith of Newnham, and the noble and gallant Lords, Lord Boyce, Lord Craig of Radley and Lord Houghton of Richmond.

It is an incontestable fact that all within this House have bought into the spirit of what this Bill seeks to achieve. We all want to do the very best for our Armed Forces community, from the sailors, soldiers and aircrew at the forefront of operations around the world, to the veterans whose days of active service have long since passed, and to the families who unstintingly provide support and are the bedrock to their success. I thank your Lordships for their continuing interest in the Armed Forces.

It would be unacceptably remiss were I not to acknowledge and thank the Bill team under the formidable leadership of Jayne Scheier, supported by her able and committed colleagues. There is a lot of technical detail in the Bill, with complex legal consequences, and the team’s guidance and expertise has been exemplary—as has their patience in supporting a Minister who I am sure must have been very irksome at times.

Before I finish, I remind the House again of the undertakings I made both in Grand Committee and on Report that I will keep the House informed of progress on the recommendations of Sir Richard Henriques’s review. We expect to submit very shortly our response to the House of Commons Defence Committee’s report on women in the Armed Forces; that response is detailed and substantial. This Bill now passes from my stewardship to my colleagues in the other place—so, over to them.

Finally, I pay tribute to the courageous, professional and dedicated men and women in our Armed Forces. We are proud to have the best Armed Forces in the world and, ultimately, this Bill is for them. I beg to move that the Bill do now pass.

[Lord Coaker (Lab)]

My Lords, it has been a real pleasure for me to see my first Bill through your Lordships’ House on behalf of Her Majesty’s Opposition, with my noble friend Lord Tunnicliffe, who I thank for his support. It has been helped enormously by the generosity of spirit and co-operative attitude of the Minister. I sincerely thank her and her officials for the briefings and advice that we have received throughout the Bill’s passage. I also thank her sincerely for the way in which she has responded to our questions and amendments, and her commitment to reflect on the various points as policies are taken forward by the Ministry of Defence.

In that regard, I also thank the noble Baroness, Lady Smith of Newnham, and her colleagues, notably the noble Lord, Lord Thomas of Gresford, for their collegiate approach, which has helped us all scrutinise the Bill more effectively. I also thank the noble and learned Lord, Lord Thomas of Cwmgiedd. Thanks to him, I now understand terms such as “concurrent jurisdiction”. Throughout the Bill, advice from my noble friends Lord West and Lord Reid was gratefully received, as was the tireless and impressive work of Dan Harris, our adviser. It was also a privilege to have my noble and learned friend Lord Morris and my noble friends Lord Browne and Lord Robertson alongside me. Their expertise and experience is a huge asset to our country, as is the active involvement of many noble and gallant Lords, some present here this afternoon. We hope that the Government will further consider the amendments that we have passed back to the other place, which are intended not to undermine the Bill but merely to improve it, and that they will reflect and think again.

We are all united by admiration for our Armed Forces and the service they give to our country. We know that we depend on them to defend our democracy and values at home and across the world, with our allies. We know that those values are likely to be tested again and again over the coming years and decades. The Bill, soon to be an Act, is part of the contract we make as our duty of care for them and their families, and we as Her Majesty’s Official Opposition have been proud to support it.

[Lord Craig of Radley (CB)]

My Lords, as one of the sponsors of a number of amendments, I have added to the work of the Minister and her Bill team. I add my thanks to her for the way she has dealt with them. The Bill team, having been faced with a very large number of late government amendments, have done a magnificent job; Jayne Scheier and all of them ought to be thanked very much for that effort. I hope that the Minister will not forget that I mentioned the Hong Kong veterans and have yet to have a decent reply about that. The issue has been outstanding for 35 years, so it is about time it was dealt with.

I hope, too, that the amendments we have sent back to the other place will be accepted. Time is short, Covid threatens and it would be sensible if the Government avoided ping-ponging it in this direction again. I thank the Minister very much for all that she has done on this Bill.

[Baroness Goldie (Con)]

I thank the noble Baroness, Lady Smith, and noble Lords across the Chamber for their contributions. They reflect what I said in my remarks: we are all united in our admiration for, and desire to support, our Armed Forces. I thank noble Lords for these helpful and constructive comments.

Bill passed and returned to the Commons with amendments.

Army Restructuring: Future Soldier

Baroness Goldie Excerpts

Thursday 25th November 2021 Lords Chamber

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, with the leave of the House, I should like to repeat a Statement made by my right honourable friend the Secretary of State for Defence earlier in the other place. The Statement is as follows:

“With permission, I would like to update the House on the details and implementation of the Army’s future capabilities, structures and basing. In March I stood here to announce the outcome of the defence Command Paper, part of our integrated review. I said that we must adapt to new threats, resist sentimentality and match our ambitions to our resources if we are to field Armed Forces that remain relevant and credible for the challenges of the future. I also said that we owed it to our service personnel to ensure we now turn that policy into reality, and that the work to do so had only just begun. The Army was tasked with undertaking the most significant modernisation in a generation and, after an intensive period of planning, for which I am especially grateful to the Chief of the General Staff, General Sir Mark Carleton-Smith, Brigadier Clark and the rest of the team, I can now announce the details of its plans, entitled Future Soldier.

Let me begin by paying tribute to those soldiers, the brave men and women of the British Army. To me, they are the finest in the world. Yesterday, we witnessed soldiers alongside colleagues from other services parade outside Parliament. It was an opportunity not just to pay tribute to their extraordinary endeavours during Operation Pitting in helping to evacuate some 15,000 people in a matter of weeks or to thank them for their service and sacrifice throughout the decades-long Afghan campaign. It was also a reminder that the Army that departed Afghanistan was a very different one from that of 2001.

The Army of the future must adapt even more radically if it is to adapt to the threats of the future. Let us be clear: those threats are proliferating ones, from increasing humanitarian crises to evermore capable and determined violent extremists and proxy forces, and the ever-present spectre of great power competition. To keep pace with the changing character of warfare, our Army must be forward-looking, adaptable and embracing of new ways of working, as much as new weapons and technologies. Not only must it have the best force structure to counter an ever-growing range of threats to the UK, our people and interests, but it must achieve our ambitions on schedule and in budget.

Thanks to the Prime Minister’s record settlement for defence, announced at last year’s spending review, we have been given the time and resources to undertake the generational modernisation that defence needs. Far from being deprived of investment, as some claim, we are injecting £41.3 billion into Army equipment and support this decade—£8.6 billion more than had been planned prior to the integrated review. We are using those funds to create a modern, innovative and digitised Army. Our future Army will be leaner but more productive, prioritising speed and readiness over mass mobilisation but still over 100,000 strong—integrating regulars and reserves, as well as all the civil servants and partners from the private sector.

As the Chief of the General Staff has said, it must be an Army that places a premium not just on mass, but on critical mass: relevant, networked, and deployable. So the Army will be reorganised to operate on a continuous basis, fielding all the relevant capabilities for this era of constant competition and persistently engaged around the globe, supporting our partners and deterring our adversaries. But, crucially, it will also be an Army designed for genuine warfighting credibility, as an expeditionary fighting force that will be deployable and lethal when called upon to fight and win.

Since the publication of the defence Command Paper, my officials have worked hard to finalise a reform programme to deliver our priorities at home and abroad. Our future soldiers will find tomorrow’s Army has six distinct elements.

First, it will be globally engaged, with more personnel deployed for more of the time, employing a new network of regional hubs based on existing training locations in places such as Oman and Kenya.

Secondly, it will be a key contributor to NATO warfighting, capable of fielding a division throughout the decade as we transition to the new capabilities for a fully modernised warfighting division by 2030.

Thirdly, it will be enhanced by state-of-the-art equipment, including upgraded tanks and digitally networked armoured vehicles, as well as long-range precision strike, cyber and electromagnetic capabilities.

Fourthly, it will exploit innovation and experimentation to get ahead of the evolving threats. Not only will the Army share the £6.6 billion of defence’s increased R&D investment, but next year both the new British Army battle lab and a dedicated unit, the Army trials and experimentation group, will be established to stay at the cutting edge.

Fifthly, it will have integration at its heart, bringing together regulars, reserves, and civil servants to form a more productive force with warfighting and resilience at its heart and cross-government working in its DNA.

Finally, it will be an Army that benefits the whole of our union, with an increased proportion of the Army based in each of the devolved nations and expenditure contributing to prosperity throughout the United Kingdom under our upcoming land industrial strategy.

I am pleased to report we have already made substantial progress. When it comes to global engagement, we have formed the new Army special operations brigade in which the new ranger regiments will sit, established the security force assistance brigade, and set up a NATO holding area in Sennelager in Germany. In terms of warfighting, we have reinforced NATO’s Allied Rapid Reaction Corps, established new brigade combat teams, and reinforced the Army’s global response force.

Over the next five years, implementation will continue apace. At the end of this year, our new ranger regiment will reach initial operating capability. By mid-2022, our new deep recce strike brigade combat team will be established. By the autumn of next year, two battalions of the Mercian Regiment will merge to form a new Boxer-mounted battalion in one of our armoured combat teams. The recapitalisation of major equipment is also already under way. I am determined to do everything within our means to accelerate the introduction of Challenger 3 tanks, with an ambition for their delivery to units starting from 2025 onwards.

Likewise, we are transitioning to Boxer armoured personnel carriers from the retiring Warrior, with units receiving vehicles from 2023. We are resolving development issues with the troubled, but none the less technically capable, Ajax armoured reconnaissance vehicle. We are upgrading the battle-proven Apache attack helicopters, while investing in everything from long-range precision strike ground-based air defence, to uncrewed aerial systems, electronic warfare and tactical cyber. These cutting-edge capabilities will be wielded by the newly restructured brigade combat teams: self-sufficient tactical formations with their own combat support and logistics. They will include 16 Air Assault Brigade Combat Team and a new aviation brigade combat team, which together will form our global response force providing defence’s rapid response to crises overseas.

I turn now to our plans to streamline the Army force structures. For too long, historic infantry structures have inhibited our Army’s transformation. We cannot afford to be slaves to sentiment when the threat has moved on. So today I can confirm a major reorganisation under four new administrative divisions of infantry: the Queen’s Division, the Union Division, the Light Division, and the Guards and Parachute Division. These divisions are designed to reflect historic ties, while also balancing their numbers of battalions and unit roles, offering greater flexibility and opportunity to soldiers of all ranks.

As announced in March, these plans do not involve the deletion of any cap badges, further major unit changes or any military redundancies. While we are significantly reducing the total number of Army personnel, we are not compromising our presence in and contribution to the devolved nations. While numbers will reduce slightly everywhere except Wales, we are increasing the proportion of the Army based in each nation and investing millions in their defence industry and estate.

Northern Ireland will keep the same number of battalions but host a greater proportion of the Army’s workforce and gain an additional reserve company of the Royal Irish. Scotland will be home to more battalions, going from six to seven units, and a greater proportion of the Army than today. We will be retaining Glencorse barracks, and we will grow in Kinloss and Leuchars thanks to £355 million investment in the Army estate, delivering more than £1 billion of economic benefits.

Wales will see the return of the Welsh cavalry, the Queen’s Dragoon Guards, to Caerwent barracks and a new reserve company of 3rd Battalion The Royal Welsh established in north Wales. The retention of the Brecon barracks and the growth in Wrexham are just part of a £320 million investment in the Army estate in Wales. I know colleagues will be enthusiastic to learn the basing implications for their own constituencies, and the full breakdown of the Army’s new structure will be able to be found on GOV.UK after this Statement, or by clicking the link through the ‘Dear colleague’ letter that will be distributed.

Our future Army will be as agile in the new domains of cyber and space as it is on the ground. It will contribute the most personnel of all the services to those enhanced information age functions, such as the National Cyber Force and Defence Intelligence, which are so critical to our new integrated force. In practical terms, this amounts to an additional 500 regular personnel, taking us from 72,500 personnel to 73,000. This will not incur any additional cost, since these positions had already been budgeted for within our spending review settlement. Together with the more than 10,000 Army personnel who work in other parts of defence, we will now have a new headline regular Army figure of 73,000, as I said.

As I said back in March, the size and capabilities of our Army must be dictated by the threat. What we can show on paper, or even muster on parade, matters little if we cannot rely on those numbers when it counts or deliver the relevant capabilities required. Unlike the purely financial or numerically driven reviews of the past, we have taken a positive, pragmatic approach, matching our size to the current security environment and the current ambition of this Government.

Mr Speaker, transformation on this scale—every single unit will be affected in some way—requires radical structural and cultural change and that change must start at the top of the Army. So, by 2025, the Army’s headquarters will be reduced by 40% regular personnel, and reserves integration will be made more productive across the force. Notably, the Covid pandemic underlined the need for resilience structures that can cope with crises on the home front, so a new reserve brigade based in York will ensure we can provide forces at the point of need. Simultaneously, we will be strengthening our Army’s institutional foundation across the United Kingdom by establishing regional points of command.

Our Army has always been defined by its people and their adaptive, resilient, determined and diverse qualities, so this review puts investment in human capital first. The more we use our people, the more we must make sure they are properly supported. That is why we will be modernising individuals’ careers and family assistance, all of which will be consolidated in an Army people plan published in the new year.

Finally, in this more competitive age, we will ensure that equipping our people with the ability to understand, compete, and fight across all domains is firmly at the forefront of defence policy-making. This is an Army that we can remain proud of, not just for its historical achievements or the ‘top trumps’ comparisons of numbers of tanks and people in its ranks, but because it is an honest force that is credible and relevant, relentlessly adapting to confront the threats to this nation and to meet the challenges of the future.

We will change the way it operates as much as the equipment with which it does so and evolve culturally as much as structurally, to place our future soldier in the best possible position to compete in all domains, both new and old, to shape our world for the better. Like their forebears, I am certain they will grasp these opportunities with both hands. It is certainly an Army I would have liked to have served in.

I am certain that this modernisation programme will allow them to do just that and ensure the Army remains both relevant and credible, in support of our Prime Minister’s vision for a global Britain that is a safer, stronger and more prosperous place. I commend this Statement to the House.”

--- Later in debate ---

[Baroness Smith of Newnham (LD)]

My Lords, I am grateful to the Minister for repeating the Statement and am glad we have gone back to having Statements repeated, rather than them being assumed to have been read. I have just come straight from the debate on genocide, led by the noble Lord, Lord Alton; I was trying to read the Statement during that debate, but it was such an important debate that it was quite difficult to read anything. It has been very helpful to hear the Minister, but this is also important to get a sense of the Chamber. When something is read out, you can see reactions.

Like the noble Lord, Lord Coaker, I pay tribute to our Armed Forces. Sadly, I was not in Westminster yesterday, so was not able to help welcome back those from Op Pitting, but obviously the whole nation pays tribute to our Armed Forces, everything they have done in that operation, and the many things done in the 18 months to two years in which we have been dealing with Covid.

As the noble Lord, Lord Coaker, pointed out, we are now using our Armed Forces very extensively, yet we seem to think we can have them ever reducing in size. I am a bit worried about this idea of the “future soldier”; I am hoping there will be more than one of them and that this is not a Matchbox idea of an identikit soldier, but rather a strange, generic name meaning the 73,000 personnel that I think we will have as full-time regulars.

I found the Statement extremely confusing, and I do not think it was the way the Minister read it or my inability to read the statistics at short notice. As the noble Lord, Lord Coaker, pointed out, we had a headline goal of 82,000 personnel, which was going to be reduced; at the moment, we are on only about 76,000 anyway. We are now told that another 500 soldiers means an increase to 73,000, but that is still fewer than we have at the moment, so will we see cuts or increases and is this anything more than hypothetical?

At one point, we were given the figure of over 100,000 personnel, including the reserves. Could the Minister clarify what assessment the Government have made about the actual number of personnel needed in an integrated force of regulars and reserves? What will the total target number be and is 500 actually an addition or not?

The second area where there is something a little misleading is the fact that one of the five points we are supposed to take away from this Statement is that there are benefits for the

“whole of our union, with an increased proportion of the Army based in each of the devolved nations”.

That sounds wonderful, but then you look at the detail and realise that that means a larger proportion of a smaller force, so that, with the exception of Wales, the devolved nations will have not actually more personnel serving but just a larger proportion. I am not sure that will feel like a real bonus in Scotland or Northern Ireland. Could the Minister explain how the devolved nations will actually benefit, in a tangible way?

Finally, on capabilities—sorry, it is not finally, I have two more points. On capabilities, the Statement says:

“We are resolving development issues with the, nonetheless technically capable, Ajax armoured reconnaissance vehicle.”


Can the Minister reassure us that this vehicle will ever come into service? Is it really fit for purpose?

My final point is that we have had the Armed Forces Bill going through this place. We are almost at the final stages, but we have talked a lot about AI. That is touched on in the report. Will there be enhanced training for our future soldiers in artificial intelligence and machine learning, and how will that be brought it into the reduced size of the Armed Forces?

[Baroness Goldie (Con)]

My Lords, I thank the noble Lord, Lord Coaker, and the noble Baroness, Lady Smith, for their comments. A number of interesting points have been raised. I welcome the noble Lord’s acknowledgement of living in a world of new threats requiring new technologies and capabilities. That absolutely is what Future Soldier is all about. The noble Baroness, Lady Smith, used the rather provocative phrase “identikit soldier”. No, this means the absolute opposite; it means a flexible, fluid, resilient force in which we need people of talent and of disparate attributes and qualifications, who will all be able to find a place.

The noble Lord, Lord Coaker, asked a number of specific questions, not least on redundancies. I can say to him that there will be no Armed Forces redundancies as part of any restructuring. He was also interested in the timing in relation to the 73,000. My information is that the reduction of the Army will take place over the next four years, so we aim to reach that figure by 2025.

The noble Lord also asked a question about bases. I have very detailed information about that, and it is, generally speaking, good news. It is a mixture of bases which will stay where they are—some that were threatened with closure have now been reprieved, while others have closure dates that have been deferred. The easiest thing I can offer to do is to write to the noble Lord, because there is a picture pan the UK, so I hope he will forgive me if I do that.

The noble Lord spoke in a slightly bilious tone about equipment. I look through a glass half full rather than a glass half empty, because there is a very good story to tell. With the new shape of the Army, we are recognising that innovation, technology and digital transformation all have a role to play. Part of it is recognising sunset capabilities, which will be phased out, but, as I mentioned when I repeated the Statement, there are really exciting prospects, whether with Boxer, the Challenger 3 version of the tank or some of our new technical innovations.

The noble Lord asked specifically about Ajax. That remains at the heart of the Army’s plans for a modernised fleet of armoured vehicles for the future. We are not underestimating the challenges which have emerged in the developmental stage, but that is not in any way to diminish the potential of what will be a hugely important addition to our capability. As the noble Lord knows, the MoD and General Dynamics are currently working on and committed to identifying the root causes of the noise and vibration issues, and want to deliver a safe solution. So, rather than being pessimistic about equipment, I think that we can be very optimistic. It is part of a conjunction: not only do we have to get the correct configuration of the Army but we have to make sure, as I said in repeating the Statement, that it has the equipment that it needs.

The noble Lord raised an important point about Covid support and the extent to which we have been deploying our Armed Forces—I think that we would all want to thank them for this—in responding to the challenge of Covid. They have made a vital contribution on behalf of the country to supporting us all as we come through this pandemic.

The noble Lord hit on a very important point. One of the most exciting features of this Statement is that at long last it not only gives the reservists recognition and definition but acknowledges that they are an essential part of a whole-force approach. The reservists can offer us additional skills, expertise and talents that we may not readily have to hand within our Regular Forces. The recognition that the reservists have a tremendous potential to support us in a lot of the resilience work—hence the new unit in York—is an important development on that front. So I wish to reassure the noble Lord that, far from depleting availability of resource, the new proposals augment and sustain that facility.

The noble Lord asked rather mischievously whether this was the last major Command Paper and whether we could expect another one. I am old enough and long enough in the tooth to say sagely that we do not know what is around the corner. We make decisions for the best of reasons at the times that we make them. These decisions are based on a robust assessment of what threats are and where we are in relation to responding to them in the world we live in, where we now have technologies that we did not dream of 10 years ago. I think that the noble Lord will understand that we are responding to that as a Government innovatively, imaginatively and positively, and this is a very positive development for the Army.

The noble Baroness, Lady Smith, asked about the 73,000 figure and the extra 500. I reassure her that these 500 people are not imaginary; they already exist. They are already budgeted for under our existing structures. They are people of particular skill and talent who have been identified and who can be deployed to these specific technical areas. Yes, inclusive of the reservists, we expect a total force of more than 100,000, and that is a very impressive capability.

The noble Baroness asked about benefits to the union and whether, at the end of the day, we are not giving the different countries within the union a rather poor deal if we are reducing the overall size of the cake. I absolutely disagree with that. I think, as we know, Wales in particular will see an increase. In Northern Ireland and certainly in Scotland, we will see a sustained commitment to the presence in those two parts of the United Kingdom, and that is very healthy. In the case of Scotland, we will see an additional unit, retention of premises that some people were very speculative about and thought would be closed—they are not going to be closed—and a major increase in the presence over and above the Army. In Scotland, if we take into account the submarine headquarters now based in Clyde, HM Naval Base Clyde, and the huge expansion at RAF Lossiemouth to accommodate Poseidon, which has been a big development, with the intention that Wedgetail will go there as well, we have an overall figure for regulars and reserves across the three forces of approximately 14,500 people. That is a very significant presence, and I know that it is a presence that is considered very positive by people in Scotland.

The noble Baroness asked basically whether the Army was fit for purpose. The answer is yes, but, without this, it might not have been. We will be able to field a fighting division in the future; we will be able to respond to our allies and supporters. The noble Lord, Lord Coaker, raised a point in relation to NATO. He is quite correct: we will honour our obligations to NATO. It means that our Army will be better connected, faster and pound for pound more lethal than ever before. It will be integrated across domains with allies in NATO and beyond.

The noble Baroness’s final point was about artificial intelligence, and she had a pertinent question about whether we were sure we were getting the people in that we will need. That is a very relevant and important question. The answer is that we will continue to recruit great people—we have great people, but we will continue to recruit them. There is a need for a broader range of skills, including digital and cyber experts, so the Army will transform the way in which it identifies talent and how it trains its people. There will also be a step change in Army education and professional upskilling, all of which is relevant to what we are trying to do. As I said in the Statement, this is an investment in the human element of the Army, not just an investment in structure, buildings and equipment. We are investing in our people to give the Army the intellectual edge that it needs. I hope that that reassures the noble Baroness.

I think that I have dealt with the questions that were raised, but I shall look at Hansard and, if I have missed anything out, I shall undertake to write to the noble Lord and the noble Baroness.

[Lord Harries of Pentregarth (CB)]

I thank the Minister very much for her Statement. Like other noble Lords, I pay tribute to our Armed Forces, particularly those who have been serving in recent years in Afghanistan under such testing and difficult circumstances.

Obviously, the main thrust of the Statement—rapid deployment and cutting-edge technology, particularly cyberwarfare—is absolutely right. However, as one of the diminishing number of people who served in the mid-1950s, when, if my memory serves me correctly, we had 1 million soldiers in the British Army of the Rhine alone, it comes as quite a shock that we are now talking about an Army of only 100,000 or so. What particularly worries me is that, in recent years, recruitment, even to this number, has not been satisfactory; there has always been a shortfall. What new strategies are there to ensure that this number of 100,000 is at least maintained? Of course, in this new Army, reservists, as the Minister rightly said, will play a significant role, with something like 27,000 of them. Is the Minister satisfied that the number of people with the right qualifications are coming forward for the reserve element in the Army?

[Baroness Goldie (Con)]

I thank the noble and right reverend Lord very much indeed. He raises two important points. On recruitment, he is correct that challenges with recruitment were identified, and the approach to recruitment changed—and, actually, the position has turned around and is very encouraging. Part of what we are doing is to try to ensure that the Army represents an attractive career with an attractive future. Therefore, we are optimistic that recruitment will not be an issue and there will continue to be a good rate of applications to join the Army. We have no reason to think that that will not materialise.

On reservists and skills, one consequence of this reconfiguration, as I said earlier to the noble Lord, Lord Coaker, is to make this a much more attractive prospect for reservists, for two reasons. It gives them a sense that they are valued, acknowledged and regarded as part of the scene, as it were; whereas I think before that they may have felt that they were on the periphery, additional when needed but not at the centre of activity. This turns that around and makes sure that they are part of a whole-force approach.

The other interesting thing is, with the changes that have been introduced and some of the innovations that have been implemented in very recent times, we are now offering greater flexibility to reservists so they can choose, along with their employers, what is a suitable period of commitment for them. It used to be much more rigid: it was a short period away and then back to the full-time job. We are trying to make sure that that is much more flexible. We think that that will also appeal to a lot of people, depending on where they are in their career in the outside world, and that should facilitate heightened interest in the reserves, and, I hope, encourage more people to sign up to be reservists, in the knowledge that we are tailoring a system that is designed to suit them and their employers, as well as benefiting our whole-force approach.

[Lord Houghton of Richmond (CB)]

There is much to be excited about in this announcement—there is quite a lot of novelty—and, if I turned the clock back, I think it is an Army that I would want to join. I congratulate the architects. My worry is that, despite some presentational sleight of hand, it is an Army that will be some 9,000 fewer—and with that smaller Army the delivery will depend on a number of challenging things. Regardless of what the Minister has just said, it needs a perfect recruiting system. In respect of the reserves, it needs the willingness of employers to release reserves not as a last resort but as an integral part of what the Army needs to function on a daily basis. It also demands the adoption of some robotic and autonomous systems, which currently do not even have a legal framework within which to operate.

More widely, however, I want to turn to MACA—military aid to the civil authorities—which involves such things as assistance with foot and mouth, floods, Nightingale hospitals, post-Brexit supply chains and Covid vaccinations; all those things. Historically, those come out of what is called the Armed Forces’ irreducible capacity, but where within this structure is the irreducible spare capacity to meet the exponential rise in the tasks that relate to the resilience of the nation and which featured in the integrated review as among the principal future threats to the country? You cannot have reserves released by their employers to do MACA tasks in the UK when they form an essential part of making the regular force resilient. I think this House should be worried, despite many of the attractive novelties contained in this announcement.

[Baroness Goldie (Con)]

First, I thank the noble and gallant Lord very much indeed for his initial reaction and for his very helpful observation that this is an Army that he would like to join, as I understood him to say. I think that says a lot.

The noble and gallant Lord raises important issues. He first of all mentioned the reduction in the number of personnel. I think he will be aware of this, but in the past we tended to have numbers in boxes and on pieces of paper, which was very comforting, but actually they did not reflect the number of people whom we could call on if the chips were down. For various reasons, the numbers were perhaps inaccurate, or people were unavailable, and they were not a regular or reliable indicator of who we had to hand. The intention behind all this is that, when we talk about these figures, they represent men and women who are on hand, ready to serve and can be called upon.

The noble and gallant Lord mentioned recruitment. I repeat what I said to the noble and right reverend Lord, Lord Harries of Pentregarth, that recruitment has had fairly positive progress in the past two or three years, and we hope that can continue. On the reservists, again, as I indicated, we have always had an interest in the reserve side of our Armed Forces. There is nothing to suggest that that is diminishing. The whole point about the new structures and flexibilities is that that will be increasingly attractive to them. He made the important point that that is only as good as the willingness of the reservists to be more involved and the willingness of their employers to release them. Attempts have been made to ensure that that is a more flexible territory, whereby reservists benefit from getting long periods off. On the whole, employers have a very positive attitude to reservists, so we hope that that attitude of co-operation will continue.

On AI, the noble and gallant Lord is quite right: it continues, as we discussed during the passage of the Armed Forces Bill, to be an intricate, complex and challenging environment. He is aware that, as far as the MoD is concerned, there is a defence strategy coming out fairly imminently, so I cannot say any more about that, other than to reiterate what I said to the noble Baroness, Lady Smith, that we are very clear that we must recruit to the Army people with skills that we need—and we will need the skills of people conversant with those areas of activity. The noble and gallant Lord makes an important point that we want to be sure that we have personnel who are of a calibre to cope with that new environment.

In relation to overall resilience and the Army’s ability to respond to the MACA requests, we have seen that very vividly and impressively articulated in the response to Covid—it is an important point. Bringing in recognition of the reserves and the appointment of the new company in York acknowledges that we need a way of steadily addressing that resilience issue so that we have a core of people poised to respond to these situations. We do not then necessarily take other forces away from what may be important deployed activity. I wish to reassure the noble Lord that implicit in the new structure is this essential component of flexibility and fluidity, so that there is much more movement and much more of a focus on having people available—maybe in smaller units; I accept that—to go to the job when the job needs to be done, wherever that job arises.

[Earl Attlee (Con)]

My Lords, I am grateful to my noble friend the Minister for repeating the Statement. On the point made by the noble and right reverend Lord, Lord Harries, when I joined the TA in 1974, we had 70,000 men and women in the TA alone. I accept that we need to make changes. There is no room for sentimentality, but I am worried that we are being too ambitious and trying to do everything. I am worried that we have too many chiefs and not enough Indians, at all levels.

Though there are numerous questions to ask about defence policy, I will ask three. It was said in the Statement that we will

“operate on a continuous basis … persistently engaged around the globe”,

with many operations being conducted simultaneously. That sounds great, and I accept that our strategic airlift is well organised, but I understand that it is a limiting factor now. What happens when we deploy a whole division? Do we have the airlift to do so? I do not think we do. The Statement referred to the Challenger 3 tank; the programme sounds hopelessly optimistic in suggesting delivery from 2025 onwards, given the technology involved. Can my noble friend the Minister confirm that Challenger 3 will not have electric drive? Will the engine remain the CV12 engine supplied by Caterpillar, and will it have a diesel common rail direct injection system? My noble friend the Minister may want to write on that point. I will resist the temptation to talk about Ajax.

Finally and importantly, the primary role of the British Army is to train for war, but it sounds like we will be on operations all the time—numerous operations—and in contact with the enemy. There seems little time to train, especially for medium and large-scale operations. Most importantly, do we risk having too high a post-traumatic stress disease bill from continuing operations in contested environments?

--- Later in debate ---

[Baroness Goldie (Con)]

My noble friend covered a lot of ground there. Let me see if I can deal with some of the points. He mentioned the possibility of too many chiefs, but I would make two observations. First, as was indicated in the Statement, at Army headquarters, there will be a 40% drop in the number of regular Army personnel, so that is one way of reassuring the Chamber that we are alert to the need to simplify the structures. The other thing implicit in the new structures is that we are providing opportunities for people to join and see career progress. If we have chiefs, we want them to be the right people —in my case, I want them to be women as well as men. If we can broaden the base, which is what this is all about, and provide more channels for activity and for operational work, we will get more people into these units, and they will see a fulfilling career ahead of them.

My noble friend was a little pessimistic about whether we are biting off more than we can chew. I would say no, we are not. The Army will continue to be a fighting entity and to have a warfighting division at its heart. The future structure will comprise two deployable manoeuvre divisions—the 1st and 3rd (UK) Divisions—and one information, manoeuvre and unconventional warfare division, which is the 6th (UK) Division. Thought has been given to what we are trying to do and how we do it.

On the Challenger tank, I am afraid my mechanical engineering knowledge is way short of what is necessary to reply to my noble friend. I will offer to write to him, which I hope is acceptable to him. His final question was on the important matter of the welfare of our Armed Forces. Indeed, I have a sense of déjà vu here, because we talked about this at length in our debates on the Armed Forces Bill. At the heart of what the Government and the MoD do with our Armed Forces is their welfare and well-being. Very important developments have been made in that field. I would hope that my noble friend’s prognosis as to the future would not manifest greater instances of people suffering from post-operational trauma or from mental health issues. We want to ensure that our Armed Forces personnel operate in environments where, with the support and advice that they get, they are spared that. If there are people who are unfortunately affected by such health conditions, we absolutely will make sure that we are in there supporting them, whether directly within their Armed Force environment or through many of the other support agencies available in conjunction with the MoD and the NHS.

[Lord Berkeley (Lab)]

My Lords, there are many things in the Minister’s Statement that I welcome, and a more high-tech, more professional military with the most modern equipment is something that I think we all welcome. What worries me is that the Statement mentioned the word “global” four times. Do we really think we are a global power any more? We have one aircraft carrier, I think, which is fiddling around in the China Sea; maybe it has some Ajax tanks on trial there, but do we think we are going to invade China with it? We are getting to be a bit naive on this. Surely the time has come to get rid of some of this gear and concentrate on the humanitarian elements that the Army does and has done so very well, and to cut out some of these vanity projects that, to me, are just a massive waste of money.

[Baroness Goldie (Con)]

I can see that the noble Lord is not filled with festive enthusiasm for the Statement. I disagree with his assessment; I think that being a global power is not about chest-beating or trying to talk big and look big. Being a global power is about trying to make sure that, where you can work with allies and partners who share the same values, then, together on a global basis, you can influence agendas and bring support to where it may be required.

The noble Lord said that he thought we had one aircraft carrier. I am pleased to inform him that we in fact have two. I am also pleased to inform him that Carrier Strike Group 21, which has been operating over the last few months, most recently in south-east Asia and the Indo-Pacific, has proved an amazingly effective convening power. I can tell the noble Lord at first hand that the interest of other powers in what we have been doing has been extraordinary. They want to understand what we are doing, they want to visit and be on the carrier, and they want to be part of that activity. It is not about going around the world threatening people; it is simply making sure that we are a global presence, that we have a convening power and that we can reassure our friends and allies in different parts of the world that we are in the business of wanting to stand with them, shoulder to shoulder, and to support them if they feel in any way intimidated, never mind threatened. That is what we try to do.

The noble Lord suggested that there is a binary choice between having an effective defence capability—which of course is what the Government want and, I would argue, is very much what we do have—and dealing with humanitarian challenges. It is not a binary choice; the obligation of a responsible state is to deal with both. It is in fact our naval and military capabilities that enable us to respond to humanitarian situations. He makes an important point, but I do not think that it is a question of one or the other—you try to address both.

I certainly disagree with his somewhat depressed assessment of where we are. What we are doing with our defence capability in the United Kingdom is positive, strong, necessary, effective and, let me tell him, much admired, not least in NATO. He has a vision of what is meant by the phrase “global power”, but it is not about some Victorian caricature of people strutting around looking self-important; it is being at the cutting-edge of the real-life, 21st-century global existence and trying to be a presence for good within that.

[Viscount Waverley (CB)]

My Lords, the future size has been referred to. Keeping the peace necessitates preparing for war, with the potential need for rapid escalation. What consideration has been given by planners to the capability to react on parallel fronts, given that this is a regrettable possibility?

[Baroness Goldie (Con)]

The noble Viscount raises a good question. I would say that, implicit within the reconfiguration of what we are doing, is the very desire to introduce the flexibility to which he is referring, so that we have the capacity to respond quickly and effectively if a need arises. I think if he looks not just at the size of the Army but at how we now propose to restructure it into, I think, a much more intelligent way to address threat, wherever it is found and in whatever form it manifests itself, he will see that this is a very reassuring way forward to do just that.

Armed Forces Bill

Baroness Goldie Excerpts

Report stage
Tuesday 23rd November 2021 Lords Chamber

[Lord Robathan (Con)]

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.

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

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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[Baroness Goldie (Con)]

My Lords, I thank all noble Lords for a genuinely interesting and thoughtful debate. I will focus on the amendments that comprise the grouping: Amendments 3 to 7 and Amendment 17. To that end, I thank the noble Lord, Lord Coaker, for tabling his well-intended—I know that that is what they are—Amendments 3, 5, 6 and 7, and I thank the noble Baroness, Lady Brinton, for supporting them.

I was aware during the debate that some contributors made fairly wide-ranging speeches, not least focusing on citizens of Hong Kong and former Hong Kong military service personnel. These are important issues, but I would rather deal with them under Amendment 26, which seems more relevant to that particular area of concern. So, in addressing the amendments in group 2, I will confine my remarks to the issues covered by them.

The purpose of these amendments is to widen the scope of the new covenant duty to the areas of employment, pensions, compensation, social care, criminal justice and immigration in all four home nations. As I made clear in Committee, the new duty created by the Bill is designed to initially focus on the three core functions of healthcare, education and housing. This quite simply reflects those already in statute that are the most commonly raised areas and where variation of service delivery across localities can inadvertently cause disadvantage to the Armed Forces community.

Importantly, future areas of concern can 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.

As a number of your Lordship have indicated, our plan is to use the covenant reference group as the focus of this work. It has a broad representation from the Armed Forces community, service charities, families’ federations, the Local Government Association and senior officials from both central government departments in Westminster and the devolved Administrations. I suggest that the covenant reference group is therefore ideally placed to be closely involved in the future development and running of this process. It will bring the necessary expertise and representation together to best consider suitable additions to the scope of the duty.

I wish to make clear—I am not being evasive or trying to elude or escape responsibility—that we have to be very careful about what we are creating with the Bill, understand how it will work in practice, make assessments, and then have a clearer sense of what may be needed and may require to be added in the future. This will also provide an opportunity for areas of concern to emerge and be highlighted, and it may be possible that these can be addressed through other means.

In adopting this approach, we considered the practicalities of extending the covenant duty to further policy areas, and the timelines involved. Any addition to the scope of the duty will require extensive consultation with stakeholders and the devolved Administrations in order to identify the appropriate bodies and functions to bring into scope and to work through any issues arising as a result of different procedures and legal frameworks in devolved policy areas.

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

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 entire United Kingdom. That is not in any way dodging the bullet. I am not trying to be evasive; I am trying to explain why I think this a sensible and cautious way to proceed, and I therefore ask the noble Lord not to press these amendments.

I turn to Amendment 4, tabled by my noble and learned friend Lord Mackay of Clashfern, and supported by the noble and gallant Lord, Lord Craig of Radley, the noble Lord, Lord Coaker, and the noble Baroness, Lady Smith of Newnham. The purpose of Amendment 4 is to make central government departments subject to the new covenant duty. This new duty arises when a specified public body exercises a relevant function. Those functions, which are specified in the Bill, are exercised by local authorities and other public bodies, and are not matters for which central government has day-to-day responsibility.

The problem with the amendment as drafted is that it would not, as I far as I can see, serve any identifiable meaningful purpose. I can understand the enthusiasm among opposition Members of this House to land anything they possibly can on the Government. I know that my noble and learned friend Lord Mackay is not motivated by these sentiments and that he genuinely believes that there is an omission here that should be addressed, but I am trying to explain that I am not quite clear what the omission is, and I am certainly not clear how the amendment would address it.

It occurred to me that, in addressing the principle of this amendment, it would be useful to explain the Government’s thinking behind the design of the new covenant duty and how we see it establishing a firm foundation from which to build into the future. I hope noble Lords will indulge me: I will go into this in some detail because my noble and learned friend raises an important issue, and I believe it merits serious discussion and a considered response. I will attempt to give due attention to his amendment.

As I have outlined before, in considering how to take forward our commitment to further strengthen the covenant in law, we looked first at what the covenant has already achieved without being brought into any statutory provision. The considerable number of successful covenant initiatives across many different policy areas shows how the covenant provides a framework through which the widespread admiration and support for our Armed Forces community can flourish, allows scope for innovation and permits future growth. That is why we designed the new covenant duty around the principle of “due regard” as a means of building greater awareness and understanding of the lives of the Armed Forces community, which will bolster, rather than weaken, this support.

We considered carefully which functions and policy areas the covenant duty should encompass, including those that are the responsibility of central government. This required an assessment of the benefits arising from their inclusion, focusing on the purpose of the duty: to raise awareness among providers of public services of how service life can disadvantage the Armed Forces community, and so encourage a more consistent approach across the UK.

We were mindful that central government is responsible for the overall strategic direction for national policy, whereas the responsibility for the delivery of front-line services and their impact generally rests at local level. The Government are fully aware of issues impacting on the Armed Forces community. Indeed, we work with other departments and organisations to raise awareness across all service providers. The inclusion of central government in the scope of the duty was therefore not seen as necessary.

The noble Viscount, Lord Brookeborough, raised a particular issue with reference to Northern Ireland. The key front-line services we wish to target are generally devolved issues. They are not the responsibility of the Westminster Government, so any additions to the scope of the duty in respect of central government would not address the concern he has but would cause a greater disparity in covenant delivery if the—

[Viscount Brookeborough (CB)]

I thank the noble Baroness for giving way. I remind her that when we found that the Executive were not operating on things that they should operate on, as in this case—I am talking about abortion—this Government, from here, overrode the Assembly. Therefore, there is a precedent for doing so.

[Baroness Goldie (Con)]

The noble Lord refers to a very difficult and sensitive issue, and I think he is referring to the time when the Executive were not functioning in Northern Ireland. This Bill is concerned with the actual delivery of services that exist at the moment. It is the responsibility of Northern Ireland’s devolved legislature to deliver health, housing and education, although it may not directly be doing any of these things. That is why bringing in central government does not address the noble Lord’s concern. Indeed, there is an argument that, if you brought in the Westminster Government but not the devolved Governments, there would be an even greater disparity in covenant delivery. The reason the devolved Governments are not in this Bill is that it would seem to be beyond its scope.

I have previously explained that, as we look to the future, the vital element in our approach rests with the new powers granted to the Government in the Bill to add to the scope of the duty. This will allow it to effectively adapt to the changing needs and concerns of the Armed Forces community. We are engaging with government officials and covenant stakeholders to establish an open and transparent process, by which possible additions to the new duty can be thoroughly considered and evaluated, and we expect issues of concern to be raised, as they are now, by members of the Armed Forces community, by service charities and by other stakeholders through our existing networks. So, to be clear, we see no restriction to the nature of any issue raised, including those that fall within the responsibility of central government.

My noble friend Lord Lancaster asked wisely whether it would not have been better to approach this incrementally. I think that is exactly what would be better, and that is what the Government are intending to do. His other words, I think, were about being very wary of doing too much too soon. The reason the Government are being cautious about this is that we are breaking new ground. We are going where Governments have not gone before in relation to the covenant. We hope it will lead to improvement right across the United Kingdom, but we have to assess in practice how this will all work once this legislation has gone through.

The plan, as we look to the future, is for the work to be focused through the covenant reference group, which, as a number of your Lordships are aware, is made up of independent representatives from service charities, such as the Royal British Legion, the War Widows’ Association and the families’ federations, and, as I said earlier, includes senior officials from central government departments at Westminster and from the devolved Administrations. That group plays an important role in working with the Government to set out the overall direction of the covenant. It ratifies the grant-awarding priorities of the Armed Forces covenant fund trust, as it is recognised as having a clear understanding of the issues of most concern to the Armed Forces community.

I think it was the noble Lord, Lord Coaker, who asked about the covenant reference group and its terms of reference. The covenant reference group feeds into the ministerial covenant veterans board, chaired by the Defence Secretary and the Chancellor of the Duchy of Lancaster, and that board last met on 8 November. So, at the senior levels of government, this work is very much on the radar screen and being addressed.

In my opinion, the covenant reference group is ideally placed to be closely involved in the evaluation process, both in terms of its development and the conduct of its work. Where there is evidence to support the inclusion of new bodies and functions, a recommendation will be made to the Secretary of State for Defence, who will then consult with relevant stakeholders. Where a decision is made to exercise the power to extend the scope of the duty, further consultation will be required with key stakeholders before making regulations, which would need to be approved by both Houses of Parliament.

Crucially, any evaluation process must also ensure that extending the scope of the new duty would help to address any perceived problem, as it may not always be the appropriate response and there may be other methods of addressing the areas of disadvantage required under the covenant that do not necessarily require statutory powers.

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[Lord Kerr of Kinlochard (CB)]

I do not disagree with all the good things that the noble Baroness is describing, which the Government have brought about, but I have not heard her address the central argument of the noble and learned Lord, Lord Mackay of Clashfern: that it might be easier for the Government to persuade others to go on doing good things if the Government bound themselves in the same way as they are seeking to bind others. I suppose the noble Baroness could say that the Government feel bound already, but if so, why not spell it out in the Bill?

[Baroness Goldie (Con)]

I am sure the noble Lord has been listening carefully to the argument that I have been advancing, but I have been trying to distinguish between identified, critical core services—in this case housing, education and health, which the Armed Forces community said mattered most to them—and how we address the delivery of these services. In the main, these services are not delivered by central government but by a range of other agencies, and may be the responsibility of devolved Administrations, in turn delivering them through their agencies. The point I am making is that adding an obligation to central government does not seem in any way to address the need that we have identified that has to be addressed: the current disparity in the delivery of services across the United Kingdom. That, quite simply, is what the Bill is seeking to rectify. That is why trying to attach a covenant obligation to central government is something of a red herring—I do not actually see what it is going to deliver.

Before the noble Lord interrupted me, I was simply explaining, by way of illustration, the point I have just been making: exactly what it has been possible for the Government to do without attaching any statutory obligation on them, and I am not even halfway through my list. At the risk of being tedious with your Lordships, I was also going to mention, finally, a new holistic transition policy that co-ordinates and manages the transition from military to civilian life for service personnel and their families when they leave the Armed Forces. The Defence Transition Services also supports those in that position. We have the Career Transition Partnership, and a range of initiatives and support packages covering a wide range of activity, all of which benefit our Armed Forces personnel. I merely adduce that list to illustrate how alternative processes allow areas of concern to be brought to light more readily and addressed more quickly through other means, if necessary, including action to be taken by central government departments and devolved Administrations, where appropriate.

I think it was the noble Lord, Lord Coaker, who specifically raised the evaluation process. This would feed into our existing commitment to review the overall performance of the covenant duty as part of our post-legislation scrutiny. That review will be submitted to the House of Commons Defence Select Committee and will also be covered in the covenant annual report. This is in addition to regular parliamentary scrutiny, such as Parliamentary Questions and regular reviews by the Select Committee, or whatever form of inquiry Members of the other place and of this House may wish to undertake. The detail of the evaluation process is still being worked on with our stakeholders, but I hope that this background and the outline of the process provides reassurance that it represents a better way forward and that we are committed to continuing our work to mitigate the impact of service life on the Armed Forces community, wherever it may occur.

Listening to some of the contributions, it occurred to me that there may be a misunderstanding of the role of the Armed Forces covenant. My noble and learned friend Lord Mackay of Clashfern recalled an interesting and arguably disturbing situation, in which it is possible that Armed Forces personnel suffered harm. I undertake to look at that instance in detail; he provided a reference for where I can find more information.

However, I say to my noble and learned friend that central government, and the MoD in particular, are directly responsible for the Armed Forces, and the MoD has always looked after the welfare of service personnel. During the Bill’s passage through this House, we have heard how the support provided has improved, expanded and developed over time, particularly in relation to issues such as mental health. Central government and the MoD answer to Ministers, are held to account in Parliament, and may be held to account by the courts of this land. But the covenant is a separate concept: it is a promise by the nation as a whole to the Armed Forces community that they will not be disadvantaged because of their service. It brings in other organisations, such as health providers and local authorities, who are not directly responsible for the Armed Forces community but whose decisions undoubtedly affect them. It is this new duty that will ensure that these organisations consistently apply the principles of the covenant and can be confident of the legal basis for doing so. Based on this fairly lengthy explanation, I hope that my noble and learned friend will not press his amendment.

I turn to Amendment 17, also tabled by my noble and learned friend Lord Mackay of Clashfern. I know that he is motivated by the best and most honourable of intentions, but I am somewhat unclear about its purpose. The new definition contained in the amendment adds nothing to the duties already set out in the Bill. Indeed, perhaps disquietingly, it seems to decrease the scope of that duty, which I know is not my noble and learned friend’s intention.

We are clear that the Armed Forces covenant is a promise by the nation to support our Armed Forces community. The amendment characterises the scope and character of that promise as an agreement between the Secretary of State and servicepeople. But, with the greatest respect to my noble and learned friend, in doing so, it fails to capture its essence: it is a much broader and more widely embracing concept.

The covenant was framed during a time of great pressure on the Armed Forces community. As I have described at some length, it has been delivered highly successfully in the succeeding decade because it captures the spirit of appreciation and voluntary support for that community from people of every walk of life across the United Kingdom. This voluntary spirit is why it is called a covenant and framed as something far greater than the more transactional approach that this amendment could engender. To express the covenant in the way proposed by this amendment goes against the spirit of the covenant and the many successful initiatives that it has produced, built on the widespread admiration and support to which I have referred.

The Armed Forces covenant is described on the government website for the Armed Forces, and on the front of the annual report, as

“an Enduring Covenant Between the People of the United Kingdom, Her Majesty's Government—and—All those who serve or have served in the Armed Forces of the Crown and their Families.”

That definition is not in statue, but the principles of the covenant appear in the Armed Forces Act 2006. That is why this Bill has been taking forward greater detail, to try to assist the delivery of vital services for our Armed Forces community.

The description I have just given of the covenant far better captures its nature, which provides the framework through which support for our Armed Forces community can thrive and grow. I thank your Lordships for indulging me with patience and courtesy, as these were important points which had to be addressed at length. In view of the explanation I have given, I hope my noble and learned friend will feel able to withdraw his amendment.

[Lord Mackay of Clashfern (Con)]

My Lords, I thank the Minister for her very detailed answer to my amendment. It was clear to me, from the beginning of this provision titled “Armed Forces Covenant Report” in the 2011 Act, that all that had been done to make any references to the Armed Forces covenant in this was to delete the word “report”. But it seemed to me that, in the ordinary course of statutory interpretation, you need to know what you are talking about, and I was surprised—I thought I must have missed something, though the Minister now confirms that I did not—that there was nothing in statute to define the Armed Forces of the Crown covenant. A covenant is a contract, and it is obvious that the people of the United Kingdom are represented in this agreement by the Secretary of State. Therefore, it seems to me odd that the Secretary of State is not prepared to have regard to the principles given at the opening of this provision. Of course, the term “Secretary of State” includes the Secretary of State for Defence and other Secretaries of State as well, if that is relevant to the provision in question. I find it hard to have the Government of the United Kingdom say that they are not prepared to be bound to have regard to the principles of the covenant.

If I should by any chance be successful, this will go back to the House of Commons, and the Commons will have to ask themselves whether it is reasonable that the Government of this country should refuse to be bound to have regard to the principles of the Armed Forces covenant. I do not think the Government intend that, but that is the effect of leaving this out. Having this on a website is not equivalent, as yet, to having it in law—the statute book is still distinct from a website. It rather comforts me that the definition on the website includes the Government. I think that something of this kind is necessary, and I had rather hoped that the Minister might think of Third Reading as a time to put in a definition, but there is no offer of that kind, and I understand why she is not a position to do that.

I thank all who have supported me, as I think all who have spoken apart from the Minister have, which is a very good situation so far as I am concerned. I am not concerned about anything except that the Armed Forces covenant should be as effective as possible in law in our country. I do not subscribe to the other extensions that were being suggested in amendments because I can see that there is power to do that and, as and when resources are available, it would be right to bring that in by regulation.

In the meantime, I very much regret to tell my noble friend that in all conscience I do not feel able to withdraw the amendment. It is a matter that has to be faced by those who are responsible for this if they are not prepared to subscribe to having regard to the principles of the Armed Forces covenant.

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8: Clause 8, page 15, line 35, at end insert—
“(3A) Guidance under this section—(a) may not be issued unless a draft has been laid before Parliament, and(b) comes into force on whatever day the Secretary of State may appoint by regulations.”Member’s explanatory statement
This amendment would provide for guidance under new section 343AE to be laid in draft before Parliament and for the coming into force of the guidance to be governed by regulations (and is to be read with Baroness Goldie’s amendments at lines 36 and 43 of page 15 and page 18, line 39).

[Baroness Goldie (Con)]

My Lords, I am delighted to speak to the government amendments that will implement specific recommendations of the Delegated Powers and Regulatory Reform Committee in respect of the Armed Forces covenant. Among this group are some minor and technical corrections to the Bill.

The Delegated Powers and Regulatory Reform Committee—whose painstaking work is often unsung and to whom I pay tribute and offer thanks—made two recommendations in respect of the Armed Forces covenant. These relate to the power under new Section 343AE to issue guidance to which public authorities must have regard when exercising relevant statutory functions, and to those who are classed as “service people” and are therefore beneficiaries of the covenant duty. Having considered the committee’s recommendations and recognising the impact these matters may have on the duties imposed on public bodies, we have brought these amendments to provide for greater parliamentary scrutiny in these key elements of the duty.

I will first address government Amendments 8, 9, 11, 12, and 19, which relate to the statutory guidance that we are preparing in support of the duty. These amendments will require the guidance to be laid before Parliament in draft before it can be issued and provide for the guidance to be brought into force by regulations using the affirmative resolution procedure. Given the status of the guidance and its importance in supporting the public bodies that will be subject to the duty, these amendments will provide Parliament with a greater opportunity to scrutinise this document before it is issued.

Amendments 16, 18 and 20 relate to the definition of “relevant family members” for the purpose of the covenant duty. The covenant principles relate to disadvantages arising for “service people”, with special provision being made for such people. The term “service people” is defined in Section 343B of the Armed Forces Act 2006 to include “relevant family members” of service and former service personnel, but this does not include a description of precisely who is a relevant family member for the purposes of the covenant duties. As this group of people will need to be considered by those public bodies in scope of the new duty, we have accepted the committee’s recommendation to specify in regulations who is to be regarded as a relevant family member and that the affirmative resolution procedure is appropriate.

These amendments will therefore amend Section 343B of the Armed Forces Act 2006 to provide for “relevant family members” to be defined in regulations that will be subject to the affirmative resolution procedure. The definition set out in the regulations will apply to both the new “due regard” duty and the Armed Forces covenant report. However, for the purposes of the report, the definition will also include such persons connected with service members and ex-service members as the Secretary of State may decide, as is currently the case under Section 343B.

In addition to the recommendation of the Delegated Powers and Regulatory Reform Committee, the amendments will also require the Secretary of State to consult with the devolved Administrations and other stakeholders he considers appropriate before making the regulations.

There are further minor and technical amendments to Clause 8. Amendments 10 and 13 amend new Sections 343AE(4)(c) and 343AF(7)(c) to correct drafting omissions to ensure that the duty on the Secretary of State to consult a Northern Ireland department on regulations or guidance applies only where the Northern Ireland devolved context is affected. This mirrors the position for Wales and Scotland.

Amendment 14 to new Section 343AF, which is inserted by Amendment 19, removes a superfluous part of the definition of Northern Ireland devolved competence, also bringing it into line with the approach for Wales and Scotland. I hope your Lordships will support these amendments, which will provide Parliament a greater opportunity to scrutinise these key elements supporting the covenant duty before they become law.

Amendments 21 and 22 are minor and technical in nature and are being brought forward to improve the drafting of the Bill and ensure consistency with existing legislation. Amendment 21 will allow the regulations that replicate the effect of Section 10(5) of the Police Reform Act 2002 to also replicate the effect of Section 54(2D) of the Police Act 1996. The service police complaints commissioner and Her Majesty’s Chief Inspector of Constabulary have complementary statutory functions and are charged with the oversight of the service police forces. This amendment will require them to enter into arrangements with each other for the purposes of securing co-operation and providing assistance in the carrying out of their respective functions. Amendment 22 would provide for the records of the service police complaints commissioner to be “public records” for the purpose of the Public Records Act 1958. I beg to move.

[Lord Tunnicliffe (Lab)]

My Lords, we welcome the increased parliamentary scrutiny for the statutory guidance on the application of the duty for due regard. This was a recommendation of the Delegated Powers Committee, which we thank for its work on this. Could the Minister give us some indication of how the consultation with the devolved Administrations on drafting the guidance is going? We also welcome the Government’s acceptance of the Delegated Powers Committee’s recommendation to ensure that regulations defining “relevant family members” are subject to the affirmative procedure.

[Baroness Smith of Newnham (LD)]

My Lords, from these Benches, I echo the comments of the noble Lord, Lord Tunnicliffe. The amendments that have been brought forward all seem sensible and, as the Minister said, we owe a debt of gratitude to the Delegated Powers and Regulatory Reform Committee for looking in such detail at this legislation, as in so many cases, and particularly for being glad, as always, to have any changes made with affirmative assent rather than negative approval. There is little to add at this stage. We look forward to the Minister moving these amendments and then moving to other groups that might be a little more contentious.

[Baroness Goldie (Con)]

My Lords, I thank the noble Lord, Lord Tunnicliffe, and the noble Baroness, Lady Smith of Newnham. We are working with our stake- holders over the course of this year to develop the accompanying statutory guidance document. Their views are essential to ensure that the guidance is practical, useful and robust. We are also engaging with a wide range of stakeholders, including devolved Administrations, covenant partners across government, the Armed Forces community, local authorities, relevant ombudsmen and the service charity and welfare sectors. As I indicated, the Secretary of State is required to consult the devolved Administrations and other stakeholders whom he considers appropriate before the guidance can be published. Once it is, the document will remain subject to periodic update to ensure that it continues to remain up to date. I hope that answers the points that the noble Lord was interested in.

Amendment 8 agreed.

Moved by

[Baroness Goldie]

9: Clause 8, page 15, line 36, leave out “issuing guidance under subsection (1)” and insert “laying draft guidance under this section before Parliament”
Member’s explanatory statement
This amendment is supplementary to Baroness Goldie’s amendment at page 15, line 35.

--- Later in debate ---

[Baroness Goldie (Con)]

I thank my noble friend Lord Lancaster for retabling his amendment. I understand his motivation for doing so. I thank the noble Lord, Lord Tunnicliffe, and the noble Baroness, Lady Smith, for their contributions. I will not rehearse the whole structure behind the VAPCs, which my noble friend very eloquently did. I will make two points in response to him. First, for several years, VAPC members have undertaken activities that go above and beyond the scope of the statute. They have undertaken these additional activities on a non-statutory basis instead, and there have been no substantive issues with them doing so.

My second point is to acknowledge—and I hope this reassures my noble friend—that there may be ways in which we can improve on this arrangement. The Government are committed to looking again at the role of the VAPCs. That is why the MoD and the Office for Veterans’ Affairs recently agreed with the chairs of the VAPCs a new set of non-statutory terms of reference to guide their activities. The terms of reference envisage that VAPC members will undertake many of the activities listed in his amendment, such as raising awareness of the strategy for our veterans and the proposed new duty to have due regard to the covenant. The terms of reference are set for an initial period of 12 months. I confirm to my noble friend that we intend to use this period and the evidence we gather during it to work with the VAPCs to review what they have done, how effective they have been in doing it, and whether and how their statutory role might need to be amended in the future.

Anticipating the point from the noble Baroness, Lady Smith, I hope my noble friend will understand why seeking to amend this Bill at the present time is premature. The Government have already set themselves on a course to review the role of the VAPCs, but we are doing this first via the introduction of new terms of reference, and we want to give the VAPCs a chance to perform under them before we take firm decisions about their longer-term future.

Legislative change may well need to follow and the evidence we gather over the coming months will help to inform us on this point. As it is, we are not sure that the legislative provision proposed in my noble friend’s amendment is necessarily the most suitable or effective way of achieving the desired outcome. For example, it would provide for only a specific and rather limited adjustment to the VAPCs’ statutory role, when instead we might want to consider more fundamental changes.

My noble friend will appreciate that I cannot speculate about the precise vehicle or timing for any future legislative change. However, I am very willing to commit to him that I and my officials will explore what changes we can make in this area and I hope that, with that reassurance, my noble friend will be content to withdraw his amendment.

Amendment 15 withdrawn.

Moved by

[Baroness Goldie]

16: Clause 8, page 18, leave out line 32 and insert—
“(b) subsection (4) is amended as follows— (i) in the definition of “relevant family members”, after “means” insert “such persons as may be prescribed, and for the purposes of section 343A also includes”;(ii) at the appropriate place insert—”Member’s explanatory statement
This amendment and Baroness Goldie’s amendment at page 18, line 37 would provide for “relevant family members” to be defined in regulations.

--- Later in debate ---

Moved by

[Baroness Goldie]

18: Clause 8, page 18, line 37, at end insert—
“(c) after subsection (4) insert—“(4A) In subsection (4) “prescribed” means prescribed by regulations made by the Secretary of State under this subsection.(4B) Before making regulations under subsection (4A) the Secretary of State must consult—(a) the Welsh Ministers so far as the regulations contain provision that is within Welsh devolved competence,(b) the Scottish Ministers so far as the regulations contain provision that is within Scottish devolved competence,(c) the relevant Northern Ireland department so far as the regulations contain provision that is within Northern Ireland devolved competence, and(d) any other persons the Secretary of State considers appropriate.(4C) Subsections (8) to (10) of section 343AF apply for the purposes of subsection (4B) as they apply for the purposes of that section.””Member’s explanatory statement
This amendment and Baroness Goldie’s amendment at page 18, line 32 would provide for “relevant family members” to be defined in regulations. This amendment also imposes requirements with regard to consultation.

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Moved by

[Baroness Goldie]

21: Clause 11, page 23, line 6, at end insert—
“(2A) If regulations under subsection (1) include provision corresponding (with or without modifications) to section 10(5) of the Police Reform Act 2002 (general functions of Director General), the regulations may also provide for subsection (2D) of section 54 of the Police Act 1996 (functions of inspectors of constabulary) to apply (with or without modifications) in relation to the Service Police Complaints Commissioner as that subsection applies in relation to the Director General of the Independent Office for Police Conduct.”Member’s explanatory statement
This amendment would enable regulations to impose on the chief inspector of constabulary duties which would be reciprocal to duties imposed on the Service Police Complaints Commissioner by the same regulations.

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Moved by

[Baroness Goldie]

22: Schedule 4, page 52, line 23, at end insert—
“2A_ In Part 2 of the Table in paragraph 3 of Schedule 1 to the Public Records Act 1958 (definition of public records), at the appropriate place insert—“Service Police Complaints Commissioner.””Member’s explanatory statement
This amendment would provide for records of the Service Police Complaints Commissioner to be public records for the purposes of the Public Records Act 1958.

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The point made by my noble friend Lord Robertson about the defence representation unit in Amendment 27 is important. He made his points really well, so I will not repeat them, but the necessity to ensure that Armed Forces personnel and veterans are properly supported when they face legal action is a principle I am sure we would all support. My noble friend may not put that to a vote, but it is an important point of principle that the Government need to consider.

[Baroness Goldie (Con)]

My Lords, I thank the noble and learned Lord, Lord Thomas of Cwmgiedd, for his amendment. I know this is an issue in which he is keenly interested and one which he has pursued with vigour. I will speak first to Amendment 23 in his name and supported by the noble Lords, Lord Coaker, Lord Robertson of Port Ellen and Lord Thomas of Gresford.

We had a useful and, I think, constructive debate in Grand Committee on the defence serious crime unit and this amendment. The DSCU is an important part of Sir Richard Henriques’ recent review. Indeed, 20 of the 64 recommendations of that review relate to that unit. I am extremely pleased that we have been able to take swift action to make the necessary changes to primary legislation in order to deliver that unit, and I think everyone shares that view.

Let me address at the outset the specific issue of the number of Sir Richard’s 20 recommendations on the DSCU that the Government are accepting. I think noble Lords were left with the impression that only a small number had been accepted, because the government amendments in Grand Committee related only to three recommendations on the DSCU. It is certainly not the case that only a small number of recommendations have been accepted. Let me explain. With one exception, where we are taking a slightly different approach to civilians, the Government accept all Sir Richard’s recommendations on the DSCU. All the recommendations that we accept and that require primary legislation are dealt with in the Bill. The three recommendations I referred to in Grand Committee reflect those that require primary legislation to constitute the DSCU. These are the changes needed to deliver an operational unit. In particular, they give the provost marshal for serious crime the same powers and duty of investigative independence, on the same terms, as the existing provost marshals. The other recommendations that the Government accept do not require primary legislation.

This mirrors the usual position of a review of this nature, where some recommendations require primary legislation to be implemented and others simply do not. I have sought to explain this in clear terms today, but I have also made available a fact sheet to set out in detail the Ministry of Defence’s work on the DSCU. Indeed, a number of your Lordships helpfully referred to that. I have circulated that fact sheet to opposition defence spokespersons, but I have copies with me in the Chamber today if anyone wishes sight of one.

I also want to assure noble Lords that the Ministry of Defence is now taking forward the DSCU project, both the legislative and non-legislative elements, with considerable speed and energy. As well as the swift work on the primary legislation, work on the necessary changes to secondary legislation is well under way. In Grand Committee, noble Lords agreed a power to make consequential secondary legislation, which will facilitate this once the Bill is passed. A DSCU implementation team has been established, led by a senior civil servant. It is a multidisciplinary team of project management and service police specialists representing the three services. An individual has now been selected to be the provost marshal for serious crime designate. Their initial focus will be to lead the implementation of the DSCU to full delivery. I noticed the comment by the noble Lord, Lord Thomas of Gresford, that he thought this was putting the cart before the horse, but I disagree. This is a sensible, logical, structured way in which to proceed.

I now turn to the specific issues raised in this amendment. In general terms, I do not believe that adding these further Henriques DSCU recommendations to primary legislation is necessary. They will form part of the work that is already under way to establish the DSCU. I am happy to confirm that we are already working towards a DSCU by April 2022 and will look to implement a victim and witness care unit shortly after. In addition, the implementation team has already started work on the establishment of a strategic policing board, which is also to be in place by April 2022. The provost marshal for serious crime will produce an annual report to the Minister for Defence People and Veterans, which that Minister will provide to Parliament. None of these matters requires primary legislation.

Let me say a bit more about three specific issues: the independence of the DSCU, the role of civilians, and the investigative protocols. On independence, the amendment includes the language:

“The tri-service serious crime unit must carry out its investigations in a manner that is operationally independent of the military chain of command.”


However, I respectfully suggest to the noble and learned Lord, Lord Thomas of Cwmgiedd, that this is already reflected in the Bill. I remind your Lordships of the recommendations from Sir Richard regarding the implementation of a defence serious crime unit. He was specific. He said:

“The Provost Marshal (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”


existing

“Provost Marshals under section 115A of the Armed Forces Act 2006.”

That is what we achieve in this Bill and what we are delivering under Clause 12(3).

As the noble and learned Lord indicated, the UK courts have already found that, under the existing structure, the service police are capable of being

“hierarchically, institutionally and practically independent”

of those that they are investigating. It is therefore right that the duty on the new provost marshal for serious crime is the same as the existing duty on the provost marshal of each of the service police forces. I urge noble Lords to look at Clause 12(3) if anyone is in any doubt about the impact of that clause.

The Ministry of Defence shares Sir Richard’s ambitions for an increased role for civilians in the DSCU. It is already possible under existing arrangements for civilians to work alongside the service police in delivering service police functions. There are examples of civilians taking on leadership roles in the service police, and of secondments from civilian police forces to the service police. As part of the work of the DSCU implementation team, we will look at options to appoint a civilian in a senior leadership role and at how experienced civilian police can work with the unit. I say specifically to the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lords, Lord Thomas of Gresford and Lord Coaker, that what we cannot do at this stage is have a civilian as deputy provost marshal, because that is a role for service persons and currently subject to Armed Forces systems of command and discipline. At present, simply making them a civilian might give them the title of deputy provost marshal but without the concomitant mechanisms of accountability and control. I am sure that is not what the amendment desires to achieve, but it would be its effect. The role of civilians therefore needs further consideration and work as part of the implementation exercise. However, I hope I have indicated that there is no antipathy within the MoD to the role of civilians in this important process.

I want to address the protocols regarding fatalities and ill-treatment cases referred to in the amendment. As we set out in the ministerial Statement, and as I confirmed in Grand Committee, the non-legislative protocols for dealing with fatalities and ill-treatment cases on overseas operations—between the service police, the Director of Service Prosecutions and the Judge Advocate-General—should rightly be considered by those independent bodies in the first instance. I draw noble Lords’ attention to Sir Richard’s own view on this, which is that “an agreed protocol” is “preferable to legislation”. That particularly avoids compromising the independence of the Director of Service Prosecutions. We support Sir Richard’s recommendation that the protocols should be non-legislative. Taking that approach will allow for more flexibility as the protocol text can be amended at speed in response to lessons learned during its application. Sir Richard also made the point that agreements along the lines that he proposed,

“doubtless with variations to achieve flexibility”,

could be achieved but only once the issue of coronial jurisdiction had been resolved. That was his recommendation 41, and we will engage with the Ministry of Justice on it.

We will be supporting the service police, the Director of Service Prosecutions and the Judge Advocate-General in this important work. The principles of timeliness, regular reviews and consultation are extremely significant. However, there are likely to be issues for these bodies and individuals to consider. In particular, they would need to be comfortable that the arrangements respected the proper relationships between the police, the prosecutors and the judiciary. Further work will be needed to ensure that we address Sir Richard’s concerns over investigations without falling foul of the constitutional principles of the independence of the investigation, the prosecution and the judiciary.

As I have set out, these are important but complicated matters, and the service police, the Director of Service Prosecutions and the Judge Advocate-General need time to properly consider them. While I am sure they will seek to undertake the necessary work to progress them as quickly as possible, it is vital that they get them right and it is important to respect their independence. I do not think it would be appropriate for Parliament to set a timeline of July 2022 for their implementation. I therefore urge the noble and learned Lord to withdraw his amendment.

I will speak to the other half of the group—Amendment 27—which has been tabled by the noble Lord, Lord Robertson of Port Ellen, and supported by the noble Lord, Lord Coaker, and the noble and learned Lord, Lord Thomas of Cwmgiedd. This amendment seeks an early decision—one month after Royal Assent of the Bill—on whether the MoD is going to accept or reject the recommendations in the Henriques review report for the establishment of a defence representation unit and, if the recommendations are accepted, requires the Minister to lay a report before Parliament, setting out a plan and timeline for establishing the unit by July 2022.

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[Baroness Smith of Newnham (LD)]

My Lords, I support the amendment in the name of the noble Lord, Lord Coaker, which I and the noble Baroness, Lady Bennett of Manor Castle, have signed.

In the first group of amendments this evening, the noble Baroness, Lady Bennett, pointed out that she was the only female Peer speaking in that group. At that stage, I did not speak, not because I did not think it was important to speak on service justice but because we felt from these Benches that it was appropriate to have one person speaking, and that person was my noble friend Lord Thomas of Gresford. He is rather more expert on the military justice side of things than I am. I would like to add my support to tackling the range of issues that are faced by women in the military.

The noble Lord, Lord Coaker, pointed out that this is a probing amendment, but it is an important amendment because the report that was done for the House of Commons Defence Sub-Committee, brought forward by Sarah Atherton, was a very revealing one. I know that the Minister is aware of the report, not just from iterations in this Chamber but because, at some point during the Summer Recess, I happened to turn on “Woman’s Hour”, and I heard none other than the Minister and Sarah Atherton MP talking about the report.

These are issues of concern not only within the Armed Forces and the Palace of Westminster; they are issues that have traction much more broadly. They are important issues and, while it might not be necessary to include this amendment in the Bill, it is vital that the Government take notice of the issues that have been raised by serving female personnel and veterans.

As the noble Lord, Lord Coaker, pointed out, there is a set of issues that needs to be thought about. Bullying and harassment have no place in the Armed Forces. Some of the issues that have been revealed, as mentioned in the previous group of amendments by the noble and learned Lord, Lord Thomas of Cwmgiedd, are actually very damaging to public understanding of the Armed Forces. We need to be very careful to make sure that, if discipline is not maintained and there are issues affecting people in the Armed Forces—particularly women—they are looked into. If the Minister is not able to accept the language of this amendment, we would be grateful if she would explain a little bit more about what the Ministry of Defence is doing to help bring about behavioural change.

Statements from the Secretary of State might be of interest, but the current Secretary of State seems to talk to the media an awful lot. Sometimes it feels as if he is rather shooting from the hip. It would be nice to know that some of these comments are actually based on practice and ways of effecting change. Can the Minister give us some comfort in this regard?

[Baroness Goldie (Con)]

My Lords, I thank the noble Lord, Lord Coaker, for tabling this amendment. He is quite right: it raises issues that all of us care about very deeply, as the noble Baroness, Lady Smith, so eloquently described.

In essence, the amendment proposes a new clause requiring the Secretary of State to review whether an independent defence authority is desirable. It might be helpful to your Lordships if I try to set a little bit of context for this, and then try to address the specific questions that the noble Lord, Lord Coaker, and the noble Baroness, Lady Smith, raised.

First, we believe that the vision of a central defence authority, as it was foreseen in the Wigston review, is being delivered through the diversity and inclusion directorate. The noble Lord, Lord Coaker, specifically raised this point, so let me try to address these issues and reassure him. Eleven out of the 12 Wigston recommendations relating to the authority have now been achieved. They have been delivered. Your Lordships may remember that Danuta Gray was ordered to carry out a progress assessment one year after the Wigston review to see how it was getting on. She is independent of the MoD, and she concluded that a new diversity and inclusion directorate would, in effect, fulfil the functions of a central defence authority.

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[Lord Alton of Liverpool (CB)]

My Lords, we had a good debate earlier when my noble and gallant friend Lord Craig spoke to Amendment 4 tabled by the noble and learned Lord, Lord Mackay of Clashfern. There was a degree of unanimity around the House that this issue needed to be addressed. The Minister was good enough to say that, although she would not reply on Amendment 4 to the issue of Hong Kong ex-servicemen, when we reached this part of our proceedings on Amendment 26 she would be able to give us some reply. I rather hoped that might mean she wanted some space to try to digest some of the points that he and I tried to make earlier.

I particularly reinforce what the noble Baroness, Lady Smith of Newnham, said about the relationship between the MoD and the Home Office on this. If nothing else comes of this evening, will the Minister agree to facilitate a meeting involving perhaps those who have participated in this debate but also her noble friend Lady Williams of Trafford, at which we might try to make some progress on these two questions—one about citizenship and the other about the specific position of the Hong Kong ex-servicemen?

If the Minister has the figures, I wonder if she could share with the House the number of people we are talking about who fall into the category—whether the figures I gave earlier are correct or not. Sometimes it is what you do in small things that matters most, and we are talking about very small numbers of people. It was a point alluded to my noble friend Lord Brookeborough a few moments ago, that when you compare this very small group with the number of people who try to arrive in the United Kingdom—some illegally—it is how we behave towards them that will matter.

This brought me back briefly to debates in another place in 1983, when I spoke on the nationality Act about citizenship and the effects it would have on people in Hong Kong. Sadly, many of the things predicted during that debate have come to pass. The trajectory we all hoped that Hong Kong might be on post 1997 —“one country, two systems”, and an honouring of the difference between Hong Kong and mainland China —has clearly not happened. That has left people in a precarious position, and none more so than those who served the Crown. I reinforce the point I made earlier: these people’s lives are clearly now in danger, and we have a duty to do something about that. It is a point that my noble friend Lord Dannatt made as well.

That is all I wanted to say. I know I had the chance to speak earlier on. I hope the Minister will think about how she can, in a practical way, take these two relatively small questions forward and see if we can get some justice for those involved.

[Baroness Goldie (Con)]

My Lords, I thank the noble Lord, Lord Coaker, for tabling this amendment and the noble Lord, Lord Tunnicliffe, for his remarks in support of it. I am also grateful to those who have contributed to the debate, not least the noble and gallant Lord, Lord Craig of Radley, the noble Baroness, Lady Smith, the noble Viscount, Lord Brookeborough, and the noble Lords, Lord Dannatt and Lord Alton.

I think your Lordships will understand that I am at the Dispatch Box as MoD Minister. I cannot speak on behalf of the FCDO or the Home Office, but let me try and address some of the more technical issues to at least give context to what the amendment seeks to achieve. The first thing I want to say is that the Government highly value the service of all members of our Armed Forces, including: our Commonwealth nationals, our Gurkhas in Nepal, who have a long and distinguished history of service to the UK both here and overseas; and former British Hong Kong service personnel.

Before I address the detail of the proposed new clauses, I would like to say a few words about the process for setting immigration fees. Application fees for immigration and nationality applications have been charged for a number of years. They are charged under powers set out under Section 68 of the Immigration Act 2014. They play a vital role in our country’s ability to run a sustainable borders and immigration system, reducing the burden that falls on taxpayers.

Sitting beneath the Immigration Act are a fees order and fees regulations, all of which are scrutinised by both Houses before they come into effect; there is a democratic prism to all this. This system ensures checks and balances, and it seeks to maintain the coherence of the immigration fees framework as set out in legislation. If we were to remove these fees during the passage of this Bill, as the noble Lord, Lord Coaker, suggests in his amendment, it would undermine the existing legal framework for fees, without proper consideration for either the sustainability of the system or fairness to the UK taxpayer. It would also reduce clarity in the fees structure by creating an alternative mechanism for controlling fees which sits outside the immigration fees regime.

When non-UK service personnel, including Commonwealth citizens and Gurkhas from Nepal, enlist in the regular Armed Forces, they are granted exemption from immigration control status for the duration of their service. That is to allow them to come and go without restriction. They are free from any requirements to make visa applications or pay any fees while they serve, and that is unlike almost every other category of migrant coming to work in the UK. Those who have served at least four years or been medically discharged as a result of service can choose to settle in the UK after their service and pay the relevant fee.

As a number of your Lordships are aware, the time before discharge that 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, knowledge of the English language or knowledge of life in the UK, again putting them in a favourable position compared with others who seek to settle here. We recognise, however, that settlement fees may place a financial burden on non-UK serving personnel wishing to remain in the UK after their discharge, and we recognise the strength of feeling of parliamentarians, service charities and the public on this issue.

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[Lord Alton of Liverpool (CB)]

Can we press the Minister further on this point about the link between the MoD and the Home Office? She is of course right, but she has just said that it is a continuing process of consultation. The Home Office has been saying that for year after year, as referred to by my noble and gallant friend in his remarks earlier. When does the Minister think that that will conclude, and will she respond to the point made by the noble Baroness, Lady Smith, and me about the importance of facilitating a meeting between the Home Office, the MoD and noble Lords who are involved and interested in this issue?

[Baroness Goldie (Con)]

I would say to the noble Lord, Lord Alton, that I understand the strength of feelings so ably articulated by him, the noble Lord, Lord Coaker, the noble and gallant Lord, Lord Craig of Radley, the noble Lord, Lord Dannatt, the noble Baroness, Lady Smith, and the noble Viscount, Lord Brookeborough. I understand the strength of feeling expressed in the House in relation to individuals who have served this country. But, as I have explained, there is an existing legal framework in place for immigration fees which already enables proper consideration to be given by government and Parliament to the full range of issues in setting those fees.

The issues raised by this amendment are already subject to a consultation that is entering its final stages. I can tell the noble Lord, Lord Alton, that I have no magic wand that I can wave, and that this is another department’s responsibility. I can also confirm that the specific issues around Hong Kong are also under consideration.

[Viscount Brookeborough (CB)]

The Minister talks about consultation. I ask her to let us know who has been consulted and how many of the cohort group have been. Clearly, it will be very wide of the mark if none of them has been spoken to. So how many people, who, when, and has it involved the cohort?

[Baroness Goldie (Con)]

All I can do is undertake to write to the noble Viscount, because I do not have the specific detail in front of me. The consultation process ran and it was a joint process, but I will find out the specific information that he requested and write to him.

The noble Lord, Lord Coaker, helpfully indicated that this is a probing amendment, and I am very grateful to him for proposing not to press this to a Division. As I said earlier, I sense the strength of feeling, and Hansard will be testament to that strength of feeling. I give the noble Lord, Lord Alton, the assurance that through the conduit of the MoD I will indicate the desire of your Lordships for some clarity in seeing how these matters are to unfold. Therefore, while I cannot give the answers that noble Lords are no doubt impatient to receive—I sympathise with their impatience but think they will understand that I am in an impossible position in terms of providing the answers—I certainly undertake to use my offices as a Minister in MoD to see whether I can do anything to facilitate the provision of information. In these circumstances, I hope the noble Lord will withdraw his amendment.

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[Baroness Smith of Newnham (LD)]

My Lords, I do not quite support this amendment but will speak in rather the same spirit as the noble Lord, Lord Coaker. From the Liberal Democrat Front Bench, in Committee, I also spoke against raising the age of recruitment, but of course that is not what this amendment seeks to do.

The debate has focused on three issues: first, the age of recruitment, which is not formally the subject of this amendment; secondly, the question of the minimum term for service, which is, officially, what is in the amendment; and, thirdly, the issue of Harrogate, which has been discussed at some length. The noble Lord, Lord Browne of Ladyton, suggested that everyone spoke in laudatory terms about Harrogate in Committee; while the noble Lord, Lord Lancaster, spoke in laudatory terms, I think the rest of us were very much looking forward to the Minister facilitating a visit, so that we could understand what happened at Harrogate a little better—although I think the noble Lord, Lord Coaker, might have visited.

There is clearly a need to separate three different issues here, one of which is how the current facility works. The sorts of cases that the noble Lord, Lord Browne of Ladyton, mentioned clearly need to be looked into. It would be very helpful if the Minister could explain what the MoD is doing to investigate the sorts of cases that are currently hitting the headlines and reassure the House that appropriate action is being taken. That needs to be separate from whether or not we believe that the age of recruitment is actually right.

However, it is important to consider the age of recruitment and what happens to 16 and 17 year-olds when we look at what is in this amendment. It may be only a probing amendment, but it is nevertheless one where we need to look at what is actually understood by “service”. It is very clear that there is a difference in the language that is used by those who oppose recruitment at 16 and the arguments against child soldiers, for example, which seems to suggest that, somehow, 16 year- olds are being allowed to go off to the front line—they are not; you cannot go to the front line until you are 18, and then only if you have been trained.

What do the Government understand by “service”? Is it that 16 and 17 year-olds can be recruited and trained, but that somehow that does not count as service for the purposes of the minimum service requirement? If that is the case, could the Government make it very clear? If Harrogate, or whatever an appropriate equivalent might be, is about training, is it seen as an appropriate alternative to continuing education in school or a further education college, which, as some of us believe and as the noble Lord, Lord Coaker, argued in Committee, can be very relevant for some 16 and 17 year-olds who want not to go back to mainstream education but to do something different? Clearly, if that is the case, what is happening for 16 and 17 year-olds needs to be appropriate.

All of us must surely agree with the comment of the noble Lord, Lord Russell, that we need to craft a recruitment policy fit for the 21st century and not the 19th century. Could the Minister reassure us that what is available is fit for the 21st century, and that what is happening at Harrogate has been investigated and we do not have anything to worry about? Can she explain to us the Government’s understanding of service that is accrued from the age of 16 to 18, inclusive?

[Baroness Goldie (Con)]

My Lords, I know that you are all waiting agog for my response to what has been a wide-ranging and very interesting debate, but I am required to make a correction in relation to our previous debate on Amendment 26. I have been informed that the process that I described is slightly different. The precise fees payable are made through both the affirmative and the negative resolution procedure, which is different from what I may have read out from the speaking notes. I am pleased to put that correction on the record.

I thank the noble Lord, Lord Russell, for raising this issue, which is important and which we are all interested in. Clearly, some of your Lordships have concerns about it. As I said, it led to a very interesting debate. The essence of the amendment is that your Lordships are concerned that those who join the Armed Forces before their 18th birthday are obliged to serve longer than those who join after it.

Obviously, this is a bit of reprise of what I said in Committee, but I clarify that this is a matter not of length of service but of discharge. The statutory “discharge as of right” rules allow all new recruits, regardless of age, to discharge within their first three to six months of service, depending on their service, if they decide that the Armed Forces is not a career for them. In addition, 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, all service personnel under the age of 18 have a statutory right to leave the Armed Forces up until their 18th birthday, without the liability to serve in the reserves, which would be the obligation on an adult aged over 18 who was leaving the services.

The noble Lord, Lord Russell, referred to a specific example, and I confess that I was not familiar with it. I understood that he referred to the RAF, but if he would care to write to me with the details, I will certainly look at that in detail.

The noble Lord, Lord Russell, was specifically concerned about the perceived unfairness to the under-18 group who serve longer than a new start of 18 years or over if they pursue a career in the Armed Forces. The noble Lord, Lord Browne, alluded to some extent to the letter I sent him in an endeavour to explain what these arrangements are about and the rationale behind them. I reiterate for the benefit of the Chamber that the policies in place covering the recruitment of young people below the age of 18 are designed carefully to be lawful, fair and fit for purpose, both for the individual and the service they volunteer to join.

The primary reason for the minimum period of service in the Army for those under 18 is that the Army must ensure that it maintains the right workforce levels to enable it to deploy personnel over the age of 18 on operations at home and abroad. Recruits under the age of 18 are not fully deployable on operations, and their notice period therefore runs from the point at which they become fully deployable alongside those who enlist after their 18th birthday. This minimum period of service for those under 18 also allows the Armed Forces to provide our young people with world-class training. It develops well-rounded junior personnel, both morally and conceptually, and, in turn, all this quite simply brings huge benefit to the individual, the Armed Forces and wider society. I feel that is positive and something that we should celebrate.

I acknowledge the recent reports of entirely unacceptable behaviour at the foundation college resulting in the conviction of an instructor, and the noble Lords, Lord Russell, Lord Browne and Lord Coaker, and the noble Baroness, Lady Smith, referred to this. That is something we all deplore. It indicates to me that there is a system which works: that if somebody behaves absolutely unacceptably in a criminal fashion, they are dealt with within the system. I do not think we should be complacent about this in any way. I was as disturbed to read that report as anyone, but it suggested to me that there are systems in place.

I think the noble Baroness, Lady Smith, particularly sought reassurance about this. I want to reassure her and your Lordships that for under-18s any reports of bullying are taken extremely seriously, and tough action is taken against those who fall short of the Army’s high standards. The duty of care for all our recruits, particularly those aged under 18, is of the utmost importance, and we recognise the need to treat under-18s differently.

The Armed Forces foundation college—

[Lord Browne of Ladyton (Lab)]

I am very much obliged to the noble Baroness for giving way; she is very generous. However, at this point I think it is appropriate to ask her specifically if it is true that there were 60 complaints between 2014 and 2020 from parents or trainees about bullying behaviour at AFC Harrogate. Is that true?

[Baroness Goldie (Con)]

I do not have that information before me. I will certainly undertake to investigate, and I will write to the noble Lord with whatever I find out.

[Lord Browne of Ladyton (Lab)]

With respect, if it is true, will the noble Baroness also express in that letter whether she is concerned that that does not appear to have been reflected in the inspections of AFC Harrogate? If it had been, I am sure the noble Baroness would have shared that when we discussed this in Committee.

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[Baroness Goldie (Con)]

As I said to the noble Lord, all I can offer to do is to look at Hansard and the detail of what he said, and to check that out and see what I can ascertain. I will undertake to do that and write to him, and I will offer any comment that seems appropriate depending on what I find out.

What I was going on to say, particularly in response to the point raised by the noble Baroness, Lady Smith, is that—as the noble Lord, Lord Browne, has indicated—the foundation college, alongside all phase 1 and phase 2 training organisations, is subject to Ofsted inspection on a routine basis. Ofsted is an independent inspectorate. I and the Government have no control over what it says and does; it is for Ofsted to enter establishments, ask its questions, make its inspections and come to its conclusions.

What I can say to the noble Baroness is that the college was independently inspected by Ofsted in May 2021 as part of the 2020-21 inspection cycle into welfare and duty of care in Armed Forces initial training. Harrogate was awarded an overall grade of outstanding by Ofsted at the inspection, which followed the outstanding grade it received in October 2017. That grade was awarded due to the excellent standard of provision of duty of care and welfare encountered by Ofsted at the college.

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Knowing the Minister in the way that I do, I know she will go back and ask this. But the system needs to respond to us, to this Chamber, to this debate and to all the various points that have been made; that is what democracy is about. It is about the Chamber that represents the people speaking up for the people to the system and demanding that it change and respond to them. That is what we expect from this debate. I thank my noble friend Lord Browne again for putting the amendment and for his continued efforts with respect to this really important issue.

[Baroness Goldie (Con)]

My Lords, the noble Lord, Lord Coaker, is right: we have kept until the end of the day—unfortunately when few people are around—one of the best debates we have had during this stage of the Bill. I thank the noble Lords, Lord Browne and Lord Clement-Jones, and the noble and gallant Lord, Lord Craig, for tabling this amendment. I know that their interest is informed and determined, and I can tell them that it is welcome. Having debated this issue with them now on several occasions, I understand the depth of their concern in this important area. I am grateful to them for the way they have engaged with me and officials and I look forward to further engagement, for we will surely debate these issues in this House for many years to come. I say to the noble Lord, Lord Coaker, that any Government would expect to be accountable to Parliament in respect of matters of such significance.

As with so many issues relating to the rapid march of new technology, this is both complex and pressing. The Government continue to welcome the challenge and scrutiny being brought to this question, and, as I noted on previous engagements, I do not dispute the noble Lords’ analysis of the importance of proper legal consideration of novel technologies. Indeed, I attempted to access the podcast to which the noble Lord, Lord Browne, referred. I do not know whether the Chamber will be delighted or disappointed to learn that, such is the security of my MoD computer, I could not get anywhere near it, so I have still to enjoy the benefit of listening to that podcast, which I intend to do.

As I said, I know that the amendment is extremely well intended and timely, but I hope to persuade your Lordships that the proposed review is not the right means of addressing these issues. However, I assure your Lordships that the department is alert to these questions and has been working extensively on them over the course of the last 18 months. Indeed, the noble Lords, Lord Browne and Lord Clement-Jones, have been engaging with officials in the department. They might have a better understanding than most of what is taking place.

Setting a requirement for a review in law would actually risk slowing down the work needed to develop the policy, frameworks and processes needed to operate AI-enabled systems responsibly, and to address the legal risks that service personnel might otherwise face. That is an issue of profound importance and one in which the noble and gallant Lord, Lord Craig of Radley, is rightly interested.

Noble Lords will understand that I cannot set out details of the department’s position until these have been finalised, but I can assure your Lordships that work to set a clear direction of travel for defence AI, underpinned by proper policy and governance frameworks, has reached an advanced stage. The noble Lord, Lord Browne, will I am sure have a sense of where that is headed. Key to it is the defence AI strategy, which we hope to publish in early course, along with details of the approaches we will use when adopting and using AI.

These commitments, which are included in the National AI Strategy, reflect 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 vital issues that attract a great deal of interest and we need to be as transparent and engaged as possible. I wish specifically to reassure the noble Lord, Lord Coaker, about that.

I know from their contributions, to which I listened, that noble Lords will understand that this AI strategy cannot be the last word on the subject, but I hope that, when we do publish details, your Lordships will be substantially reassured that we are on the right track, and that substantial effort and engagement will follow. There is no end to the march of technology—that is one of the reasons why we have questioned the utility of a snapshot review process—nor will there be an end to our challenge of ensuring that we do the right thing with that technology, especially where grave matters of life and death and national security are concerned.

As we undertake this work, one of our top priorities must be to develop the terminology and vocabulary necessary to ensure we illuminate, clarify and improve understanding and awareness, and to find the right way to debate these issues. This is by no means a comment on any of the discussions that we have engaged on in this House; it is more a general observation on the difficulty of debating concepts such as lethal autonomous weapon systems when there is no definition and different views are not always clearly differentiated.

Are we concerned that AI could usher in a new era of weapons which, whether controlled by a human or not, could result in devastation and atrocities? Or are we concerned at the ethical implications of a machine, rather than a human, taking decisions which result in the death of even a single human? The answer is both, but the discussion is not best served when it jumps between such disparate topics.

The MoD has to keep pace with the threats that confront this country and consider how to deal with them. When I spoke in Grand Committee, I commented, in response to the noble Baroness, Lady Smith, that context-appropriate human involvement could mean some form of real-time human supervision, which might be called “human in the loop”, or control exercised through the setting of a system’s operational parameters. The noble Lord, Lord Browne, correctly observed that some might call the latter a fully autonomous weapon. But I wonder whether they would use that term, or perhaps more importantly be concerned, if the use case they had in mind was a system mounted on a Royal Navy vessel to defend against hypersonic threats. Such a system might well be lethal—that is, capable of taking human life—but in many ways it would not be considered fully autonomous, even if it detected the threat and opened fire faster than a human could react.

We must be careful to avoid generalisations in this debate. We in the Ministry of Defence have a responsibility to ensure that our position is properly communicated. That is a responsibility we acknowledge, and I say again to the noble Lord, Lord Coaker, that it is a responsibility of which we are cognisant and about which we will be vigilant.

The crucial point, which is also the reason why this amendment is unnecessary, is that all new military capabilities are subject to a rigorous review process for compliance with international humanitarian law. Any determination as to the exercising of context-appropriate human involvement will similarly be done carefully on a specific case-by-case basis. 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. We are committed to ensuring that our Armed Forces personnel have the best possible care and protection, including protection against spurious legal challenges. I think I said in Committee that, earlier this year, we acted to bolster this protection in historical cases through the overseas operations Act.

This is a fascinating and complex area. I hope my remarks provide reassurance to your Lordships 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 its approach appropriately to Parliament and the public. On this basis, I suggest that this amendment is not needed. The noble Lord, Lord Browne, has been kind enough to indicate that he will not press it, but I hope that he and other Members of this House will remain engaged with us in the MoD, as we will remain engaged with our international partners and allies, and our own public and civil society, so that we can make rapid progress on these important and challenging questions.

Armed Forces Bill

Baroness Goldie Excerpts

Wednesday 17th November 2021 Lords Chamber

Moved by

[Baroness Goldie]

That the amendments for the Report stage be marshalled and considered in the following order:

Clauses 1 and 2, Schedule 1, Clauses 3 to 9, Schedule 2, Clause 10, Schedule 3, Clause 11, Schedule 4, Clause 12, Schedule 5, Clauses 13 to 16, Schedule 6, Clauses 17 to 27, Title.

Motion agreed.

Armed Forces Bill

Baroness Goldie Excerpts

Committee stage
Monday 8th November 2021 Grand Committee

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

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 (Lab)]

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 (CB)]

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 (Con)]

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 (LD)]

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 (Con)]

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 (Con)]

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 (Con)]

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 (Lab)]

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 (Con)]

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 (Lab)]

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 (Lab)]

I apologise, but I had not finished—it was a dramatic pregnant pause that misled the noble Baroness.

[Baroness Goldie (Con)]

Your preface is a long one.

[Lord Browne of Ladyton (Lab)]

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 (Lab)]

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 (Con)]

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 (Lab)]

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 (Con)]

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 (Lab)]

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

[Baroness Goldie]

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

[Baroness Goldie]

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.