UK Defence Forces

Lord Tunnicliffe Excerpts

Thursday 23rd November 2017 Lords Chamber

[Lord Tunnicliffe (Lab)]

My Lords, I, too, thank my noble friend Lord Soley for procuring this debate. It seems to me that the essence of the debate is the question: are the Government maintaining United Kingdom defence forces at a sufficient level to contribute to global peace, stability and security? I put it to your Lordships that at least 12 of the noble Lords who have spoken so far have answered that question with a no, but obviously the Government will try to persuade us that the answer should be yes.

I have investigated what the essence of that claim will come from, and I assume it will come from Command Paper 9161, the racily titled National Security Strategy and Strategic Defence and Security Review 2015, which was published two years ago. Delving among its pages, its reference to defence is to be found on page 29 under the heading “Joint Force 2025”. It says:

“We will ensure that the Armed Forces are able to tackle a wider range of more sophisticated potential adversaries. They will project power, be able to deploy more quickly and for longer periods, and make best use of new technology. We will maintain our military advantage and extend it into new areas, including cyber and space. We will develop a new Joint Force 2025 to do this, building on Future Force 2020”.


The Government committed at the time to produce an annual review of that paper. The first annual review came out in December 2016 and essentially reiterated that Joint Force 2025 would be the answer to its commitment. En passant, I ask the Minister whether there is going to be a second annual review, because if there is, it should be presented next month, in December.

If Joint Force 2025 is the answer to the question, let us look into it. Essentially, defence is made up of equipment and people; 40%-plus of the expenditure is on equipment. The equipment for Joint Force 2025 is covered by the Defence Equipment Plan 2016, published in January 2017. The Government were bullish about this plan. Harriett Baldwin MP, Minister for Defence Procurement, said in the introduction:

“This built robust foundations for the 2015 Strategic Defence and Security Review which now sets the vision and future structure for our Armed Forces, taking us from Future Force 2020 and on to Joint Force 2025”.


I do not find this credible. The plan is a 10-year £178 billion programme that assumes £14 billion—by my calculations, because the numbers are all over the place—of unidentified savings. All history says that that will not happen.

I am not alone in my pessimism. The National Audit Office simultaneously produced a report on the plan, published, once again, in January this year. Amyas Morse, head of the National Audit Office—a moderate person—said on the publication of the plan:

“The affordability of the Equipment Plan is at greater risk than at any time since its inception. It is worrying to see that the costs of the new commitments arising from the Review considerably exceed the net increase in funding for the Plan. The difference is to be found partly by demanding efficiency targets. There is little room for unplanned cost growth and the MoD must actively guard against the risk of a return to previous practice where affordability could only be maintained by delaying or reducing the scope of projects”.


The Joint Force 2025 equipment plan is simply not credible.

Let us now turn to the other side of any force: the people side. The people plan for the future, according to the Library Note, has a 2020 target for the military to have a full-time trained strength of 144,200. The latest figure is 137,720—4.5% down on that 2020 target. One might feel that margin could be built up over the period, but history says that over the last two years our net full-time trained strength has gone down by 3,670 individuals.

Further, according to the UK Regular Armed Forces Continuous Attitude Survey,

“Satisfaction with Service life in general has decreased since 2009, especially for Other Ranks”.


The figures are frightening. In 2009, the satisfaction level recorded in that publication was 61%; it is now 42%, which is a reduction by almost a third. Elsewhere in that report, it says:

“The proportion of personnel who perceive Service morale as being low has increased since 2016”—


one year before—

“driven by the Army (up 12 percentage points)”—

up meaning worse—

“and changes in the Royal Marines (up 15 percentage points)”.

I contend that despite the Government’s statements, Joint Force 2025 is failing. There is not enough money to fund the equipment programmes; there are not enough trained military personnel to populate it; sadly and worst of all, the morale of the personnel is declining.

However, I wonder whether the Government agree with me, for on 20 July 2017 the Cabinet Office—not the Ministry of Defence—produced a statement which said:

“The government has initiated work on a review of national security capabilities, in support of the ongoing implementation of the National Security Strategy and Strategic Defence and Security Review … The work will be led by Mark Sedwill, the National Security Adviser, with individual strands taken forward by cross-departmental teams, and will be carried out alongside continued implementation and monitoring of the 89 principal commitments”,


in those plans. What does this mean, and how is it to be done? Is it just code for more Treasury-forced defence cuts? Will foreign policy be taken into account? As my noble friend Lord Soley said, in the final analysis defence is the kinetic element of foreign policy, so when will the report be published and how will Parliament be involved?

Labour’s position on defence is straightforward. We said in our manifesto:

“As previous incoming governments have done, a Labour government will order a complete strategic defence and security review when it comes into office, to assess the emerging threats facing Britain, including hybrid and cyber warfare”.


Elsewhere in our manifesto, we committed to the 2% and to ensuring that we,

“have the necessary capabilities to fulfil the full range of obligations”.

We also committed to the nuclear deterrent. Sadly for the nation, and particularly for the wonderful people work who work in defence, defence is in a mess. We look forward to the challenge of putting it right.

International Headquarters and Defence Organisations (Designation and Privileges) Order 2017

Lord Tunnicliffe Excerpts

Tuesday 7th November 2017 Lords Chamber

[Lord Campbell of Pittenweem (LD)]

My Lords, I am sure the House is grateful to the noble Earl for his very lucid setting out of the statutory provisions that are engaged here. Without the help of the House of Lords Library, I still managed to chart a rather uncertain course through the legislation. I wonder whether it is not now time for a review, or perhaps a revisal, so as to bring together, in one statute, the various provisions to which the noble Earl referred.

I make no challenge to anything that the noble Earl has said in support of this, although there is one article in the order which he may be in a position to answer some questions about. In Article 5, the immunities which are otherwise conferred are subject to the exception of,

“the seizure of any article connected with an offence; or … the seizure of any article under the laws relating to customs or excise”.

I can understand the purpose behind these exceptions, but I am interested to know—it may not be possible to answer this off the top of the head—just how often these exceptions have been called upon.

The issue of NATO is one which we debate as part of wider consideration of defence. I wonder whether it is not now necessary to have a full-scale debate on NATO, not least because of the potential consequences which there may be for that organisation as a result of the decision to leave the European Union. The United Kingdom, of course, is not leaving NATO, but it seems to me inevitable that there may be some consequences—political, perhaps, if anything—from that decision.

As the noble Earl will understand, some have taken the opportunity of the result of the referendum in this country to reopen the argument in favour of a European army. I will say in parenthesis that I have been told by some who voted to leave that they did so because of the possibility of a European army—but of course by the very act of leaving, we have robbed ourselves of the veto which we could undoubtedly have imposed in relation to that. I take the very strong view, fervent remainer though I may be, that the creation of a European army would be wholly inappropriate and have damaging consequences for the defence of the whole of the north Atlantic area, in particular for those countries in Europe that apparently have such enthusiasm for it.

I did a little research on this. As long ago as 2008, Madeleine Albright, who was then the Secretary of State in the United States, during a discussion about the extent to which there could be a more independent security and defence policy for the European Union, drew attention to what came to be called the three Ds: delinking, discrimination and duplication. Her argument was very strongly in favour of the fact that what was then being proposed could well have the consequence of reducing the essential commitment to NATO, from which we all derive strength and support, by the United States.

At the Warsaw summit, NATO resolved that there should be much closer co-operation with the European Union, but of course co-operation is rather different from the notion of establishing separate structures, separate command and control and, perhaps most significantly in this context, a separate area of expenditure by European Union countries on defence, thereby taking away expenditure necessary to achieve the 2% target, which was of course established at the summit held at Celtic Manor. I have little doubt whatever about the importance of continuing the argument against a European army.

I finish by saying that the enhanced forward deployment to which the noble Earl referred is an important illustration of the fact that Baltic countries in particular can look to NATO for the kind of support which they feel it necessary to ask for in the light of what one might describe as the more expansionist attitudes of Mr Putin and Russia. It is no secret that Mr Putin would wish to destabilise NATO. That seems to be the strongest possible argument for its continuance.

[Lord Tunnicliffe (Lab)]

My Lords, I feel I must apologise to the House because, amazingly enough, I did not come equipped today to discuss Brexit, European armies, NATO in general, the 2% target, Russia, Putin or anybody else. But since we are making general points, I would point out that the Labour Party does support NATO—indeed, we are proud to have actually created it.

I have taken rather the opposite point of view. Given the constitutional niceties of this House, even to suggest that one is going to oppose an affirmative resolution produces a constitutional crisis that rocks the whole building. Whenever I stand up at the Dispatch Box, it is because I have drawn the short straw because I have the SI to do. I spend some time working out what to do to make it interesting. Sometimes you expose the Government’s poor performance, as we did last night, or point out that the order is not going to work, take a swipe at the primary legislation, ask some clarifying questions or ask that clever question that rocks the Minister back on his heels and sends him scrambling for the Box. On this occasion, however, despite the considerable efforts of my researcher and myself, I have to report that we have no questions and the Opposition are content that the order should be approved.

[Earl Howe]

My Lords, I thank the noble Lord, Lord Tunnicliffe, in particular for not asking me any questions. He need make no apology at all for that. I am pleased that he is content with the order, which, as I said in my opening remarks, is essentially legal and administrative in nature.

I was grateful for the comments and questions from the noble Lord, Lord Campbell of Pittenweem. He expressed his view that collating the legal arrangements that are in place could be to everyone’s benefit. I well understand why he should make that point, but the advice I have had is that consolidation would be quite difficult because there are complex interactions between our international and our domestic law. For that reason, I suspect it would be unlikely to attract parliamentary time. Still, I am sure his point has been registered in the right quarter.

The noble Lord asked how often the exemption mentioned in paragraph 5 had been relied upon. The advice I have had is that criminal problems with NATO personnel are extremely rare, and therefore the seizure of articles would be similarly rare. It is always beneficial for this House to return to the subject of NATO, which, as we always say, remains the bedrock of our defence in this country. I am sure that if we did set aside time to debate NATO and matters relating to it, though the noble Lord will understand that that is not in my gift, it would attract considerable support from around the House. As he intimated, it is particularly relevant at the moment in the light of our impending departure from the EU.

The proposal, if that is what it is, for a European army is not one that I or my colleagues sense has generated a great deal of support among European nations generally, particularly not in Germany. However, the subject keeps bubbling up. Our position, in talking to our European colleagues about this country’s future relationship with the common security and defence policy, is to make clear that anything that makes it more difficult for us as a country to continue engaging with the EU after we come out would be retrograde. Our red line here is that there should be no infringement of the Albright principle of duplication; if the EU were in some way to duplicate what we already have in NATO, that would be both unnecessary and damaging. We think that message has hit home, but of course after we leave we will have no direct influence on what the remaining member states decide to do in this area.

I hope I have covered most of the noble Lord’s points, although one could elaborate at length on many of them. If there is any doubt on the subject, the relationship that the UK continues to have with the United States remains broad, deep and very advanced at every level. The collaboration we have with the US extends across the full spectrum of defence, including intelligence, nuclear co-operation, scientific research and flagship capability programmes. That has continued under President Trump’s Administration. From our many conversations with our American colleagues, we know our shared priorities include the fight against Daesh and the importance of NATO as the bedrock of our collective defence. President Trump, Vice-President Pence and Secretary Mattis have all confirmed the US commitment to NATO.

If I have omitted to come back on any of the noble Lord’s points, I will of course write to him.

Armed Forces: Inquiries

Lord Tunnicliffe Excerpts

Wednesday 25th October 2017 Lords Chamber

[Earl Howe]

My Lords, this proposal has been put forward by the House of Commons Defence Select Committee, and the Government have noted it. We are well aware, and recognise, that there are alternative views on how best to deal with the legacy of the past. In recognition of that, the consultation on Northern Ireland will acknowledge that there are other views on how to address the past, including that put forward by the Defence Committee. A public consultation, as I have just mentioned, would provide everybody with an interest with an opportunity to give their views on the best approach to addressing the legacy of Northern Ireland’s past, in particular.

[Lord Tunnicliffe (Lab)]

My Lords, this is part of a bigger problem—an in-theatre conduct, post-theatre investigation problem. It is about the difficult problem of the military legally vesting violence on the Queen’s enemies, as opposed to criminality on the battlefield. The excoriating report of the Defence Committee on the Iraq Historic Allegations Team brought that out, as did the rather apologetic response from the MoD and questions on the subject. Will the Minister reconsider his Answer of 5 September and agree that we should have a public consultation with expert input to try to get to the bottom of this, so that we can produce a consensual answer that goes to the root of the problem, and include it in the 2020 Armed Forces Bill?

[Earl Howe]

As my noble friend Lady Goldie made clear on Monday, in answer to a Question from the noble and learned Lord, Lord Morris, there will be a full-scale independent review of the service justice system. That will give an opportunity for anyone to feed in their views. I therefore hope that the issues about which the noble Lord is rightly concerned can be addressed in that context.

Armed Forces (Flexible Working) Bill [HL]

Lord Tunnicliffe Excerpts

3rd reading (Hansard): House of Lords
Wednesday 25th October 2017 Lords Chamber

[Lord Tunnicliffe (Lab)]

My Lords, we gathered through the debates that noble and gallant Lords were somewhat uncomfortable with the general thrust of the Bill, but for our part we accepted the Minister’s assurance that the senior management of the Armed Forces was behind it. We did our duty as the Opposition, which is to look at detail, seek assurances and propose amendments to make sure that the Bill will work fairly when it becomes an Act. I thank the noble Earl and his team for their courtesy, for the time he gave us, for wisely giving us some of those assurances and for wisely accepting a couple of our amendments. I also thank my noble friend Lord Touhig, who led our side until recently, for his leadership and I acknowledge the support we received from our own back office.

[Baroness Jolly (LD)]

My Lords, I agree with the noble Lord, Lord Tunnicliffe. I thank the Minister and his team very much for supporting the House and us in our deliberations on the Bill. We are pleased that the Government have accepted the view of the Delegated Powers and Regulatory Reform Committee on parliamentary scrutiny and on the adoption of the affirmative procedure. I worked quite closely on this with the noble Lord, Lord Touhig, and with both spads. We agreed amendments between us: so it is an example where, on occasions, opposition parties can work successfully together, and I wish the noble Lord success in whatever he is doing.

On a personal note, this is my last defence hurrah. I have now moved to health and have come back just for Third Reading. It occurred to me as I was walking into the Chamber that ever since I came into this House I have been either opposite or alongside the noble Earl in my deliberations and those of the House. I thank him very much for his courtesy and consideration; I learned an awful lot from him.

Armed Forces (Flexible Working) Bill [HL]

Lord Tunnicliffe Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 12th September 2017 Grand Committee

[Lord Touhig]

My Lords,

“The need for an Armed Forces Covenant is ever more relevant today”.


Those are the words of the very first sentence that the Defence Secretary wrote in the foreword to the Armed Forces Covenant Annual Report 2016. For once I find myself in complete agreement with Sir Michael Fallon—

[Lord Tunnicliffe (Lab)]

Don’t get carried away.

Armed Forces (Flexible Working) Bill [HL]

Lord Tunnicliffe Excerpts

2nd reading (Hansard): House of Lords
Tuesday 11th July 2017 Lords Chamber

[Lord Tunnicliffe (Lab)]

My Lords, I, too, thank the noble Earl, Lord Howe, for introducing the Bill and for the briefing he provided. He has always been careful to provide very thorough briefings. However, the constant theme that has arisen during this debate is the lack of detail. Many concerns have been raised as a result of the great trouble that we have envisaging how the measure will work in practice and be compatible with military requirements.

It is a pleasure to wind up this debate. Although it does not have the longest of speaking lists, it was a matter of “feel the quality, not the width”. It was good that noble and gallant Lords spoke in a way that brought us up short. We so often have conversations about the military as though we are talking about industrial production and it is just another profession. The noble and gallant Lord, Lord Stirrup, hit the point when he said that this is about targeted military action. The noble Lord, Lord Sterling, talked about having the finest force in the world. Let us not lose sight of the fact that the military is about having personnel who are able to kill people, and who are willing to risk their own lives doing so. Other than a very small part of the police force, no other sections of our community are employed to do this; it is a very special way of working.

There were one or two outlying speeches, but curiously enough they came back to this special point. The noble Lord, Lord Dannatt, talked about mental health and its problems. The noble Baroness, Lady Eaton, talked about family support. I think this comes back to the fact that when you put people in these difficult environments, which we believe is essential to our nationhood, for want of a better term, you have to peculiarly and specially support them. So I look forward to possible amendments from the noble Baroness, Lady Eaton, and, indeed, from the noble Lord, Lord Dannatt, if he ventures some—because we should treat these people whom we are asking to do special tasks in a special way.

Talking about individual speeches, I am afraid that I must dissociate myself and these Benches from the remarks of the noble Earl, Lord Attlee, which apparently suggested that women should be excluded from various tasks. I trust the military—

[Earl Attlee]

My Lords, to be clear: certain tasks. The Liberal Democrat Front Bench spokesman alluded to my speech, and did so very carefully. There are plenty of roles in the Armed Forces that women are brilliant at, but in my opinion there are some to which they are not suited.

[Lord Tunnicliffe]

I thank the noble Earl for that intervention. I will go on. Where it is reasonably practical, I do not believe that it is appropriate to exclude women on the basis that they are female. I believe that it is entirely appropriate for the military to set standards of physical performance required for a task. I entirely accept that will mean that in some areas the probability of women achieving those standards may be quite low, but the test should be: are they capable and is this reasonably practical? In that sense, I dissociate myself from the noble Earl’s remarks.

But underlying all this, we support the principle behind the Bill, as I think does everybody. The Armed Forces have distinct, often highly demanding, working conditions. However, the distinct nature of life in the forces does not mean that we should not offer our loyal service men and women opportunities to work flexibly when circumstances allow. The world is changing about us and our institutions must change. My noble friend Lord Brooke described how reluctant organisations had subsequently found flexible working to be of value to them and their employees, and how problems could be overcome. Nevertheless, while accepting the general principle, we have reservations.

We have concerns that this shift may present a slippery slope that eventually coerces or even forces service personnel to reduce their hours to save the MoD money. I have total faith that the noble Earl, Lord Howe, would not do this, but I do not have total faith that subsequent generations would not do it. In my career I have employed large volumes of labour to do jobs where the demand changed. Frequently, I would have given my right arm to have flexibility—to have that labour solely when I needed it and not to have to employ it when I did not. Flexibility is a way of saving money. Indeed, a number of noble Lords mentioned that—including the noble Earl, Lord Attlee. The noble Earl, Lord Howe, himself said that while this is not a money-saving issue, it will save money in recruitment and retention. But the fact that it is there and the continuous pressures on budgets will mean that people will be tempted—and it will not be straightforward; it will be pressures at various unit levels—to coerce and to use these devices to save money.

We on these Benches worry that junior personnel, who have already been subject to pay caps, may lose out if the introduction of flexible working is used to justify a decrease in the X-factor payment. Most of all, however, we worry about the lack of detail in the Government’s proposals. Once again, I thank the Minister and his officials for the documents that they have provided so far. However, given that this commitment originates from the Government’s 2015 strategic defence and security review, it is disappointing that your Lordships’ House has not been presented with either a more substantial Bill or indicative regulations. The department’s policy statement mentions that these proposals were drawn up following “consultation with service personnel”. Again, we have not seen the detail. The noble Earl, Lord Howe, referred to a trial. Where was the trial, what sort of units were involved, and what was the impact on those units?

The noble Baroness, Lady Jolly, said, over and over again, that we need to see the detail. The Minister should know that there is one thing your Lordships’ House does well, and that is detail. We need that in the Bill. I therefore hope that the Government will be more generous in providing information before Committee. Colleagues have asked legitimate questions during today’s debate, and I hope that they will receive detailed answers, either in the Minister’s remarks or by letter.

While the scope of the Bill is narrow, this debate has given us an opportunity to consider some related issues. In their 2010 SDSR, the Government committed to cutting 25,000 civilian jobs in the MoD by 2015. Unfortunately for the former Defence Secretary and current Chancellor, a miscalculation necessitated a further reduction of 3,000 civilian roles in order to come in on budget. Previous Governments of both parties have pursued a thoroughly sensible programme of getting the military out of uniform where they were effectively doing civilian jobs. It was a splendid programme that meant that you did not have people in uniform doing certain jobs, particularly in the increasingly complex areas of procurement, programming and all the various support roles the modern military needs. Instead they went into civilian jobs, where they could have a lifestyle like civilians, with the same flexibilities, and in general they cost less. There was almost a philosophy building up that people in the military—people in uniform—were the ones who did the real, active military stuff. They were deployed overseas at notice, fought in the front line and manned combat platforms. I wish that that had gone on, because if it had, we would have a clearer distinction to talk about now.

Combined with the lowest-ever recorded levels of satisfaction with the basic rate of pay and pension benefits, it is little surprise that some see their future outside the Armed Forces. I hope that this is one of the areas being looked at as part of the wider Armed Forces People Programme, because the introduction of flexible working can be only part of the answer to the ongoing retention problem.

We all know that service personnel form close bonds with their units. These bonds see our service men and women go to great lengths for each other, working not only for Queen and country but for each other. This includes, at times, laying down their life to save that of a comrade. The noble Lord, Lord Dannatt, said that these arrangements must be used sparingly; the noble Baroness, Lady Jolly, said that there would possibly be unintended consequences; and the noble and gallant Lord, Lord Walker, was uncomfortable about how these geographic arrangements would work. We hope that all these issues can be overcome but, before we pass this legislation, we need to know just how it will apply.

This may not be a reason to oppose these measures but can the Minister confirm whether any thought has been given to the possible impact of some personnel in the same fighting unit having significantly different working patterns from those of their comrades? Can he say a few words about what steps, if any, would be taken by commanding officers to mitigate any issues that arose? The noble and gallant Lord, Lord Craig, talked about these matters and was worried about the concept of part-time working. He felt that the words themselves were somehow incompatible with commitment.

Can the Minister also commit to providing more information about the specific criteria against which applications will be judged and about how each of the forces will go about the constant task of assessing the compatibility of flexible working with their operational needs?

In conclusion, Labour supports any attempt to strengthen the rights of working people, whether in civilian life or in the Armed Forces. It is vital to ensure that the Armed Forces can recruit and retain the best talent. Providing flexible working opportunities has a potentially important part to play, but it is certainly not the only answer.

In the spirit of cross-party co-operation, referred to by my noble friend earlier, we very much look forward to working with the Minister and his team to improve this Bill and to improve the lives of our hard-working service men and women. However, we will need much more detail to understand exactly how the legislation will work.

[Earl Howe]

My Lords, as always, and as the noble Lord, Lord Tunnicliffe, rightly said, we have had a good debate, and I thank noble Lords for their insightful contributions. I was very grateful for the supportive comments of many speakers regarding the Bill’s purport.

I will try my best to respond to as many as possible of the questions and points that have been raised but I hope that noble Lords will bear with me if I do not manage to address each and every one today. I will of course write to any noble Lord where I have something to add.

I begin with the contribution of the noble Lord, Lord Touhig. I was disappointed by his sceptical reaction to the Bill. In fact, uncharacteristically, his remarks came over as sceptical bordering on the cynical. I just ask him to give some credit to the services. I believe that we need to support them, in the first instance, for having identified a gap in the current offer to the Armed Forces and, secondly, for coming up with proposals to address that gap in a way that reflects best employment practice in industry and commerce.

Indeed, I stress one key point to the noble Lord and to the noble and gallant Lord, Lord Walker. The new flexible working options have the full backing of the three services. They have been consulted and engaged throughout the design process, and they will continue to be involved as we implement the changes. As I said earlier, the chiefs of the services support these proposals, and they have regularly provided direction and guidance during their development. That development work continues, which is why I do not currently have all the answers requested by the noble and gallant Lord, Lord Stirrup.

As I said, we have consulted the services throughout this project and their advice has helped to shape the design of the new flexible working arrangements. We recently engaged with the three services’ families federations, which have collectively said that they welcome the MoD’s plans. We continue to engage with a range of key stakeholders, and that process will intensify as we continue to develop and finesse our policies in the lead-up to the introduction of the new arrangements in April 2019.

Let me deal with another misconception. There is no question of the services or the MoD imposing flexible working on anybody. Flexible working will only happen following an application by an individual. Far from imposing on regular personnel, these changes provide further protections to personnel in enabling them to achieve a better work/life balance to suit their circumstances.

The noble Lord, Lord Touhig, and the noble and gallant Lord, Lord Walker, suggested that this could all be a plot to reduce the pay bill and/or deprive people of pay. No it is not. The new arrangements have been designed with cost neutrality in mind. As I have stressed before, this change is predominantly about giving service personnel more choice over the way they serve. It will help the Armed Forces to retain our current personnel and to attract and retain future joiners. I thought that the question posed by my noble friend Lord Attlee was very apt: why should we lose personnel because of their family set-up? The answer is, we should not, and I hope the Bill will help us to address this.

Of course, those wishing to vary their commitment will see a commensurate variation in their reward. That variation will be fair and reasonable, both to those who work flexibly and to those who do not. Pay will be calculated on a proportional basis. Further work is under way to determine the precise impact on pensions and the full range of allowances, against the principle that the outcome will be fair and proportionate. We already offer the ability to undertake flexible start and cease-work times for no loss of pay. However, the Bill is designed to offer the ability to work less than others. Therefore, it is right and fair to others to reduce pay proportionately.

As I have just said, flexible working should be seen as filling a gap in the flexible working arrangements already available in the Armed Forces. The noble Baroness, Lady Smith, was right to point out that flexible working is something of an umbrella term in this context. A number of formal flexible working arrangements, such as variable start and cease-work times, have been available for some years subject to local chain of command approval, but these invariably involve doing the same amount of work over a different working pattern, rather than a formal agreement to work less for less pay. We recently introduced a number of progressive flexible working changes, including new leave options and improvements for those taking career breaks, but these flexibilities are limited in their applicability and do not go far enough. As a snapshot, some 2,000 applications were approved across the services in the last six months, covering the various arrangements currently available.

The noble Baroness, Lady Jolly, asked whether the Bill could enable other types of flexible working, such as working from home. I have largely dealt with that and, as she will appreciate, that is not necessary because we already offer opportunities to work from home, as I know she is aware of from her own experience.

The noble and gallant Lord, Lord Craig, asked some detailed questions, including on entitlement to service accommodation. I reassure him that entitlement to service-provided accommodation is a key element of the conditions of service that support the mobility of personnel, and that entitlement will not change as a result of flexible working because it will not change personnel mobility.

The noble and gallant Lord also asked what this will mean for reserves. Reserves are already able to serve in a range of different commitments, so legislative change is not required for them. Under Future Reserves 2020 we have expanded reserves’ terms and conditions of service to meet developing service needs, and there will be no change in entitlement to medical and dental services. Regulars will remain subject to service law at all times, even when they are working part-time. As the noble and gallant Lord knows, the duty to serve and obey, enforced through disciplinary action, is central to the functioning of the Armed Forces. It will remain essential for commanders to be able to issue lawful commands to personnel undertaking part-time or geographically restricted service. Those commands must be followed. However, it will clearly not be lawful for a commander to order a regular to attend for duty on one of their agreed days off or to serve outwith the prescribed maximum number of days of separation.

Keeping part-time regulars subject to service law at all times has the added advantage of absolute clarity for all. There will be no difficult questions for personnel or commanders to consider about whether someone is or is not subject to service law on a given day. The noble and gallant Lord, Lord Craig, asked me a number of other questions and I hope that he will allow me to write to him on those.

However, what I can and should say to the noble and gallant Lord, Lord Stirrup, with great respect to him, is that this is not about flexible terms of employment. Regulars are not employed, so the legislation refers to terms and conditions of service. The noble Baroness, Lady Jolly, and the noble and gallant Lord, Lord Stirrup, asked about levels of uptake. The answer is that we expect a small but significant number to take up the new arrangements. We will manage expectations and explain that applications will be approved only where the MoD can accommodate the arrangements without unacceptably affecting operational capability. We expect that the majority of service personnel will remain on full-time commitment arrangements. So in answer to the noble and gallant Lord, Lord Walker, there will not be a specific cap on numbers, but the services will have full control over the number of people they can allow to work flexibly and will have the controls to vary this over time.

The noble Baroness, Lady Jolly, and others asked about implementation. We plan to allow the first applications from 2019, as I mentioned earlier, and we anticipate that applications and the services’ ability to accept them will grow slowly. This will take careful management and a change of culture in some areas. Implementation will include a communication campaign, along with training and guidance for commanding officers and potential applicants alike.

The noble Lord, Lord Touhig, the noble Baroness, Lady Jolly, and the noble and gallant Lord, Lord Walker, asked about the decision-making process. Commanding officers will not make the final decision on applications to work flexibly. They will be considered by an approvals authority within each service at headquarters level, which will be informed by advice from the chain of command, manpower planners, career managers and other relevant parties. The process is still being finalised, but our aim is for an agile system that will be able to administer applications efficiently.

As regards the applications that are considered, of course some will be refused, as the noble Baroness, Lady Jolly, rightly anticipated. A new flexible working application is more likely to be refused if personnel are in a role that is delivering a critical output or is highly deployable, such as on a ship or in a high-readiness unit, or have already been warned to be ready to deploy to an operational theatre. An appeals process will be put in place to reconsider applications that have been rejected. Each service will have its own separate appeals review body, which will include career managers and other subject matter experts. Personnel will retain their right to enter a service complaint if their appeal is unsuccessful, which will have the oversight of the independent Service Complaints Ombudsman.

Let me stress again that maintaining operational capability will be at the forefront of any decision on allowing a serviceperson to temporarily reduce their commitment. We will also retain the ability to recall personnel to their full commitments in cases of national crisis. We judge that in time this will enhance our national defence as it takes effect and we experience the benefits of improved retention, a more diverse workforce, and the ability to deploy a broader spectrum of our people, both regular and reserve, when and where we need them through the flexibility which this initiative will bring.

The noble Baroness, Lady Jolly, asked whether personnel will be able to join the services and take flexible working straightaway. My noble friend Lord Attlee was quite right on that point. We envisage that personnel will be expected to complete both their initial and trade training along with a period thereafter to settle in and consolidate their training before flexible working is considered.

The noble and gallant Lord, Lord Walker, asked about the legal risks of refusing applications. Decisions on applications will be subject to a robust process, taken at a senior level on advice, and, as I said, with an appeal available. A disappointed applicant will have avenues available to them to seek a remedy. Those appeals or complaints will be considered carefully, with oversight as necessary from the independent Service Complaints Ombudsman. As a result, we would not anticipate a rise in discrimination claims in this context.

The noble Baroness, Lady Jolly, raised an interesting point about workloads, wondering, if I can put words into her mouth, whether these arrangements will mean there will be more work for those who do not avail themselves of flexible working. We will manage the levels of flexible working permitted and therefore will be able to ensure that the right levels are maintained to deliver defence outputs. It is envisaged that capacity surrendered to flexible working arrangements will either be within reducible capacity or otherwise be sourced through other means, such as employment of reserves. Like other organisations with part-time workers, the organisation will change over time to better accommodate flexible working.

The noble Lord, Lord Touhig, asked what skills have been lost so far. I simply say that all personnel who depart take hard-won skills and experience with them, as he will know. Saving any of those skills will clearly help. While figures on the number of skilled service leavers are not held centrally, the Ministry of Defence is absolutely committed to ensuring that our personnel who leave the Armed Forces make a successful transition to civilian life.

The noble Lord also indicated that he would propose that new Defence Council regulations should be subject to the affirmative resolution procedure. The changes will be made by amending existing Defence Council regulations, which are subject to the negative procedure. The matters to be set out in new regulations will be procedural—the right to apply, the right to appeal and so on. The negative procedure is appropriate in this context.

The noble Baroness, Lady Jolly, asked what the prescribed circumstances would be to vary or terminate the new arrangements. These will be set out clearly in new Defence Council regulations, scrutinised as necessary by Parliament. The new arrangements will be terminated only when absolutely necessary—for example, as I indicated, in a national emergency or when there is a major manning crisis.

The noble and gallant Lord, Lord Walker, suggested that we should prohibit those availing themselves of flexible employment from undertaking secondary employment. I simply say to him that this Bill is not about enabling secondary employment. Regulations already exist with stringent controls over the types and forms of employment that may be accepted, but only with authority. As in all cases, service duty takes precedence.

The noble Baroness, Lady Jolly, asked whether flexible working would affect someone’s chance of promotion. Many factors affect promotion, as she is aware, but a period of flexible working will not of itself impact on promotion. In designing the new arrangements we have agreed a number of principles with underpinning activities aimed at ensuring that very thing. These include that we would wish to avoid intentional or unintentional career penalties for those who undertake flexible service. We will create the opportunity for individuals to maintain or regain career momentum. We will seek to maximise accessibility of transfer between the regulars and reserves in both directions by minimising negative career impact. When one thinks about it, a decision on promotion is very largely forward-looking, rather than looking back. It is very substantially about the person’s potential.

The noble and gallant Lord, Lord Walker, asked whether personnel would be able to dodge deployments. In the right circumstances some will be able to avoid being deployed, but a request on those lines will be approved only where the service can continue to deliver its operational capability. It will be refused where that cannot be achieved. Protection from deployments for a limited period where possible will retain some of our skilled personnel.

The noble Baroness, Lady Smith, asked how personnel would find out about flexible working. We have a communications plan in force already to build on the reality of the flexible duties trial, but I shall be able to give her further particulars of that in due course.

My noble friend Lord Sterling raised the important issue of service ethos and was worried that our proposals might damage it. I hope that, as the Bill proceeds, I can convince him that that will not be so. In fact, we expect that the arrangements will enhance ethos over time by helping us to retain and recruit the best people for defence. The evidence that we have gathered from published research literature, consultation with our people, surveys and an ongoing trial tells us clearly that personnel have reported consistently that the impact of service life on family and personal life is the most important factor that might influence them to leave. The three most frequently cited benefits of flexible working are that it helps employees to reduce the stress and pressure they feel under, it enables better work/life balance and it encourages people to stay with their current employer.

I was grateful to my noble friend Lady Eaton for her contribution about family stability and support. I will write to her about the points that she raised. I should be glad if she could provide evidence of the gaps that she feels exist and that are not currently provided for by other statutory bodies in family support, so that I can understand what type of additional support she feels is needed by service families. We need to understand whether families want that additional support, because finding a balance between paternalism and an intrusive approach against making that support readily available is clearly very important.

I listened carefully to the noble Lord, Lord Dannatt, who argued for better mental health service availability for serving personnel. I will gladly follow up the points that he raised after this debate. I also listened carefully to the noble Lord, Lord Brooke of Alverthorpe, regarding his Private Member’s Bill on the abuse of military honours. The Government were well disposed in principle towards the Bill introduced in the previous Parliament; I should be happy to talk to him about the introduction of a similar Bill in your Lordships’ House and the scope for giving it appropriate debating time, which of course is a matter for the usual channels. We explored whether it might have been possible to amend this Bill in the sense that he has suggested, but the advice that I had was that it was not within the scope of the Bill’s Title. As I have said, I would be glad to talk further to the noble Lord.

[Lord Tunnicliffe]

Where the Minister responds in writing to Members, I would be grateful if he could copy it electronically to all of us who have taken part in the debate.

[Earl Howe]

I should be glad to do so.

I am conscious that in the time available I have not responded to the noble Earl, Lord Listowel, on his concerns about families, the noble Baroness, Lady Burt, on BAME recruitment and other matters, and the noble Baroness, Lady Smith, on families’ accommodation. I will do so, however, in writing.

I hope that, despite the reservations that have been voiced, this Bill will receive a fair wind from your Lordships. Our Committee proceedings will doubtless enable us to explore a number of areas of detail about which, quite understandably, noble Lords have raised questions. Until then, however, I commend the Bill to the House.

Armed Forces Covenant

Lord Tunnicliffe Excerpts

Monday 9th January 2017 Lords Chamber

[Lord Tunnicliffe (Lab)]

My Lords, I thank the right reverend Prelate the Bishop of Portsmouth for securing this debate. It is fortuitous that it comes shortly after the publication of the covenant’s annual report. In its submission to that report, the Royal British Legion says:

“During this year we have encountered some confusion as a result of the Covenant rebrand and use of the term ‘treat fairly’ rather than the principles of ‘no disadvantage’ and ‘special treatment’. We would welcome both clear and regular reiteration from government of the enduring principles of the Covenant, and the prominent inclusion of the wording of the Covenant online”.

I agree with the legion. I deplore the softening of the covenant’s primary statement from “no disadvantage”, which is in part a measurable concept, to the much less precise “treat fairly”. Will the Minister accede to the legion’s proposals?

The biggest practical problem that emerges is housing. This includes for serving members and their families, for which the latest UK Regular Armed Forces Continuous Attitude Survey shows a substantial decline in satisfaction, but it is also particularly important in the transition to civilian life. The Government made an important statutory intervention by introducing the Allocation of Housing (Qualification Criteria for Armed Forces Personnel) (England) Regulations 2012. The regulations specifically require of a housing authority that the “local connection” may not be applied to persons who are serving in the Regular Forces or have done so in the five years preceding their application; to members or former members of the Reserve Forces suffering from a serious injury, illness, or disability which is wholly or partly attributable to their service; or to bereaved spouses or civil partners leaving Ministry of Defence accommodation following the death of their spouse or partner where the death is wholly or partly attributable to the spouse or partner’s service.

I have looked into the housing allocation policies in my local area and found that performance varies between complete compliance in Wokingham and Bracknell, weak partial compliance in Rushmoor, formally Aldershot and Farnborough, and no mention of this regulation whatever in the policies of Windsor and Maidenhead. What action will the Government take to secure complete compliance in all English housing authorities of these important regulations, which seek to secure the covenant’s fundamental “no disadvantage” rule?

Armed Forces: Foreign Language Speakers

Lord Tunnicliffe Excerpts

Thursday 27th October 2016 Grand Committee

[Lord Tunnicliffe (Lab)]

My Lords, I thank the noble Lord, Lord Harrison, for introducing this debate and for his contribution, which among other things centred on the availability of information. The contribution of the noble Earl, Lord Attlee, about local interpreters was very useful. He seemed to conclude that we cannot do more to have our own capability, but I certainly take the view that we should. The noble Lord, Lord Wilson, stressed the importance of real expertise and noted the increasingly bad performance in schools. I thank the noble Baroness, Lady Coussins, for pointing to the light among the gloom, particularly in relation to the Army, and for making the important point that there is an intrinsic skill in our population, an issue to which I shall return.

The protection of the British people is the first priority of government. We, as the Opposition, remain committed to Britain’s NATO membership and to spending 2% of GDP on defence. We will stand up for our Armed Forces and ensure that they have the best support. That means leadership, equipment and training, and it is a particular aspect of training and support on which this debate centres.

War has changed. State-on-state wars ending with unconditional surrender and unresisted occupation, as in the Second World War, are becoming an out-of-date concept. The Cold War kept the ideas alive for some time, but recent wars or, perhaps more correctly, armed conflicts have been messy affairs. Enemies have been unclear. Sometimes they have been of the people; they have frequently been among the people and indistinguishable from the people. Targeted aid and diplomacy—winning hearts and minds—have been at least as important as the ability to deliver lethal force.

A key barrier to success has been communication and language. Therefore, I ask the Minister to what extent he agrees with my analysis and to what extent the Government have conducted a lessons-learned exercise into recent conflicts. In particular, have they been able to determine the extent to which better local language capability might act as a force multiplier in future “boots on the ground” deployments? Further, would such language capability improve performance if extended to DfID operatives and diplomats working in crisis situations?

To flesh that out slightly, we have an Army, what is it there to do? If it is fighting a tank battle in East Sussex, something has gone terribly wrong. Yes, the Army must be capable of offering a credible conventional opposition on NATO’s borders, but the overwhelming probability of the future is that the Army will be deployed in very messy situations—insurrections and potential civil wars—working in a local environment where English is not the language. Consider the difference in performance between a unit arriving with its own local language capability, compared with all the problems of recruiting interpreters, getting to know them and getting to work out whether you can trust them.

I have to admit, somewhat ashamedly, that I have no residual foreign language capability. However, this has not stopped me thinking about language and the role it plays. I believe that it probably has three roles. The first is direct communication—giving orders and warnings, and seeking simple intelligence. The second is understanding the society and culture in which one finds oneself, and the third—this is the bit that eluded me as a young person—is understanding how people think. At one point I was responsible for all British Airways overseas staff. When I visited them, they would constantly explain to me how the fusion of language and culture would influence local people, officials, diplomats and politicians. Does the Minister agree that, as soft power and foreign aid merge, greater language capability will pay back the investment with significantly enhanced effectiveness?

Teaching a foreign language takes many forms. My own, traditional experience led to a marginal O-level in French with barely any conversational capability. On the other hand, peers of mine went on to do modern language degrees. My charming German neighbour learned her English in the age-old way. She was a young lady in war-torn Cologne who met a young Royal Air Force meteorologist, part of the occupying power. Magically, she learned to speak English and he learned to speak German. They were married for 50 years. I give these examples to illustrate the range of different ways of teaching a language and to make the point that careful analysis of what capability is required, particularly verbal—or conversational—capability, and to whom it is being taught, may lead to more efficient training than traditional methods. Are the Government planning to increase language training, and will they make a careful analysis of available techniques?

The United Kingdom, as the noble Baroness, Lady Coussins, noted, enjoys a rich and diverse cultural base. Immigration over centuries has created this. Many recent immigrants whose mother tongues are from areas where problems may arise have themselves struggled to learn a foreign language—English. Most will not have any formal teacher training, but they speak their native language. Particularly, they speak the language of the streets. These may be the streets and fields where our troops and aid workers may need to be deployed in future. Surely, those immigrants and their children should be recruited into any enhanced language training facility. In the longer term, should we not be recruiting individuals with useful mother tongue languages into our Armed Forces, security services and aid agencies? To fully utilise them, the military, in particular, would have to develop a more flexible approach to their deployment, but they would, surely, significantly add capability. The concept of a special reserve corps, where individuals were trained with basic “look-after-themselves” infantry capability and could be deployed in support of overseas deployments, using their native language skills, should surely be looked at as a way of increasing this capability.

This has been an interesting debate about an important aspect of the United Kingdom’s weakness in language skills. Sadly, there is little sign of the traditional methods meeting that need. It is good to hear that the Army, in particular, is making progress. I hope the Minister will find some merit in the ideas put forward by noble Lords and will be able to persuade colleagues in the Ministry of Defence and other departments that change is necessary.

Defence: Continuous At-Sea Deterrent

Lord Tunnicliffe Excerpts

Wednesday 13th July 2016 Lords Chamber

[Lord Tunnicliffe (Lab)]

My Lords, I thank the Minister for introducing the debate and I extend my sympathies to him for having an employer that requires him to work such an excessively long day. The hour is late so I will try to make my contribution as brief as possible, but before I move on to my main point, I have a question for the Minister: why now? Why is this vote to be taken next Monday? I do not resile in any way from the commitment made and passed by the Labour Party in the past to hold a vote at around this time; that is, at about the point of what we would have once called the main gateway. But the actual date is next week. We have to make a decision based on no Green Paper, no White Paper and the fact that the Defence Select Committee has not addressed the issue recently. There are no obvious programme milestones. The only thing the Government have produced before the noble Earl’s speech is a document published on 24 March this year which is grossly superficial. It does not set out any costs or lay out seriously the programme.

I am particularly sorry for the new Prime Minister. It is probably only tonight that she will be getting the detailed secret information that only she and certain high-ranking officials are privy to about this issue, yet for political reasons on Monday she will have to support this decision wholeheartedly. I also believe that there is a Chilcot dimension to this. There is a new question around how decisions about going to war are made. I recognise that we cannot know the detail, but we need assurances that those points have been taken into account. Finally, I hope that the Government can give us some indication of the ongoing scrutiny of this project. The partnership of Her Majesty’s Government and BAE Systems does not have a very good record in delivering submarines—and indeed not a very good record in delivering many things. We need to look at the whole issue of value for money and I believe that Parliament should be involved.

The purpose of this debate is not to come to a conclusion as such; there will be no vote at the end and we cannot divide on the matter. It is really to allow many wise and experienced people in the Chamber to get their views out in the open and available to Members at the other end so that they can take account of them in their debate. I have to say that my contribution will add little to that since it contains very little advocacy, but it is appropriate that I set out in a little detail at this point the Labour Party’s position because other noble Lords may want to refer to it.

The 2015 Labour Party election manifesto contained on page 78 the following paragraph:

“Labour remains committed to a minimum, credible, independent nuclear capability, delivered through a Continuous At-Sea Deterrent. We will actively work to increase momentum on global multilateral disarmament efforts and negotiations, and look at further reductions in global stockpiles and the numbers of weapons”.

Sadly, we did not win that election and therefore not unreasonably there was a review of our policies. It took place through an organisation known as the National Policy Forum, which produced a report. Page 69 contains the following:

“The manifesto outlined Labour’s commitment to a minimum, credible, independent nuclear capability, delivered through a Continuous At-Sea Deterrent. It also stated the Party’s commitment to actively work to increase momentum on global multilateral disarmament efforts and negotiations, and look at further reductions in global stockpiles and the numbers of weapons”.

That document went to our party conference and was seized upon by the conference arrangements committee, where there was an effort to have a separate vote on the Trident renewal issue. The attempt was roundly defeated, and received less than 1% support from the trade unions and only a little more than 7% support from constituency Labour parties. Subsequently, there was an affirmative vote to accept the National Policy Forum Report 2015 which contained the paragraph that I have just quoted.

Given that only our conference can change policy, the Labour Party is committed to the maintenance of a continuous at-sea deterrent. However, it is clear that our leader Jeremy Corbyn does not necessarily personally hold that view firmly. He is strongly opposed to weapons of mass destruction and a long-time supporter of the Campaign for Nuclear Disarmament. He is opposed to the replacement of Britain’s Trident nuclear weapons system and supports the creation of a defence diversification agency to assist the transfer of jobs and skills to the civilian sector. It is not that Members do not know of that position but I felt it reasonable to set it out.

Accordingly, he initiated, as party leaders do, a review of our defence policy. I am informed that that review has not reached a conclusion on the deterrent, has not been published and, so far, has not gone to our conference. In parallel with that process, the Labour Back-Bench defence committee in the other place has conducted a comprehensive review of deterrent policy, held many meetings, consulted a wide variety of experts and witnesses and has concluded:

“The report therefore concludes that there has been no substantial change in the circumstances surrounding the deterrent since the 2015 Labour election manifesto and its annual conference later that year reaffirmed the party’s commitment to replace the UK Vanguard submarine fleet. Renewal by completing the current programme to build four successor submarines to maintain continuous at-sea deterrence continues to offer the maximum security and value for money. Other options either compromise UK security or add to cost. Many alternatives do both. The recommendation of this report is that Labour maintains its existing policy of supporting renewal in the upcoming vote”.

I hope that I have presented a fair overview of the Labour position. I reiterate that Labour supports the maintenance of a continuous at-sea nuclear deterrent. Later this evening, my noble friend Lord Touhig will make the case for that position with his usual passion and vigour.

Armed Forces Bill

Lord Tunnicliffe Excerpts

Wednesday 27th April 2016 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I shall say something about the Scottish system of justice. If one is talking about convergence, which part of the United Kingdom one comes from may be relevant to a consideration of the issues. I did my national service in a Scottish regiment and I live in Scotland. The Scottish system of justice differs from the English in relation to verdicts.

The Scottish system at the moment depends on the simple majority. There is a jury of 15 and someone can be found guilty so long as eight on the jury are in favour of guilty. Verdicts are from time to time returned by a simple majority as narrow as that, although most majority verdicts are much more in the area of 13 to two. The fact is, however, that a simple majority verdict is enough for a conviction to be recorded.

So far as the question of lingering doubt or confidence in these verdicts is concerned, my experience as a prosecutor and a judge in Scotland is that that system is accepted without question. There is, of course, an additional element in the Scottish system in that there are three verdicts, not two, and a jury of 15, not 12. I am not concerned to explore the size of the jury or the use of the not proven verdict. The important point is that a simple majority verdict is good enough.

The system has one feature that I think is absent from the proposal in Amendment 1. There is never a question of a failed trial because no verdict has been reached. A Scottish jury always reaches a verdict. There is no question of a failure to reach the required majority because a simple majority will do. If it is not achieved, there is an acquittal. It may be that an acquittal is good enough. When the jury comes to return its verdict, it is either not guilty or not proven. If it is guilty, the jury is then asked, “Is that unanimous or by a majority?” and the foreman will say whether it is a majority or unanimous verdict. The real point and the value of the system for the Scots is that retrials are not required because there is a failure to reach a verdict. If the required figure is not reached, acquittal follows. There is some value in that.

I do not know how far one takes the principle of convergence, but it might be relevant to consider how it applies to those who come from Scotland to serve in any of the three services, who in their domestic system do not have the system which applies in England and Wales, and in Northern Ireland.

[Lord Tunnicliffe (Lab)]

My Lords, I worked out before this evening that Amendments 1 and 2 were, in fact, Amendment 3 in Grand Committee on 1 March. Mindful of the guidance in the Companion, that arguments fully developed in Committee should not be repeated on Report, I took the trouble to read the report of the Grand Committee. At the time, I indicated that I was to some extent attracted to some of the arguments of the noble Lord, Lord Thomas of Gresford. I said:

“I am putting a burden on the Government, today and perhaps in subsequent meetings and in writing, to argue the case for why we should not move in the general direction of these amendments and make the whole process for the defendant more analogous to that of a civil court”.—[Official Report, 1/3/16; col. GC 48.]

I still cleave to that general direction. The Minister then made a spirited defence, stretching from col. 50 to col. 54, which I read and also found persuasive in the sense that making small changes is likely to have unforeseen consequences which might be difficult. I have heard nothing today to change my general direction of travel. The Government should consider examining in the Ministry of Defence, perhaps in concert with the Ministry of Justice, whether the decision-making process where the citizen is on trial—the member of the Armed Forces becomes a citizen at this point—should not be closer to the civil system.

Moving in that direction would create some significant change and there may well be some significant consequences. I am not convinced that today’s amendments would not have unforeseen deleterious effects. Accordingly, these Benches will not be able to support them. We ask the Government to think seriously about the arguments that have been brought forward in Committee and on Report, and to look at the extent to which there should be some movement towards the citizen when on trial having much closer rights and a similar process to the civilian courts.

[Earl Attlee (Con)]

My Lords, I remind the House that I am still a commissioned officer in the reserves, although I am not training. This is my 60th year of life, so I will not be doing it for much longer. The noble Lord, Lord Thomas of Gresford, suggested that both the general public and those in the Armed Forces do not have confidence in the system of discipline in the Armed Forces. My experience is different. I have never had members of the Armed Forces come to me and say that they lack confidence in the system of military discipline. I have to admit that it is a robust system.

I have also never heard a member of the public—someone who is not in the Armed Forces—say that there is something seriously wrong with the system of military discipline, apart from when one reads articles in the Daily Mail, some of which are not very well researched.

One of the problems with what the noble Lord suggests is that we do not understand the dynamics of how the court martial panel works. In Committee, I suggested to the Minister that we need to do research, along the lines proposed by the Opposition Front Bench, to understand what the effect would be. We need to war game it before we start altering the system. I suggested to my noble friend that he keeps this under review and makes sure that we are going in the right direction.

--- Later in debate ---

[Earl Howe]

My Lords, I shall also speak to Amendment 4 in my name. These amendments deal with a matter raised by the Delegated Powers and Regulatory Reform Committee of your Lordships’ House in its 21st report. That matter concerns the regulation-making powers in new Sections 304D(10) and 304E(9), which are inserted into the Armed Forces Act 2006 by Clauses 10 and 11 of the Bill. These powers allow regulations to be made in relation to appeals against reviews of sentence.

It would perhaps be helpful to remind the House that Clauses 10 and 11 of the Bill are part of the statutory framework that we are creating for offenders assisting investigations and prosecutions. New Sections 304D and 304E provide that a person who has been sentenced by the court martial may have their sentence reviewed to take account of the assistance that they have given or offered to give to an investigator or prosecutor, or a failure by that person to give the assistance that they offered to give to an investigator or prosecutor, and in return for which they received a sentence that was discounted. A person whose sentence is reviewed under new Sections 304D or 304E may appeal against the reviewing court’s decision on sentence. The Director of Service Prosecutions may also appeal against a decision. New Sections 304D(10) and 304E(9) allow regulations to be made in relation to the conduct of proceedings on such appeals. Both provide as follows:

“In relation to any proceedings under this section, the Secretary of State may make regulations containing provision corresponding to any provision in Parts 2 to 4 of the Court Martial Appeals Act 1968, with or without modifications”.

Such regulations are subject to the negative procedure.

The Delegated Powers and Regulatory Reform Committee noted in its report that most provisions of the Courts-Martial (Appeals) Act 1968 are provisions governing proceedings before a court, and that it is reasonably common for such provisions to be set out in subordinate legislation, subject to the negative procedure. However, the committee noted that the 1968 Act includes provisions about the recovery of costs and expenses in appeal proceedings, the effect of which may be modified by the Lord Chancellor by regulations, subject to the affirmative procedure. For example, under Section 31A of the 1968 Act an appeal court is prevented from directing the Secretary of State to pay legal costs to a successful appellant except where affirmative procedure regulations made by the Lord Chancellor provide otherwise. The committee is concerned that it would be possible for regulations under new Sections 304D(10) and 304E(9), which are subject to the negative procedure, to make provision corresponding to the costs provisions of the 1968 Act but with modifications that, if made to the 1968 Act by the regulations under that Act, would be subject to the affirmative procedure. The committee takes the view,

“that as a matter of principle the powers conferred by sections 304D and 304E should be limited so that they do not allow the making of modifications which under the 1968 Act would require the affirmative procedure”.

I therefore propose to amend Clauses 10 and 11 to limit the regulation-making powers in new Sections 304D(10) and 304E(9) so that they may not be used to make provision corresponding to a provision that may be included in regulations made by the Lord Chancellor under Sections 31A, 33, 33A, 46A or 47 of the 1968 Act, and that they may be used to confirm regulation-making powers corresponding to the powers in Sections 31A, 33, 33A, 46A and 47 of the 1968 Act, only if the powers are, like the powers in the 1968 Act, subject to the affirmative procedure.

It may be helpful if I give one example of the effect of the proposed amendments. As mentioned previously, under Section 31A of the 1968 Act, an appeal court is prevented from directing the Secretary of State to pay legal costs to a successful appellant, except where affirmative procedure regulations made by the Lord Chancellor provide otherwise. The effect of the proposed amendment is that regulations under new Section 304D(10) could not make provision allowing an appeal court to direct the Secretary of State to pay legal costs to a successful appellant, but could confer a power on the Lord Chancellor to make regulations providing that an appeal court may direct the Secretary of State to pay legal costs to a successful appellant, but only if the Lord Chancellor’s regulations are subject to the affirmative procedure.

This is somewhat complicated but I hope noble Lords will accept that the amendments address the committee’s concerns regarding the parliamentary procedure to which regulations under new Sections 304D(10) and 304E(9) of the Armed Forces Act 2006 are subject. I therefore hope noble Lords will support the amendments. I beg to move.

[Lord Tunnicliffe]

My Lords, discharging our responsibility as the Opposition, I have carefully read the Minister’s letter of 11 April and studied the 21st report of the Delegated Powers and Regulatory Reform Committee and Amendments 3 and 4, and I am satisfied that they meet the committee’s concern. They have our support.

Amendment 3 agreed.

--- Later in debate ---

[Lord West of Spithead]

My Lords, I have a certain sympathy for the amendment of my noble friend Lord Judd but I feel that allowing people to enter the services at 16 is a good thing. I tried to join when I was 14, which was slightly too young in my mother’s and the Navy’s opinion, but I joined at 17. As my noble friend said, a number of the people who join the services at that age come from disadvantaged backgrounds, and what the military does to those people is quite remarkable. If we were able to show that, everyone would see it, but there is no need to do so. It is right that we still take people into the services at 16. They gain a great deal and it is a useful and good thing for our society, in the same way as the cadet forces add a great deal to our society.

[Lord Tunnicliffe]

My Lords, I shall speak to Amendments 7 and 8. Whether we like it or not, this is a fundamental debate about whether young people of 16 should be recruited into the Armed Forces. We have to respect that this is a serious debate and that both sides believe with conviction that their position is right. I respect the work of Child Soldiers International and I recognise the persuasive nature of the arguments it makes. It refers to issues of morality, welfare, economic and even diplomatic issues.

But there is the other side of the debate, which is that for many young people the great start they are given in life by being recruited at 16 provides them with opportunities that no other direction would give. They have the best start to adulthood. We believe that on balance, the argument for the opportunities provided is stronger than the argument that there should be no recruitment until the age of 18. We also believe that there should be the maximum practical protection for these young people.

--- Later in debate ---

[Lord Thomas of Gresford]

When British service personnel operate abroad and are stationed abroad, there is an agreement made with the Government of that particular country. A protocol is brought about whereby decisions can be made according to the machinery agreed in that protocol about whether a person committing an offence in, for example, Kenya, should be tried by the local courts or by court martial. Obviously, that would apply to all cases of offences that are committed in Kenya which would be contrary to its law. In all probability, as has happened in Germany, very much would depend on whether the local population was involved. For example, under a protocol with the Kenyan Government, the rape of a Kenyan woman would almost certainly be tried in a Kenyan court. On the other hand, if it involved personnel who were on duty there together, it would almost certainly be dealt with under the protocol by the service disciplinary system. I am proposing that if it amounts to a serious sexual offence, or an extra-territorial offence such as I have described, it could be heard in this country.

[Lord Tunnicliffe]

Amendments 11 and 12 were Amendments 15 and 16 in Committee. I have reread the debate and do not note anything, other than Kenya, that has been added to them tonight. They go to the essence of the scope of military law. We were not persuaded to support them in Committee and we will not do so now.

[Earl Attlee]

My Lords, I am relaxed about these amendments but I expect that my noble friend the Minister will have something to say about them. Just to tease the noble Lord, Lord Thomas of Gresford, slightly—