Armed Forces: Resilience

Lord Stirrup Excerpts

Thursday 26th January 2023 Lords Chamber

[Lord Stirrup (CB)]

My Lords, I am most grateful to the noble Lord, Lord Robathan, for securing this important debate at such a crucial time for the defence of our country. I, too, congratulate the noble Lord, Lord Hintze, on an excellent maiden speech, and I greatly look forward to the contribution of the noble and gallant Lord, Lord Peach, who has much wisdom and experience to contribute on this subject and to the House’s wider deliberations.

Resilience is a crucial issue for any military organisation, but for ours more than most—and for ours in particular. It is not our policy, on the whole, to start wars; we are usually on the receiving end of them, which means that we are generally at a disadvantage at the beginning of any conflict. An aggressor has the advantage of choosing the time, place and manner of military action, and will very often seek to take advantage of an opponent’s weaknesses. There will be weaknesses, since no nation’s military can be strong everywhere, at all times. That means that we need the capacity to absorb the first blow, to roll with it, recover our balance, adapt to the circumstances and demands of the particular conflict, and then to seize and exploit the initiative. Even the briefest study of military history will serve to illustrate the point.

What gives us the necessary resilience, and what are the particular capabilities and characteristics that enable us to overcome disadvantage and get on to the front foot? The most commonly heard answer to this question and one that we have certainly heard today is the size of our Armed Forces—the numbers of ships, troops and aircraft. Indeed, size does matter. Losses are often highest in the early stages of a conflict. Start with too little, and there may be insufficient capability left on which to base a recovery. The noble Lord, Lord West, may have a view on that from his own experience.

One argument sometimes put forward in defence of reduced numbers is that we do not intend to fight in high-intensity conflict on our own, and that it is our membership of alliances such as NATO that creates the necessary scale. To an extent that is true, but only to an extent. The argument itself can pose dangers. If too many members of an alliance continue to reduce force levels on the basis that contributions of others will create the necessary mass, that mass will never be achieved. That has certainly been the situation in NATO for many years now.

We need larger Armed Forces. Numbers have been progressively reduced by successive Governments on the basis of cost saving, with no underpinning strategic rationale. In the early 1990s, for example, the Government insisted on defence cuts as a post-Cold War peace dividend, despite the fact that we had just been involved in a conflict that had stretched our resources to the utmost and had nothing to do with the Soviet Union. It is worth remembering that the only way that we were able to field a division in the first Gulf War was by cannibalising just about the whole of the British Army of the Rhine—and all three services are much smaller now.

Inadequate force levels are not just a problem in high-intensity conflict, though. The Government’s appetite for the employment of the military instrument frequently exceeds their willingness to sustain appropriate capacity. At the moment, for example, Typhoon squadrons are spending long periods deployed on operational duty in response to the dangerous situation in Ukraine. Of course, it is absolutely right that they should do so, but the relatively small size of the force means that people are frequently away from their families, they are unable to train effectively when they are at home base, and morale is suffering as a consequence. Poor morale leads to poor retention, which simply exacerbates the problem.

Numbers of troops and of platforms are by no means the whole story. Soldiers in battalions, sailors in ships and air crew in aircraft are of little use if they do not have the systems that allow them to succeed in modern combat or the weapons with which to fight. The Defence Secretary has confirmed what we have all known for a long time: that the Army cannot field a fighting division. But this shortcoming is not a consequence of too few soldiers; it is because they do not have the necessary communications, logistics support, armoured mobility, weapons systems or munitions. The same is true of the Royal Navy and the Royal Air Force. Both services can field some remarkable capabilities, but not in the number required or with the necessary sustainability. One of the earliest lessons of the war in Ukraine was the reminder—for those who needed it—of the appalling rate of consumption of weapons in such conflict.

I will not give comfort to potential adversaries by detailing the UK’s specific weaknesses here. The noble Baroness the Minister knows full well what they are. I will simply note that, in evidence to your Lordships’ International Relations and Defence Committee at the end of last year, the Defence Secretary confirmed that the UK had for far too long “hollowed out”—his words—our stocks of weapons and munitions. He has publicly repeated this statement in just the past few days. So, while we certainly need to expand the size of our Armed Forces, our immediate and urgent priority is to ensure that our current force structure can fight effectively and enduringly in high-intensity conflict. At the moment, it cannot.

This brings me to another dimension of the problem. Additional defence expenditure is of course required to bring weapons stocks not just to where they before we—rightly—donated a significant portion of them to Ukraine, but to where they should have been in the first place. We need suppliers, however, with whom we can contract for such purchases. The kinds of complex weapons that have been so successful in Ukraine cannot be produced overnight, and particularly not in the numbers that we and our allies need. That will require industrial capacity that does not exist at the moment.

We must expand our idea of resilience beyond the military community to encompass the industrial base that supports it. Such industrial capacity depends on private sector investment in the appropriate plant and personnel. But this will be forthcoming only if the investors see a reasonable prospect of a sustained return, which will in turn depend upon a fairly steady drumbeat of orders from our and other Governments. All too often, however, the procurement tap is turned on and off erratically in the face of short-term budgetary pressures. This is not the way to encourage long-term investment in industrial capacity. There is a need for a much more strategic approach to defence procurement if we are to sustain the industrial base necessary to national resilience.

Such an approach needs to address issues of culture as well as quantity. May I recommend the recently published report from your Lordships’ International Relations and Defence Committee into the extent—or otherwise—that defence policy has moved from aspiration to reality? One of the report’s more concerning findings is that high-technology companies consider the Ministry of Defence to be one of the world’s worst customers. They say that its institutional resistance to innovative ideas, its low appetite for risk, its unwillingness to invest in experimentation and the subsequent commercialisation of novel approaches all conspire to deter high-tech companies from working with the MoD. But we have seen in Ukraine how an imaginative fusion of civilian and military approaches and technology can produce startling battlefield successes.

War and the threat of defeat can of course force co-operation between apparently strange bedfellows, but we cannot afford to wait until we are embroiled in an actual conflict before we face up to this challenge. We need a change of culture in our day-to-day processes, but the Ministry of Defence cannot do this alone. The Treasury, too, needs to adopt a much more entrepreneurial and co-operative approach to innovation, risk and long-term investment.

I have tried this afternoon to demonstrate that defence resilience is a complex issue and not just a question of numbers, important though they are. But underpinning all this is the inescapable question of money; 2% of GDP is simply inadequate to fund the aspirations set out in last year’s independent review and defence Command Paper. Both of those documents are being reviewed, but the reviews are taking place in the face of an even more dangerous world, so the equation will only have become worse. It is well past time that the Government faced up to their responsibilities in this regard. Fine words butter no parsnips—particularly when we cannot afford the parsnips in the first place.

Defence: Type 45 Destroyers

Lord Stirrup Excerpts

Monday 10th October 2022 Lords Chamber

[Baroness Goldie (Con)]

Well, I do not completely recognise the figures that the noble Lord uses and he will know the constraint I am under in referring to specific operational activity. However, what I would say is that, as he will be aware, we always keep an eye on operational requirement, which is why we plan scheduled maintenance to make sure that we are always able to maintain the essential task that we require of the Navy.

I know that the noble Lord sometimes wears a mournful demeanour when asking me Questions at the Dispatch Box, but I think he will agree that the shipbuilding programme for the Royal Navy is very exciting. For the first time in 30 years, we are building two types of frigate simultaneously at UK yards.

[Lord Stirrup (CB)]

My Lords, the Type 45 is a crucial air defence platform for the protection of surface task forces, but ships are no use whatever without weapons. So how long would the Type 45s’ current stock of surface-to-air missiles be expected to last in a high-intensity conflict?

[Baroness Goldie (Con)]

I would be reluctant to speculate on a specific answer to the noble and gallant Lord at the Dispatch Box; I need to go away and make some inquiries and I will endeavour to respond to him as best as I can.

Royal Navy: F35B

Lord Stirrup Excerpts

Thursday 8th September 2022 Lords Chamber

[Baroness Goldie (Con)]

On the HMS “Prince of Wales”, that has of course been a regrettable development. I can confirm that the “Prince of Wales” is alongside in Portsmouth and will proceed to Rosyth dry dock in due course. In the meantime, HMS “Queen Elizabeth” has departed to carry out duties with the United States. On the broader question of the fleet, the noble Baroness will be aware that the fleet has been a very important supporter of the carrier project. Many of our ships were in attendance discharging duties. Most recently, there have been ships in the Mediterranean escorting Russian ships. I therefore reassure your Lordships that the fleet is in a good state. What is exciting is the planned development of the fleet, not just with Type 26 and Type 31 but now with Type 32 and Type 83 coming into scope.

[Lord Stirrup (CB)]

My Lords, the noble Baroness’s previous answer focused on the size of one carrier air group on one carrier. Even when Lightning numbers have been increased, the UK will still have only one air group for two carriers—an average of half an air group per carrier. The United States has an average of over one-and-a-half air groups per carrier, because it recognises that only this will enable it to maintain operational tempo. The Government have shown great ambition for deployments of the carrier and carrier air groups; will they recognise that if they are to sustain this ambition into the future, they need to provide the necessary resources to back it up?

[Baroness Goldie (Con)]

There are various situations where the United States and the United Kingdom approach differently configurations of capability. The noble and gallant Lord will be aware of the planned increase of the F35B flight support in 2025, when it will go from 26 at the moment up to 48. The ultimate plan is to increase it to 74. That is exciting and should reassure noble Lords that there is very robust capability.

Afghanistan: British Special Forces

Lord Stirrup Excerpts

Thursday 14th July 2022 Lords Chamber

[Baroness Goldie (Con)]

I think we all understand that journalism has a role in a democratic society, and journalists have a job to do and documentary producers seek to discharge that role. What I think is reprehensible is—in discharging that role without producing substantive evidence or explaining why that evidence has never been investigated before—to proceed to traduce reputations and, as I say, tarnish an honourable military force of which we are extremely proud, the British Army, in which the overwhelming majority of soldiers are upstanding, competent and professional individuals who abide by the law.

[Lord Stirrup (CB)]

My Lords, does the Minister accept that there are two issues involved here, legal and reputational? In law, people are innocent until they are proved guilty, but reputations can be besmirched by programmes such as “Panorama” even if there is insufficient evidence to bring a legal case. If there is evidence then quite clearly it needs to be pursued vigorously, but, if there is not, does the Minister accept that it would be insufficient for the MoD simply to say, “There is insufficient evidence to bring a criminal case”? It will have to adopt a more proactive approach to demonstrate to the British public that their confidence in the Special Forces is not misplaced and that proper procedures were followed.

[Baroness Goldie (Con)]

I think we all understand the noble and gallant Lord’s interests in this with great sympathy. He will understand why I have to be generic in my references. We are actively seeking that new evidence. If it can be produced, action will be taken. There may then be the broader issue, if no new evidence can be produced, of what constitutes responsible journalism and what are the unacceptable consequences of irresponsible journalism.

Ukraine: Defence in a Competitive Age

Lord Stirrup Excerpts

Thursday 7th April 2022 Lords Chamber

[Baroness Goldie (Con)]

The MoD constantly reviews our obligations—both our primary responsibility to defend the nation and our responsibility to contribute to global security with our global partners, whether in NATO or elsewhere. We therefore constantly review what we need to achieve and discharge that role. We constantly assess what we can donate; I thank the noble Lord for his helpful comments, and know he will be aware of the generous nature of that donation, recognised not just within the United Kingdom but by Ukraine. On payment, when we come to replenish stocks, which will be necessary due to our gifts of equipment to Ukraine, that will be dealt with by the Treasury special reserve.

[Lord Stirrup (CB)]

My Lords, the Minister will be aware that your Lordships’ International Relations and Defence Committee has just started an inquiry into last year’s defence Command Paper. One of the issues that it will seek to test is the proposition that structure can be replaced by solutions based on science and technology. Can the Minister assure us that, when departmental representatives come before the committee, they will be able to set out a clear strategy, explaining how this can be done? I also ask the Minister whether it would not be appropriate for the Government to be slightly less self-congratulatory about the recent increases in defence expenditure, welcome though they are, since they have merely repaired part of the damage that was done in 2010 and subsequently, when our defence expenditure was 2.5% of GDP?

[Baroness Goldie (Con)]

I did not intend to sound self-congratulatory; I was merely pointing out the facts, which are a fairly stark improvement, as the noble and gallant Lord will be aware, on what has happened in previous years, under different Governments. On his point about the Command Paper and its relevance and fitness for purpose, I argue that it outlines a very comprehensive vision to reform and renew our Armed Forces for an age of global and systemic competition, dealing with threats and situations that are increasingly new to us. I welcome the noble and gallant Lord’s committee carrying out its analysis, and I am sure that, when representatives from the MoD appear before it as witnesses, they will give of their best, as usual, and endeavour to inform and assist it in its investigation.

Ukraine: Lethal Weapons

Lord Stirrup Excerpts

Tuesday 5th April 2022 Lords Chamber

[Baroness Goldie (Con)]

I referred earlier to the second international donor conference held on 31 March. At that conference, the international community committed to widening its package of military support for Ukraine. This included exploring new ways of sustaining the armed forces of Ukraine over the longer term, including the provision of increasingly capable air and coastal defence systems, artillery and counter-battery capabilities, armoured vehicles and protected mobility, as well as wider training and logistical support. I hope that reassures the noble Lord that there is a coherent response.

[Lord Stirrup (CB)]

My Lords, have the Government made any assessment of the industrial capacity for the increased production of the kinds of modern weapons that are being employed in Ukraine and of the resilience of their associated supply chains, particularly for sophisticated electronic components?

Ukraine

Lord Stirrup Excerpts

Friday 25th February 2022 Lords Chamber

[Lord Stirrup (CB)]

My Lords, I start by adding my warm congratulations to my noble friend Lord Sedwill on his excellent and perceptive maiden speech, with which I entirely agree.

Russia’s invasion of Ukraine did not begin yesterday, but in 2014. The seizure of Crimea and the involvement of Russian forces in the Donbass region pointed clearly to Putin’s contempt for international law and national sovereignty. What a pity we did not respond sufficiently robustly then. This most recent escalation, in the face of all diplomatic attempts to avert it, has, I hope, laid to rest the lie that Putin is simply concerned about and reacting to the so-called threat from NATO. It has long been obvious for those with eyes to see or to read Putin’s own words that his objective is to return Ukraine to the status of a Russian fiefdom. Nor should we delude ourselves that he will stop with Ukraine: if he is successful there, he will turn his eyes to other countries that were once part of the Soviet empire. It is therefore crucial that he is prevented from gaining his objective in Ukraine.

The Ukrainian people are paying the price of Putin’s aggression and rightly have our sympathy. But let us also remember the poor Russian conscripts who are being made to shed their blood by the deranged actions of a gangster regime that plunders the resources of its country for personal benefit, mounts assassinations in other countries as well as its own, interferes in the democratic processes of other nations, and bullies, invades and kills its neighbours. Those parts of the international community that care about peace and freedom and stand for a rules-based order within which all can thrive can no longer ignore or excuse the threat that Putin poses to this continent.

So what is to be done? In the short term, we must of course impose robust, targeted and enduring sanctions that enjoy wide support in the international community, in Europe and beyond. That will not be easy. Such sanctions will harm those imposing them, some much more so than the UK. Mustering the necessary international resolve and endurance is likely to tax our diplomatic skills to the limit. Sanctions will not, however, be enough. Putin will fail in Ukraine only if the Ukrainian people continue to resist and engage him in an unconventional military campaign that is protracted and costly. This is their intention, but do they have the wherewithal? We cannot fight for them, but we can and should give them all the indirect military support we can to enable them to carry on the fight.

We must also learn the strategic lessons of this conflict. Not long ago, some observers were questioning the continued relevance of NATO. In part, this was because they saw future threats to the security of Europe as originating principally from outside the continent. Even the UK’s integrated review, while acknowledging the challenge still posed by Russia, indicated a tilt more towards the Asia-Pacific region. The peace and security of our own continent should always be our top priority. Even those who did not foresee a threat to European peace—and many of us did—should remember the unbounded capacity of the future to surprise us, usually in unpleasant ways. NATO remains the bedrock of European security and must be strengthened.

However, we have strategic weaknesses that must now be addressed urgently. Globalisation, for all its benefits, has brought with it significant vulnerabilities. The economic, commercial and societal dependencies that can result from such globalisation make it more difficult for us to respond appropriately to international crises when they involve nations on whom we rely for goods and services. It is neither possible nor desirable for us to turn back the clock completely in this regard, but we need to strike a much better balance between commercial benefits and national resilience.

The Prime Minister has spoken about the need for the West to wean itself off Russian oil and gas, and that is right. However, that scratches only the surface of the problem. What about the rare earth metals that are so important to modern technology? What about other resources on which UK industry relies, such as titanium for Rolls-Royce aero engines, 20% of which has been supplied by Russia?

This is not just about Russia. Putin is the source of the current crisis, but we are vulnerable in other parts of the world. If we are to stand up to China’s assault on the rules-based international order, as the integrated review claims we will, we cannot leave ourselves vulnerable to Chinese economic industrial or technological intimidation.

The immediate priority is to offer Ukraine all the support we can and to help mobilise international efforts in this regard. However, we must also learn the strategic lessons and ensure that we are better placed in future to stand up to threats to international peace and security.

Armed Forces Bill

Lord Stirrup Excerpts

2nd reading
Tuesday 7th September 2021 Lords Chamber

[Lord Stirrup (CB)]

My Lords, I too welcome the Bill, which, in addition to sustaining the legal basis for our Armed Forces, brings with it some worthwhile innovations. Inevitably, though, its provisions tend to raise as many questions as they answer. It is on some of these loose ends that I wish to concentrate today.

One of the most controversial aspects of the Government’s approach to the Bill has, as we have heard, been their rejection of the recommendation in the Lyons review that cases of murder, manslaughter and rape committed in the UK should be tried in civilian courts except as agreed by the Attorney-General. I accept that there may be valid reasons for the Government’s decision. The military justice system will continue to have responsibility for dealing with such offences involving service personnel outside the UK, but our military footprint abroad has been reduced significantly in recent years so such cases will probably occur infrequently.

The military justice system may find it very difficult to sustain the skills and experience necessary to carry out its responsibilities overseas if it is unable to prosecute domestic crimes of this nature. If it is to do so, however, it must be demonstrably comparable to the civilian process. There is at the moment a very serious issue of credibility, which must be addressed. Conviction rates in cases of rape brought before service courts are significantly lower than for similar crimes tried in civilian courts. Why? Supporters of the Lyons recommendation might point to fundamental deficiencies in the service justice system. I suspect that the Minister would reject such a proposition but, if so, she needs to set out credible reasons for the stark differences in outcome between the two systems. Perhaps she could take the opportunity to do so this afternoon.

The inclusion of OR7 ranks in the list of those eligible for appointment as lay members of a court martial takes us closer to the idea of a jury of one’s peers, although not all the way. It does, however, raise the question of rank gradient. There is a tendency in the military for juniors to defer to seniors even when wisdom does not necessarily lie with the greater rank. This was in the past a significant issue in aircraft cockpits—not just in the military, I might add—and a factor in a number of avoidable accidents. It took a dedicated programme of training and cultural change across the entire aviation community to address the problem. Does the Minister envisage the need for something similar for lay members of service courts?

My final points concern Clause 8, which places a duty on “specified persons and bodies” exercising certain functions to have “due regard” to the principles laid out in the Armed Forces covenant. I welcome the intent behind this clause. It certainly represents necessary progress but it leaves a number of unresolved issues. The relevant functions that fall within the ambit of the Bill are restricted to housing, healthcare and education. These are undoubtedly the functions about which service personnel, veterans and their families are most concerned but, as we have already heard today, they are by no means the only areas of difficulty.

My other concern relates to the legal implications of Clause 8. As far as I can see, there are none. It requires the relevant bodies to have “due regard” to the provisions of the Armed Forces covenant but it does not specify any outcomes. There is nothing that could be effectively challenged in law, nor are there any potential remedies for a failure to comply with the provisions. The alternative—to specify particular outcomes—is not viable. What outcomes would one specify? In any case, it must be for those most closely involved to determine priorities. Veterans and their families should not suffer from their service, but that does not automatically place their needs above those of others.

So how are we to ensure that the very welcome intent of Clause 8 is delivered in practice? We cannot just rely on veterans to raise concerns. What formal avenues will be open to them? With whom should they register those concerns, and what processes of investigation and judgment would this trigger? In any case, most of those most in need, particularly those suffering from mental illness, will be just those least able to deal with the pressures and demands of an uncertain appeal process. Balancing the need for flexibility and local decision-making with certainty in enforcement is a challenge, but it must be faced if Clause 8 is to function effectively. A comprehensive and proactive audit process would allow us to assess the practical implementation of the clause and to develop recommendations for both closing loopholes and tightening application. Does the Minister agree that this is necessary if the Government’s worthy aspirations are to be given practical effect?

Afghan Interpreters: UK Relocation

Lord Stirrup Excerpts

Tuesday 6th July 2021 Lords Chamber

[Baroness Goldie (Con)]

Yes, I can reassure my noble friend. The leasing of MoD houses to local authorities to assist the Afghan families is a short-term expediency until appropriate properties for longer-term resettlement can be found. From the point of view of the supply of service families accommodation to service families, there should be no effect because the houses that have been identified to local authorities for this provision are surplus to the MoD’s present requirement. They are excess stock that would otherwise have been disposed of and are not required in the short term.

[Lord Stirrup (CB)]

My Lords, the Ministry of Defence has, at least in recent years, been at pains to treat locally employed interpreters justly and with sympathy. It has become apparent, however, that since contracting out the provision of interpreting services the Government have found it increasingly difficult, if not impossible, to ensure the continuation of such treatment. Moral considerations aside, what impact does the Minister think this might have on the effective conduct of future land operations where we need local assistance in dangerous circumstances?

[Baroness Goldie (Con)]

The noble and gallant Lord makes an important point about seeking to retain the confidence of locally employed individuals whom we may seek to engage in any future global activity. It is very clear from what we are discussing this morning that the UK Government have stepped up to the plate and recognised the debt of gratitude we owe to these locally employed staff. The relocation and assistance policy, particularly as it is now being accelerated, is a reflection of the seriousness with which we take that duty.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Stirrup Excerpts

Report stage
Tuesday 13th April 2021 Lords Chamber

[Lord Stirrup (CB)]

My Lords, in speaking to this amendment, I start by saying that I accept a number of the arguments that the Government have advanced against it. I do not think that the Bill is intended to provide UK forces with a blank cheque for torture or genocide; nor do I consider that, as currently worded, it has that legal effect. Investigations into and prosecution of those suspected of such offences should and could be pursued even after the five-year limit, provided that the evidential case is sound. I am in no doubt that those involved in such decisions would consider the facts carefully and conscientiously before coming to a decision one way or the other.

I do not regard the exclusion of sexual offences, and not of torture or genocide, as attributing any hierarchy of seriousness to these crimes. I accept that in claims of torture or genocide, the admitted outcome—the death or wounding of individuals—might reasonably be the consequence of legal military action. Sexual assault, on the other hand, can never be the result of anything but a criminal act. There is a logic behind the distinction. Nor do I accept the argument that the Bill as worded would make our own military personnel more likely to be tortured themselves. During the first Gulf War, I commanded aircrew who were shot down, captured and tortured. The Iraqis did not have, nor did they require, the incentive and cover of this Bill for their actions. I seriously doubt that future captors of UK military personnel would be likely to say to themselves, “Well, I would not ordinarily have tortured these prisoners but, in view of the UK overseas operations Act, I now will.” Regimes that are going to torture captors will; those that are not, will not. I do accept, however, that this Bill might make it harder for us to protest such actions or subsequently to hold the perpetrators to account.

My concern about this part of the Bill has less to do with its legal intent and effect, and more to do with the perceptions it may create and the consequences of such perceptions. I have said that in my view, the Bill does not diminish the seriousness with which we view or treat torture or genocide, but it is clear that many people disagree, and that they will not be persuaded by any words of mine or of the Government. This is important. What people think about such matters is crucial, regardless of whether we regard their interpretation as correct. Reputations, national as well as personal, depend on perception as well as on fact, and the UK’s reputation in the international arena is not something to be taken lightly or to be hazarded without great cause.

One possible consequence of a diminished reputation for an unswerving opposition to torture or genocide could be the increased interest of the International Criminal Court in accusations against UK military personnel—an outcome that I would regard as disastrous. I have heard the arguments against this likelihood, and I am unconvinced by them. I have in the past heard similar arguments advanced about the negligible impact that human rights legislation would have on military operations, only to see those confidently expressed opinions proved dramatically wrong. The Government no doubt feel that they are on firm legal ground with regard to the International Criminal Court, but that view has yet to be tested. Meanwhile, risk must be measured as a combination of probability and consequence. Even if the chance of challenge by the ICC is not large, the severe damage it would cause demands that we do all we can to guard against it.

The risks that I have identified might nevertheless be borne if they were sufficiently outweighed by the advantages that Clause 6 offers, but I do not believe this to be the case. The underlying problems that need to be addressed are the protracted and repeated investigations of speculative and malicious claims, along with the extension of human rights legislation into areas for which it is ill-suited. The Bill, of necessity, comes at these issues obliquely and is therefore likely to be of limited value. I know that the Government believe that the measures proposed on prosecutions will have an impact on the timeliness of investigations. I hope they are right, but the potential benefit is not obviously overwhelming. So, while I support the Government’s aim, and while I understand the logic behind the drafting of Clause 6, I believe that the current wording poses risks that far outweigh the potential benefits. Unless I hear in this debate a far more compelling argument than has so far been made against it, I shall support Amendment 3.

[Lord Dubs (Lab) [V]]

My Lords, it is a pleasure to follow the noble and gallant Lord, Lord Stirrup, as well, indeed, as my noble friend Lady Kennedy in the arguments they have put forward. The House has enormous respect for the Minister. I share that respect but it is noticeable that, despite her arguments, she had no support in Committee. I looked at her closing arguments then and found this one:

“In the course of their duties on overseas operations, we expect our service personnel to undertake activities which are intrinsically violent in nature. They fight, they use force”.


That seemed to be the justification for this provision: that force has to be used. I do not believe that force is the same as torture. If there were to be confusion between the two, it would be up to the courts to make a decision. It would not be up to a government Minister to say whether an action was unacceptable or, indeed, appropriate for it to be excused altogether by the provisions of this Bill.

In her closing remarks—she was trying to be helpful—the Minister also said:

“I undertake to consider with care the arguments that have been advanced and to explore if there is any way by which we can assuage your Lordships’ concerns.”—[Official Report, 9 /3/21; cols. 1575-77.]


I am not sure that anything has happened about that commitment. I understand why Ministers make such commitments and why she did so; perhaps she was not comfortable with the Government’s whole argument. However, I am not clear what she has done to assuage our concerns; I do not believe she has.

As has been said before, the reputation of this country is at stake. One thing we surely value very much is our reputation for adhering to the rule of law—for having a proper system for considering it and, indeed, being implacable in our opposition to any breach of it. That reputation is surely worth preserving, yet it is now at stake. We deal all the time with countries that do not observe the rule of law, be it Hong Kong, China in respect of the Uighurs, or Myanmar in respect of the Rohingyas—or, indeed, of their own citizens. There are too many examples of the rule of law being breached; we can ill afford to join the ranks of countries that breach it. We have had severe warnings that we might find our service men and women up before the International Criminal Court—which would be mortifyingly embarrassing and absolutely appalling were it to happen.

I am a member of the Joint Committee on Human Rights, which made a detailed assessment of the Bill and its various provisions and produced a report. At paragraphs 63 and 64, the report says that

“we have significant concerns that the presumption against prosecution”

runs the risk of contravening

“the UK’s legal obligations under international humanitarian law (the law of armed conflict)”

and

“international human rights law ... It risks contravening the UK’s obligations under the UN Convention Against Torture, the Geneva Conventions, the Rome Statute and international customary law.”

The report goes on to say:

“At a minimum, the presumption against prosecution should be amended so that it does not apply to torture, war crimes, crimes against humanity or genocide.”


Nothing could be clearer than that.

We have also heard quoted today Michelle Bachelet, the UN High Commissioner for Human Rights. She said:

“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”


I can think of no clearer comments than those I have quoted. I fully support this amendment.

--- Later in debate ---

[Baroness Chakrabarti (Lab) [V]]

My Lords, I support these amendments, with a very strong preference for Amendments 7 and 8, although I understand that they will not be pressed; half a loaf is better than no bread. It is clear to me that a combination of rules and discretion is what the law is. This is the protection against arbitrary action, and I have heard no compelling argument whatever at any point in the proceedings relating to this legislation for limiting the discretion of the courts completely, particularly in the light of the sorts of cases described by my noble friend Lord Hendy.

However, I was interested in the newly expressed concerns of the noble Lord, Lord Faulks, about discrimination; his view of equal treatment under the law is novel to me. He seems to be concerned about discrimination in relation to a Bill, which he supports, that is inherently discriminatory. He is concerned about giving extra protection to a particular class of claimant—namely, veterans and personnel, who are supposed to be protected by this legislation. But he is not concerned, it would seem, about giving special protection to a class of defendants—the MoD, the Executive—which is the initiator of the legislation as well as the civil defendant. He is not concerned about giving special protection and limitations to criminal defendants in the military, but he is concerned to give the protection offered by Amendment 13 when it is not being offered to overseas civilians, yet he does not support Amendments 7 and 8. This is not levelling up; it is levelling down.

As I say, I would very much prefer Amendments 7 and 8 to be pressed, but in their absence I will support Amendment 13. The Government brought forward this legislation with a promise to give protection to service personnel and veterans but, instead, if they do not go along with at least Amendment 13, it will protect the Exchequer—the Ministry of Defence—from the very people that it claims to protect.

[Lord Stirrup (CB)]

My Lords, I will speak to Amendment 13, to which I have attached my name. Its purpose is to ensure that service personnel are not debarred by time from pursuing claims against the Government for harms suffered on overseas operations. It seems strange to me that a Bill with the avowed purpose of providing government reassurance to service personnel seems intent on preventing those very personnel from seeking redress from that same Government. This may not be the intention, but it is one of the potential consequences of the Bill as it is currently worded.

In responding to a similar amendment in Committee, the noble and learned Lord the Advocate-General for Scotland, argued against it because it would have very limited effect. At Second Reading, the Government said that some 94% of service personnel and veterans who brought claims relating to events in Iraq and Afghanistan had done so within six years. He later confirmed that this figure included those who had brought a claim within six years of the date of knowledge. My response is to repeat the question that I posed on that occasion, and which was never answered: are we to assume then that, had the proposed timescale been in effect, the Government believe that it would have been acceptable for the other 6% to lose the opportunity to pursue their cases?

--- Later in debate ---

[Baroness Chakrabarti (Lab) [V]]

My Lords, it is a privilege to follow the noble and gallant Lord, Lord Boyce, in support of the vital amendment tabled by the noble Lord, Lord Dannatt. It is vital because there does not seem to be anything quite like it on the statute book.

While the Bill, controversially, attempts to protect the MoD from civil suit and individual members of the Armed Forces and veterans from criminal prosecution, it does not provide actual support for them. It does not provide mental health support, legal support or anything else mentioned in the amendment of the noble Lord, Lord Dannatt.

I will not repeat what I said earlier, but even the Statement that was made today clearly to reassure your Lordships that the amendment tabled by the noble Lord, Lord Dannatt, is not necessary gives me cause for concern. There are holes in the automatic non-means-tested legal advice and support, which should be automatic and non-means-tested for any serving member of the Armed Forces or veteran, whether they are facing investigation or prosecution or are a potential witness. That was the biggest problem I found.

Even the mental health support was less than specific or certain and seemed to be about signposting people to general NHS services, even though we all accept that people serving overseas are under particular strain. If their mental health is under particular strain and they are especially exposed to the law, as the Government maintain, why do they not get specific statutory and automatic support?

This is perhaps one of the most important parts of the debate today, and this amendment is possibly one of the most important that has been tabled. I sincerely hope that the noble Lord, Lord Dannatt, will press it to a vote.

[Lord Stirrup (CB)]

My Lords, I start by adding my thanks to the Minister for the time and trouble she has taken since Committee to listen to the concerns that my noble friend Lord Dannatt and the other movers of this amendment, of whom I am one, have sought to address. The Government have argued, and no doubt will continue to argue, that what we are trying to achieve is both unnecessary and dangerous. I am unconvinced and I shall try to explain why.

In her response in Committee, the Minister pointed to the mechanisms and processes already in place to support service personnel and veterans. There are indeed both official and charitable structures set up for this purpose; they do a great deal of excellent work, as today’s ministerial Statement made clear. But as I tried to explain in Committee, the situation of those accused of criminal activities and subject to the corresponding and prolonged investigations is particularly difficult. I pointed out that the stresses on these individuals and their families are profound and enduring.

These people are not just accused of a crime; they are charged with trampling underfoot the values and ethos that are an essential element of the special body of which they have been a trusted part. They are suspected of betraying their comrades and bringing them into disrepute. I ask noble Lords to imagine what sort of impact all of that has on people who are members of such a close and unique community.

It is alas true that in some cases the opprobrium will be deserved, but we also know that in such circumstances the innocent and the guilty will suffer alike. Even a subsequent and unequivocal demonstration of innocence will not entirely remove the shadow from their lives or allow them to feel quite the same ever again.

Given such horrendous and, in some cases, undeserved consequences, is it so unreasonable to seek a special degree of support for these people? Is it unreasonable to ask that the requirement for and processes to deliver such support should be codified? After all, Part 1 of this Bill is itself mostly about codifying procedures that nearly everyone agrees a competent prosecuting authority would follow in any case. If these need to be set out in the Bill, why not the processes for ensuring the appropriate source of support for service personnel and veterans? To argue in favour of the former and against the latter would strike me as strangely inconsistent. Just to be clear, I do not believe that defence information notices constitute adequate codification.

The dangers that the Government seem to think lurk within this amendment apparently derive from the legal rights it would afford to those it seeks to protect. The accused could sue the Government if they thought that they had been inadequately supported—and who is to say what level of support should be considered adequate? The only beneficiaries, it appears, would be the legal profession.

Well, my first response would be that if the Government failed to provide the appropriate support, then they should be liable. It seems that in this day and age, we are keen to afford justiciable rights to just about everyone—except our service men and women. As to the definition of adequacy, I entirely accept that Amendment 14 as worded may not have adequately circumscribed this, but is it really beyond the wit of government lawyers to come up with a form of words that would do the trick? Surely, the concept of reasonableness and the appropriate kinds of test are not alien to our legal system.

The noble Lord, Lord Faulks, has said that this amendment would do nothing to prevent future Shiners, and I agree with him. I also agree wholeheartedly that tackling the difficulties caused by the extraterritorial application of the Human Rights Act is essential. None of this, though, obviates the need to support those who need our help.

The Government’s argument appears, in essence, to be, “We don’t think this amendment is necessary because we already do what it suggests, but we’re rather afraid of being sued for not doing what the amendment proposes.” This does not strike me as a tenable position. I urge the Government to think again.

[Lord Houghton of Richmond (CB)]

My Lords, I speak in this debate to support the amendment moved by my noble friends. I do so because it is the closest to resolving, or at least ameliorating, the problem—and it is a problem, as many have rehearsed. It is essentially a practical one, relating to training, leadership, command oversight, operational reporting and improved investigative capacity and competence.

I fear that I remain convinced that the resort to legal exceptionalism which this Bill contemplates, and which appears to have initiated so much of the debate in the House, is an ill-considered course of action. It will make our service men and women more, not less, exposed to the challenges of the law. Law, in the context of this debate, is not simply the legislative framework within which war is conducted; it has become a weapon of that war. In the jargon, it is a new vector of attack. By way of emphasising my point, while this Bill has been maturing, we have seen the product of an extended review of the country’s security, defence, development and foreign policy. The results have been the integrated review paper and the companion MoD document, Global Britain in a Competitive Age.

These are both excellent pieces of work and speak to the radically different character of future war. At the heart of both documents are the themes of systemic and enduring competition between nations, between political systems, across multiple spheres. The documents emphasise the lack of clarity over where the threshold of conflict sits, the impossibility of differentiating between peace and war, home and away, friend and foe. They speak of the far greater reliance, in future, on technical advantage, automated processes, autonomous systems. They move the comprehension of conflict beyond the recent sense that it is periodic, adversarial, away fixtures.