All 5 Baroness Smith of Newnham contributions to the Armed Forces Act 2021

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Tue 7th Sep 2021
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Armed Forces Bill
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Armed Forces Bill Debate

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Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, from these Benches as from the Opposition Benches, I support this Bill. As we have already heard, this is the once-every-five-years Armed Forces Bill, following very swiftly on from the annual Bill to ensure that the Armed Forces continue and quite swiftly on from the overseas operations Bill. In recent weeks and months, we have therefore had the opportunity to talk quite frequently about the Armed Forces and as much about our duties to them as about theirs to our country.

I welcome this Bill and certain aspects of it in particular, but as many noble Lords have pointed out, there are some aspects which could go further and some aspects on which we will certainly move amendments. Some will be probing and others very much will not be—they will seek to change the Bill.

While this is in many ways a welcome Bill, which clearly has support across the Chamber—with the partial exception of the noble Baroness, Lady Bennett of Manor Castle, who had a few more caveats than the rest of us—there are two areas where we will want significant change. The first is service justice and a change to Clause 7, while the other is aspects of the Armed Forces covenant.

I do not propose to rehearse the comments made by my noble friend Lord Thomas of Gresford; the reason I asked him to open for the Liberal Democrat Benches was because I knew that he had the expertise to talk about military justice that I absolutely do not. Please take it as read that I am in complete agreement with everything he said, and that is very much the Liberal Democrat position. Any amendment that my noble friend proposes we will support, but that very much fits with comments that we heard from across the Chamber, including from the noble and gallant Lord, Lord Stirrup.

There are questions about why one aspect of the Lyons review was not brought into this Bill. If the Minister is unable to give satisfactory responses on why military justice should differ from civil justice in the areas of rape, murder and manslaughter, a series of amendments will be brought forward. Whether that is in the form of the inquiry proposed by the noble Lord on the Labour Benches or of a series of explicit amendments, something needs to be done to ensure that everybody receives justice—the women who, as my noble friend Lord Thomas pointed out, currently do not receive justice or the service people against whom the allegations are brought. If incorrect or poor decisions are made, that clearly is not right either for the perpetrator or for those against whom offences are committed. We need to ensure that justice is brought for everybody.

I want to talk in particular about Clause 8 and the Armed Forces covenant. Before I do, I pay tribute in his absence to the noble Lord, Lord Cashman, and the noble Lord, Lord Lexden, for their efforts on posthumous pardons. We obviously welcome Clause 18 and will listen to the amendments that they will bring forward.

A key part of this Bill, and where it differs from previous Armed Forces Bills, is the focus on the Armed Forces covenant; all Members are committed to it but there appear to be questions about how far it goes. It is obviously welcome that it is being put on a statutory footing, but what good does that do? As the noble and gallant Lord, Lord Stirrup, implied, there are no clear legal implications from the duty to have due regard in the areas of health, education and housing. Can the Minister tell the House what that might mean in practical terms?

The phrase “due regard” sounds good and legalistic, but what does it mean in practice? We can say to service personnel who are looking to their future, “It’s fine. The Armed Forces covenant is enshrined in law. The local authority will have to give due regard”. However, if the local authority says, “We have no funds—we can’t make any difference. We’ve paid due regard, but the Covid crisis has left us almost bankrupt. We can’t do anything”, what will central government do about that? I say as somebody who was on Cambridge City Council as a portfolio holder, including for customer services and resources for some years, that there is a tendency for Governments of whatever political persuasion to give duties to local authorities. They may give a small amount of money, but it never covers the cost of what is required.

The areas in the Bill on the Armed Forces covenant are very much ones where local authorities are already under pressure. What will the Government do to ensure that local authorities and public health bodies will be able to do anything more than pay lip service to the duty to have due regard to health, education and housing? As the noble Lord, Lord Balfe, pointed out, veteran homelessness is a significant issue. What support will local authorities be given to deal with that aspect of the covenant? A lot more work needs to be done in the Bill on those areas, and I propose to table amendments on the financial aspects.

However, as several other noble Lords have pointed out, we see the duty to have due regard only at the local level, not at the national level. What assessment have the Government made of creating a duty for themselves to pay due regard to the Armed Forces covenant? Are there particular departments of state that could be looking at the Armed Forces covenant? Should those educational duties be on local education authorities or should the Department for Education be doing something? What is happening at the UK level? What should be happening at the Scottish, Welsh and Northern Ireland levels?

In addition to the aspects on the face of the Bill, like my noble friend Lady Brinton I raise the issue of PTSD—a very particular aspect of the health, particularly mental health, areas of the Armed Forces covenant. This puts it very much in the context that the noble Lord, Lord Coaker, talked about in his opening remarks, as did the noble Baroness, Lady Bennett. This Bill must be seen in context. We can see that context in a general way or a very specific one. The general way is, as the noble Lord, Lord Robathan, sought to do—to say that this has been a military disaster and that we in the West are being laughed at. There is a case for looking at the UK’s role in Afghanistan and our role with NATO, but I do not believe that that is for this debate or this Bill. There are lessons to be learned, but they are not issues that we can deal with in this Bill.

What we can do is think about the veterans of Op Herrick and Op Pitting and the service men and women who have been involved, because we have a duty to all of them. As my noble friend Lady Brinton pointed out, the danger is that recent events in Afghanistan are triggering our service veterans, who have in many cases been on several tours of duty there. Can the Government commit to putting more resources into ensuring that PTSD can be treated, and that veterans and current service personnel can be looked after as quickly as possible?

I have no service background, but in the last three weeks I have talked to people who have been involved with the UN, the British Council and our Armed Forces. Talking to people with hands-on, personal experience of those who are currently at risk in Afghanistan is incredibly moving because they are so concerned about the people now at risk of losing their lives—people they have worked alongside and who have worked for them. They feel a personal responsibility, in the way that we as a country and the Government, as responsible for the Armed Forces, all have a duty to the service personnel, as well as to those we are evacuating from Afghanistan.

My final plea is for the Government to think about extending the Armed Forces covenant to those who have come out of Afghanistan under ARAP, and maybe even those who come through the second tier. If that is to be done, I make a further plea on financing. We have already heard the impassioned pleas from my noble friend Lady Garden about widows’ pensions—a very small number, but it would make a huge difference—but the Government have said they cannot do things retrospectively. We have also heard impassioned speeches from the noble Lords, Lord Dannatt and Lord Bilimoria, about the Gurkhas. If we have not been able to look after those people, we will not be able to look after those who will come from Afghanistan, unless we put the resources in. Could the MoD please think about that? If we do not do that, Operation Warm Welcome will be merely warm words and will not deliver. We owe it to our service men and women, and to those whom we are liberating and bringing back from Afghanistan, to ensure that we give them the warmest of welcomes. We must honour our service personnel, as we all owe them a great debt.

Armed Forces Bill Debate

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Armed Forces Bill

Baroness Smith of Newnham Excerpts
I add that I support my noble friend Lady Smith’s Amendment 65.
Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, I will speak to my Amendment 65 and to Amendment 64. Like my noble friend Lady Brinton, I support the other amendments in this group brought by her and the noble Lord, Lord Coaker. They have given us clear arguments why those amendments are important, and I do not think they need to be rehearsed again.

On Amendment 64, my noble friend talked about people who have come here under ARAP. She and I raised this at Second Reading, and the Minister was kind enough to take some time to discuss it with me yesterday; I am grateful for that. There is clearly a question of scope in an Armed Forces Bill such as this. To suggest that we might extend the Armed Forces covenant to people who have not been service personnel with the British Army, Commonwealth or Gurkhas might raise some eyebrows. There were certainly some questions about that around tabling Amendment 64, which is why there is a specific bit of phrasing about extending the covenant

“to cover civilians subject to service discipline”.

My noble friend Lady Brinton asked whether we have a moral duty. The answer is surely that we have a moral duty to support in every possible way the people coming to the United Kingdom under ARAP. By definition, they are arriving here under ARAP because they worked as interpreters for our Armed Forces, with other allies or perhaps for the British Council. Those who worked for the British Council are vulnerable. It is easy to assume that it is simply interpreters putting their lives on the line, but those who were out teaching English now find that their lives are under threat. It is incredibly important that we look at them, not just at interpreters—although the situation with interpreters is very important. Why bring this amendment? Clearly, the ARAP scheme is in place and remains open, but those coming in under ARAP have worked closely with our Armed Forces and potentially put their lives on the line for the United Kingdom.

Surely we owe them a duty. Given that the Armed Forces covenant is supposed not to give advantage to service personnel and veterans but to ensure that they are not at a disadvantage, so there will be many issues facing people here under ARAP that are very similar to those faced by service personnel and veterans. I would like the Minister at least to explore what provisions we can make for people under ARAP, in particular to ensure that anybody arriving under ARAP can work from day one, because most people who come here under other Home Office arrangements seeking asylum are not permitted to work initially. That is very important.

My Amendment 65 is slightly different and perhaps should have been decoupled, because it relates to the duties put on local authorities and local health authorities. The Bill talks about having “due regard” and requesting local authorities to do certain things. At Second Reading, the Minister suggested that they have to have due regard, but there will not necessarily be financial provision for them to do so because they already have a duty to do certain things, so incorporating the Armed Forces covenant into law will not really make a difference. The way I phrased it may have sounded muddled, but I have been left muddled by the Government’s intention. If there is a purpose to putting the Armed Forces covenant into law, surely it is precisely to ensure that it makes a difference. If local authorities find that in paying “due regard”, now on a statutory basis, to the Armed Forces covenant they are required to engage in further expenditure, where will that money come from?

It is not possible within the scope of a Bill in the House of Lords to table a line saying, “Please give local authorities additional funds”, so we are not asking for that. We are asking for the Government to report on the financial implications of enshrining the Armed Forces covenant into law. If local authorities, housing associations and local health authorities incur financial consequences when engaging in their duties by supplying services such as social care, housing or health, we would then know that and it may at some suitable point be possible to bring forward relevant legislation. If no assessment is made, it is impossible to know the consequences.

The amendment is in a sense a probing amendment because we need to understand the real consequences of enshrining the Armed Forces covenant into law. If it is causing local authorities additional costs over which they have no say we should try to ensure that the finances are there to cover that.

Lord Lancaster of Kimbolton Portrait Lord Lancaster of Kimbolton (Con)
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My Lords, I shall speak briefly to this group. I have no fundamental objection in principle to extending the categories as proposed by the noble Lord, Lord Coaker. When I was the Minister responsible for this Bill five years ago there was great discussion of what the categories should be.

My concern—not an objection—is practical, which is perhaps the purpose of Committee. There has been some cynicism about the effectiveness of the Armed Forces covenant since we first created it, and its implementation has been patchy across the United Kingdom. Given how many local authorities are recovering from the pandemic and have been overwhelmed, I am slightly concerned that by adding all these categories now—the key word is “now”—we run the risk of overwhelming various bodies and simply adding to the cynicism that we have not managed to implement the Armed Forces covenant when they fail to implement it effectively.

My suggestion is a sensible one, though perhaps not for today, as to whether there should be an incremental addition to the categories that we put in the Armed Forces covenant. I am sure it cannot be beyond the ability of the Bill to attach dates for when categories are potentially added. I am not saying that we could necessarily sort that out today, but it may be a sensible compromise as we seek to slowly expand the Armed Forces covenant and make sure that we do not lose public consent to it being implemented effectively as we do so.

Equally, I have great sympathy with Amendment 64, having served in Afghanistan and worked closely with interpreters. There is no doubt that they were subjected to the same sorts of pressures and stresses that members of the Armed Forces were. Of course, having now crossed the line where we have rightly welcomed them into the UK, although it is a question of scope, and it may well be beyond the scope of the Armed Forces covenant to include them, I think the Government have a duty to explain how exactly, if they are not going to be included in the covenant, we will ensure their ongoing welfare.

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Lord Craig of Radley Portrait Lord Craig of Radley (CB)
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I endorse what the noble and learned Lord has been saying about what was known as Gulf War syndrome. Of course, I was involved in that Gulf War but after it I was also involved for many years in the investigations and the attempts to get investigations into what was known euphemistically as Gulf War syndrome. There was a great reluctance, perhaps understandably in government, to accept that there was something special here. It took a great deal of persuasion, study and effort before it became more recognised. It was that experience that makes me believe what noble and learned Lords have been talking about, and how important it is that the Secretary of State and central Government, in effect, have a responsibility which may need to be discharged in this type of situation. I hope it does not arise again but if it does, it can be dealt with at the central level.

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Lord Coaker Portrait Lord Coaker (Lab)
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I am generally supportive of the amendment moved by the noble Lord, Lord Lancaster. He very ably made the point why the time to act is now rather than waiting a further five years before something is done. I very much hope the Minister can respond positively to what I think is a very sensible amendment.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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I have nothing to add.

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

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

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

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

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

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

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Lord Lancaster of Kimbolton Portrait Lord Lancaster of Kimbolton (Con)
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I am grateful to be able to contribute briefly on this group, which is an area of particular interest to me. I declare my interest as chairman of the Reserve Forces Review 2030, which is the 10-year review of the Reserve—the outcome of which is, I should like to think, partly responsible for some of the Bill’s provisions on the Reserve.

The headmark of that review was the integration of the Regular and Reserve Forces. Within that, we attempted to create a spectrum of service—right of arc, full-time regular service; left of arc, a civilian—and within that spectrum of services, enabling the principle of bringing civilian skillsets through Reserves into delivering against defence demand signals. We encountered two principal barriers to that spectrum of service. The first, frankly, was money. Unlike the Regular Forces, the Reserve Forces are always considered to be a marginal cost and therefore, as soon as there are pressures on costings, it is the Reserves’ budget that will be reduced.

The other, to which this technical amendment goes directly, was terms and conditions of service. Of course, we already have full-time Reserve service, but we do not have the ability for reservists to have not a contract, per se, but an assured Reserve capability. That could be on a part-time but enduring basis—for example, not being contracted to work five days a week and becoming a temporary regular, but to be able to do it as part of a portfolio career. That would enable you to come in and, perhaps, work one day a week but over an enduring period. It would make the Reserve much more effective in delivering almost as augmentees, working on a daily basis, and moving away from its traditional role as a contingent capability that trained at weekends and was always used as that traditional Reserve.

That is why this government amendment is so welcome, to my mind. It helps to deliver that traditional Reserve capability for a Reserve which will be very much suited for the 2030s.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, I wanted to hear the noble Lord, Lord Lancaster, before I spoke because I thought that if there were any heffalump traps, he might have spotted them, given his expertise on reserves. I seem to recall that when we were looking at flexible working for the regulars it garnered some concern from certain Benches and perhaps from some noble and gallant Lords who were a little concerned that you could not be a part-time soldier. Actually, that was never what was being suggested.

Looking at these amendments one by one, a bit like the noble Lord, Lord Tunnicliffe, I could only assume that they were all doing what the Minister said they were doing because they look so technical. I think the statement given by the Minister and the comments from the noble Lord, Lord Lancaster, both suggest that this is helping to bring the reserves into an even more effective place. The reserves clearly play an important role, and if there can be a logical movement between full-time and part-time work and that counts as continuous service, that has to be all to the good. The only thing I would say, if anyone were looking at a complete guide to plain English, is that by the time anyone is looking at this Bill it will be totally unreadable because the language seems to be so arcane. I hope it will keep the government lawyers working for many years to come.

Viscount Brookeborough Portrait Viscount Brookeborough (CB)
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My Lords, I want to make one comment. It is slightly out of context but what the noble Lord, Lord Lancaster, was talking about there, bringing the reserves in more and greater integration, also moves things. His report will take consideration of civilian contractors who come under military law. We are beginning to bring the whole thing together, and a previous amendment about making the covenant more available to those contractors who may be under military law becomes even more relevant.

Armed Forces Bill Debate

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Armed Forces Bill

Baroness Smith of Newnham Excerpts
Lord Sentamu Portrait Lord Sentamu (CB)
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My Lords, I too support Amendments 4 and 17. What brings me to this conviction is a case in which the widows of four soldiers from the Royal Marines were asked to leave their houses within three months of their deaths. They had nowhere to go. Another soldier who survived the same battle came to see me in Bishopthorpe, together with four other members of the Royal Marines, to say that we had to protest about the way widows were treated. There was talk about the covenant, but it had not yet come through. To raise the profile of this issue, they wanted me to join them in a parachute jump. At my age, this is quite serious business, but I thought that yes, I would join them. We were up there, at 14,500 feet, and, thank God, I survived; there was no real trouble, and I landed properly. Do you know what happened? People who saw this and learned what had been done donated a lot of money, and those four widows were housed in new builds, supported by a landowner who gave them a place to build houses.

That is what the covenant is about in the end: that we should look after anybody who has done their duty for the service of the Crown and the nation. The Bill is right to require local authorities and other places to have due regard to the covenant, but I would have thought that the Government should be first in line to have due regard to it, because the Secretary of State is answerable to Parliament, unlike local authorities. We could have some junior Minister reporting on what is happening and what is not happening, but the issue of democracy at the heart of this is that members of the Government are answerable to Parliament and can therefore be asked questions. The noble and learned Lord, Lord Mackay, is right to include the Secretary of State in Amendments 4 and 17. If they were agreed, the covenant would no longer be given to people of good will to try to do whatever they want—the Government would actually be answerable, and we could ask them questions.

This amendment is timely. I hope we will all support it and that the Government will see it as an improvement, not an attempt to create more jobs and work for the Secretary of State. In the end, our soldiers ultimately look to them for a voice, for help and for support.

I did that parachute jump and was very glad to see the covenant a few years later, but it still did not quite do what this amendment is trying to do. I say to the Government: do not come back to this again—include the Secretary of State.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, I will speak to Amendment 4, which I have co-signed, and Amendments 3, 5, 6 and 7 in the names of the noble Lord, Lord Coaker, and my noble friend Lady Brinton. We have already seen this afternoon one of the slight peculiarities of our system, which is currently not quite hybrid: we had a long delay on the first Division, because somehow the technology did not quite work. At the moment, the technology does not quite work either for noble Lords who seek to be both in Grand Committee and in your Lordships’ House, in the main Chamber, simultaneously. For those of us here physically, it can be possible to move very quickly between the Moses Room and the Chamber. Our colleagues appearing virtually have to log on half an hour before an item of business, so my noble friend Lady Brinton apologises for not speaking on this group.

I will speak to the amendments she has co-signed with the noble Lord, Lord Coaker. There is one aspect in particular which ought to be mentioned: paragraph (i) of Amendments 3, 5, 6 and 7, which mentions an immigration function. If we are going to talk—as the noble and gallant Lord, Lord Craig of Radley, and the noble Lord, Lord Alton, have done—about Hong Kong service personnel who served with our Armed Forces, initially as citizens and then losing that citizenship and perhaps having only the right to BNO status, I fear that we need to think about immigration questions and the Home Office.

I am aware that the Minister will be responding on behalf of the MoD, even though obviously she is also responding on behalf of the Government as a whole. I am therefore aware that some of the things we will ask might not be within her gift, but I very much endorse the impassioned calls from the noble and gallant Lord, Lord Craig of Radley, and my noble friend Lord Alton about the situation for Hong Kong veterans. They served for us. We owe them a debt of gratitude and the citizenship rights they expected.

If the Minister cannot commit, as I suspect she will not, to changing this piece of legislation in the way that some of us might want, can she at least undertake to go and talk to her colleagues in the Home Office and discuss ways in which we can look at veterans—not just the Gurkhas or Commonwealth veterans, who will appear in later groups of amendments, but the Hongkongers? This is vital, in part to demonstrate that the United Kingdom respects those who have worked with us. We have a moral obligation. Can we trust the Government to live up to it?

We heard the noble Lord, Lord Lancaster, suggest that he actually had some sympathy with this group of amendments, particularly Amendments 3, 5, 6 and 7. He would like to bring in these additional functions, alongside healthcare, education and housing, but thinks it is too much, too soon. But, as we have heard, we will not have another full Armed Forces Bill for five years. Would it not be appropriate to bring forward and approve these amendments now, acknowledging that maybe they will not all be brought in on day one? Indeed, if they were all brought in on day one, that would be nothing short of a miracle—but, if they are enshrined in the Bill, it means that the Government will have a duty to look at these additional functions, and even the noble Lord, Lord Lancaster, who appears to be most sceptical about the amendments, acknowledges that these functions should be considered. So I ask the Minister to think again about these functions and whether they should be added to the Bill.

I particularly want to speak to Amendment 4, to which I added my name. It seems quite extraordinary for a Government to say, “We are so committed to the Armed Forces covenant that it has to have statutory status, yet it should not place a duty on us. We ourselves should not have to pay due regard to it, but we will ask local authorities, local health authorities and housing associations to do so”. Why are we not asking the Secretary of State for Defence to have a duty? Why are we not asking the Secretary of State responsible for levelling up, houses, communities and whatever else is now part of that portfolio?

We have heard from the noble Viscount, Lord Brookeborough, that it would also be important for the Secretary of State for Northern Ireland to play a part. As he pointed out, the amendment refers only to England. It would be very simple to have additional lines that would give it validity in Northern Ireland, and indeed Scotland and Wales. If the Minister were to say, “We can’t do something that’s for England only”, could she perhaps consider bringing back at Third Reading some amendments that would deal with this?

From the letter that the Minister sent to us last week, we know that she will say that the Government are out of scope of the Bill because, actually, it is at local level that we see problems. Well, if it is only at local level that we see problems, surely it would be of no difficulty whatever for the Secretary of State to find himself in the Bill and for the Government to have a duty enshrined in this piece of legislation. The Government should be leading, not simply setting duties for other—lower—levels of local government. The Government themselves should take responsibility and the moral lead.

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

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

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

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While I do not intend to divide the House on this amendment, I hope that my noble friend will be able to recognise why this is important, and that she will be able to say she will potentially look at this and that legislation may well be necessary; mind you, we have said that before. I hope that we can finally move forward on this issue.
Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, the noble Lord, Lord Lancaster, brought a similar amendment forward in Committee, which we discussed. He has made very clear why there is a case for expanding the role of the Veterans Advisory and Pensions Committees. He seems to be exhorting various people to think about Private Members’ Bills but, as that is not the role of your Lordships’ House today, could the Minister say how far the Government would be willing to explore his ideas? Is there a neat way in which she might be able to bring forward a suitable amendment at Third Reading which means that, while he does not need to divide the House today, the intentions could be brought on to the face of the Bill?

Lord Tunnicliffe Portrait Lord Tunnicliffe (Lab)
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I thank the noble Lord, Lord Lancaster, for tabling Amendment 15. I have not much more to add than my comments in Committee, so I will not hold up the debate for long. I again thank everyone involved with the Veterans Advisory and Pensions Committees across the country. These committees help to ensure that veterans and their families receive the help and care they need on pensions, allowances and other issues, and act as an important bridge between the veteran community and national government.

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Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I beg to move Amendment 24 in my name. I am grateful to the noble Baronesses, Lady Smith of Newnham and Lady Bennett of Manor Castle, for supporting this amendment, which seeks to establish a defence authority responsible for cultures and inappropriate behaviours outside the chain of command. This is a direct recommendation from both Wigston and the Defence Sub-Committee’s recent report into women in the Armed Forces.

I am sure one of the arguments we will hear from the Minister again is that we do not need an independent defence authority, as the Government established the diversity and inclusion directorate in April this year. But I remind the Minister of the conclusion of the Defence Sub-Committee’s report, which stated that:

“the Directorate’s mandate differs in key ways from the Authority recommended by the Wigston Review. For instance, the Directorate will not handle the most serious behavioural complaints outside of the Single Services, centrally.”

Therefore, there is a clear difference. The report was also clear that

“the MOD has not fulfilled the recommendation for a Defence Authority”

with the directorate. I would be grateful to know what the Minister says to that.

The report found that

“the Services are failing to help women achieve their full potential … Within the military culture of the Armed Forces and the MOD, it is still a man’s world … There is too much bullying, harassment and discrimination—including criminal behaviours like sexual assault and rape—affecting Service personnel.”

I know the Minister and all noble Lords will agree that this has to change and we need to do better. The debate is about how we do that.

The Minister will understand how much this is a real issue. We read in our newspapers and heard on the news recently:

“Army boss announces culture audit after defence secretary talks.”


This is a probing amendment, not something I will seek to divide the House on. Notwithstanding that, the amendment deals with a very important matter, which I know all of us will be concerned about. The news continued:

“The head of the British army has announced an independent audit of its culture amid concerns over bullying, sexual harassment and discrimination. Gen Sir Mark Carleton-Smith said the audit will ‘reinforce the best and weed out the worst’ It comes after Defence Secretary Ben Wallace met Army leaders earlier over concerns about culture and discipline.”


I am really pleased that the Defence Secretary and General Sir Mark Carleton-Smith have done that. The debate is whether an independent defence authority, established according to the recommendations of Wigston and the Defence Sub-Committee, would help deliver that and ensure that the changes that we all want occur quickly and make a real difference.

In closing, I ask the Minister whether we have yet been told the date on which the Government will publish their response to the Defence Sub-Committee’s report. I understand that it may be next week. Can the Minister confirm that? I gently say to the Minister that it would have been helpful for the passage of the Bill had we had the Government’s formal response to that report before the conclusions of our deliberations—with Third Reading next Monday.

As I said, this is a probing amendment. I know the Minister cares about these issues and wants change to occur. All I am saying is that the Army, the Defence Secretary and everyone agrees, but it is how we deliver it, whether we cannot get a little bit of a move on, and whether an independent defence authority—as recommended by the bodies I have mentioned—would help with respect to that.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, I support the amendment in the name of the noble Lord, Lord Coaker, which I and the noble Baroness, Lady Bennett of Manor Castle, have signed.

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

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

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

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

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

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

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

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

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Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, I support this amendment. Many of the issues have been rehearsed at earlier stages of this legislation, as the noble Lord, Lord Dannatt, pointed out. We have even heard some of the arguments rehearsed in the second group of amendments this afternoon. However, I feel I need to speak again at this stage to try to bring together a few issues, because the question of service personnel who have put their lives on the line for the United Kingdom, whether from Hong Kong, the Commonwealth or the Gurkhas, needs to be recognised. We need the Government to do more than give lip service to this.

As the noble and gallant Lord, Lord Craig of Radley, pointed out just now, until citizenship is resolved for those from Hong Kong who have served with our forces, the very least we can do is look at ways to ensure that indefinite leave to remain does not cost people a king’s or a queen’s ransom. The cost of securing indefinite leave to remain is unconscionable. If somebody has a right to indefinite leave to remain, surely it is appropriate that the cost of securing it is the cost of administering it. If those of us who are British apply for a passport, we pay an amount of money that seems a lot to many individuals but is essentially an administrative cost. The cost of securing indefinite leave to remain is far more than that administrative cost.

I am aware that decisions on this are down not to the Secretary of State for Defence but to the Home Office. Therefore, rather than asking the Minister to commit at this stage to reducing the cost of applications for indefinite leave to remain, all we can ask her to do is to go back and raise this question again with the Home Office.

I also ask the Minister whether we cannot help her. Is there some way in which Parliament can say to the Home Office, “This is something you must do”? It goes beyond questions of how many individuals are coming to live in the United Kingdom or targets of tens of thousands of people. It is about the UK’s duty to those who have served with us. Is there some way in which Parliament can make that case to the Home Office? Can we, as Members of your Lordships’ House and the other place, help the Ministry of Defence do the right thing and put some pressure on the Home Office to reduce the costs?

It is not appropriate to ask for £2,000 or more from somebody who served with us, or from their family. If somebody who has a spouse and children wants and needs indefinite leave to remain, surely they do not want that on their own; they want to come with their families. The noble Lord, Lord Dannatt, pointed out at this stage and in Committee that people who have come from Afghanistan under ARAP have come with their dependants. If we think that there is a right for citizens from the Commonwealth and Hong Kong and the Gurkhas who have served with us—and for us—to come and live in this country, surely we should give them the opportunity to do so without making the cost prohibitive.

If the Minister cannot give us a guarantee on reducing the costs—I suspect she cannot—can she at least give us some guidance on how we might be able to help her to persuade the Home Office to do the right thing?

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Lord Coaker Portrait Lord Coaker (Lab)
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I will make a very brief comment based on what the noble Lord, Lord Russell of Liverpool, and my noble friend Lord Browne have just said. There was some debate in Committee about raising the age of recruitment, and there was disagreement about that. It is incumbent upon the Government to take very seriously the points that the noble Lord, Lord Russell, and my noble friend Lord Browne have made, about the allegations and reports there have been, whatever the rights and wrongs of that. Also important is the point raised in the amendment about the length of service and what is taken into account.

For those of us who, like me, do not support raising the age of recruitment, it is particularly incumbent upon us to ensure that reports and allegations of the sort we have heard from the noble Lord, Lord Russell, and my noble friend Lord Browne, alongside some of the other concerns raised, are taken very seriously by the Government. They should address them as quickly and urgently as possible and report the results of their deliberations into the public domain.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Armed Forces foundation college—

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Baroness Bennett of Manor Castle Portrait Baroness Bennett of Manor Castle (GP)
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My Lords, I apologise again for not speaking in Committee due to being at COP. I offer support and regret that I did not attach my name to this amendment. What the noble Lord, Lord Browne, said about public consultation in this process is really important, as is what the noble and gallant Lord, Lord Houghton, said about parliamentary scrutiny. Those two things very much fit together.

I am very aware that the Minister started this day, many hours ago now, promising to read a book, so I will refer to a book but not ask her to read it. It is entitled Exponential: How Accelerating Technology is Leaving Us Behind and What to Do About It, and it is by Azeem Azhar. The thesis is that there is an exponential gap: technologies are taking off at an exponential rate, but society is only evolving incrementally. In terms of society, we can of course look at institutions like politics and the military.

Another book is very interesting in this area. Its co-author, Kai-Fu Lee, has described it as a scientific fiction book, and it posits the possibility of, within the next couple of decades, large quantities of drones learning to form swarms, with teamwork and redundancy. A swarm of 10,000 drones could wipe out half a city and theoretically cost as little as $10 million.

It is worth quoting the UN Secretary-General, António Guterres, who said:

“The prospect of machines with the discretion and power to take human life is morally repugnant.”


That relates to some of the words in the podcast that the noble Lord, Lord Browne, referred to; I have not listened to it, but I will.

Fittingly, given what the Secretary-General said, the United Nations Association of the UK has very much been working on this issue, and communicating with the Government on it. In February, the Government told it that UK weapons systems

“will always be under human control”.

What we have heard from other noble Lords in this debate about how that language seems to have gone backwards is very concerning.

This is very pressing because the Convention on Certain Conventional Weapons will hold an expert meeting on 2 December, I believe, which will look at controls on lethal autonomous weapons systems—LAWS, as they are known. It would be very encouraging to hear from the Minister, now or at some future point, what the Government plan to do if there are no positive outcomes from that—or, indeed, whatever the outcomes are. While the Government have ruled out an independent process, both the mine ban convention and the Convention on Cluster Munitions were ultimately negotiated outside the CCW.

Finally and very briefly, I will address proposed new subsection (2)(d) and how individual members of the Armed Forces might be held responsible. There is an interesting parallel here with the question on deploying autonomous vehicles—the issue of insurance and who will be held responsible if something goes wrong. Of course, the same issues of personal responsibility and how it is laid will face military personnel. This may sound like a distant thing, talking about decades, but I note that a report from Drone Wars UK notes that Protector, the new weaponised drone, is “autonomy enabled”. I think Drone Wars UK says it has been unable to establish what that means and what the Government intend to do with that autonomy-enabled capability, but the first of an initial batch of 16 Protectors is scheduled to arrive between 2021 and 2024, and the Protector is scheduled to enter service with the RAF in mid-2024.

So I think this is an urgent amendment, and I commend the noble Lord, Lord Browne, and the others on this, and I would hope to continue to work with them on the issue.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, I would like to support this amendment, in the name of the noble Lord, Lord Browne of Ladyton, the noble and gallant Lord, Lord Craig, and my noble friend Lord Clement-Jones. The noble Lord, Lord Browne, has probably spent an hour, this evening and in aggregate, explaining to the Chamber the need for this amendment.

As the noble Lord and my noble friend Lord Clement-Jones have pointed out, on 1 November, some of the issues raised about novel technologies and autonomy were raised; I am not sure the House was wholly persuaded by the answers the Minister was able to give on that occasion. I think it is essential that the Government think again about how they might respond to the noble Lord, Lord Browne, and to this amendment, because we have heard how vital it is that we understand the danger that the world is in. We cannot just ignore it or say we might think about it at some future date because it is not a matter for today.

If we are keen to recruit for the 21st century, recruitment is not just about cannon fodder; it is about people who are able to understand the legal aspects of warfare and the moral issues we need to be thinking about. We need service personnel, but we also need—as the noble Lord, Lord Browne, so eloquently argued—politicians and officers who are able to make decisions. There are questions about autonomy that need to be understood and focused on now, and it is crucial that we talk with our partners in NATO and elsewhere. We cannot simply say we are not interested at the moment in debating and negotiating international agreements; we absolutely have to. The time to act on this is now; it not at some future date when the Government think they might have time. We need to do it today.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, this is one of these debates that takes place very late at night that should have a packed Chamber listening. It is not a criticism, but the importance of the debate is immense. I thought the introduction from my noble friend Lord Browne was tremendous—I really did. We went from a situation where we all thought “Hopefully we won’t be too long on this amendment” to everybody listening to what he had to say and then thinking they had important contributions to make.

Lots of noble Lords have made outstanding contributions, but this is a bit of a wake-up call, actually. This is happening. My noble friend Lord Kennedy mentioned that he was in a Home Office debate and they were talking about what the police were looking at and, no doubt, what Border Force and all sorts of other people are looking at. But in the sense of the military here, as the noble and gallant Lord, Lord Craig, pointed out, we are going to ask people to operate within a context and a legal framework. What will that be? Because we are going to order them to do things.

Armed Forces Bill Debate

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Armed Forces Bill

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

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

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

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, I join the noble Lord, Lord Coaker, in thanking the Minister, and join her in thanking her officials for the time they have been willing to take to brief the opposition spokespeople here in the Lords, and to answer questions in private, in Grand Committee and in the Chamber. It has been an important process and helpful to have had detailed responses, particularly on some of the legislative aspects, where my noble friend Lord Thomas of Gresford is expert and I am not. It has been very useful to have the legal input, and I am grateful for that.

Like the Minister and the noble Lord, Lord Coaker, I pay tribute to the Armed Forces. The Bill is important, and it is particularly important at this time to be putting the Armed Forces covenant on a statutory footing. We have now left Afghanistan—Op Pitting has just taken place—and, for many of our service personnel and veterans, there will be questions about the end of Op Herrick and what we have managed to achieve. For some, there may be consequences with which, I hope, the Armed Forces covenant will help them deal.

I very much hope that the two amendments passed in your Lordships’ House will go through the other place without needing to come back for ping-pong. I suspect that may not happen but, pending that, I thank the Minister again and hope that the Bill is passed as quickly as possible, because we clearly need it on the statute book by the end of the year.

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

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

Armed Forces Bill Debate

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Armed Forces Bill

Baroness Smith of Newnham Excerpts
Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, I rise to support both Motion A1 in the name of my noble friend Lord Thomas of Gresford and Motion B1 in the name of the noble and gallant Lord, Lord Craig of Radley.

As the noble Lord, Lord Alton of Liverpool, just pointed out, several noble and learned Lords and noble and gallant Lords have already articulated the case for Motion A1 very cogently. I do not propose to speak to that in any detail, because they have already made the case, as did the Member for Wrexham, Sarah Atherton, in the other place.

If there was only one Minister who was keen to keep service justice the way it is and for issues of murder, manslaughter, domestic violence, and so on, to be kept in the courts martial system, that suggests, as my noble friend Lord Thomas of Gresford pointed out, that the Minister perhaps does not share the same views as the Secretary of State. Clearly, it is not the job of your Lordships’ House to persuade the Minister to come clean on her personal view; she is clearly speaking for the Government. However, if there is perhaps some difference of opinion within the MoD, might it be possible for the Minister to think again and for her to persuade Members of the other place to think again? The cases that have been put forward—the words of Johnny Mercer MP and the report brought forward by the Defence Committee of the House of Commons—are compelling.

I suggest that Motion B1 is in some way superior to what the Government are asking us not to agree with—that we do not go with the amendment that we voted on and approved on Report. At that stage, the amendment just talked about the Secretary of State, but that is slightly ambiguous. Which Secretary of State? The assumption implicit in that amendment was that it was the Secretary of State for Defence. However, on Report, the noble Viscount, Lord Brookeborough, pointed out that the situation was vital in Northern Ireland, and there it would not be necessarily be the Secretary of State for Defence that mattered so much as the Secretary of State for Northern Ireland. The new amendment makes clear the import of what we had intended in the first place, all the way back at Second Reading and in Committee, that central government should be brought within the purview of the Bill.

The Minister says that this is about ensuring that key policymakers have the right information. She seemed to imply that this related only to local government, housing associations, local health providers—that is, people providing health, education and welfare support that come under the Bill. But surely that relates also to central government. In particular, it relates to all parts of central government. It does not just relate to the Secretary of State for Defence, particularly if he is caught up some blind alley. It also relates to the Home Secretary. We have already heard about some aspects of what might appear to be issues related to the military being passed over to the Home Office. Surely it is not adequate for the Secretary of State for Defence to report annually to the other place if what we need is the Home Secretary to bear in mind the needs of veterans and service personnel, particularly those who served in Hong Kong, or maybe the Gurkhas.

There is a need for the Bill to apply to central government as well as to local government and other authorities. I urge the House to support Motion B1 as well as Motion A1.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I support Amendments A1 and B1. I will not go into the legal arguments around Amendment A1: the noble Lord, Lord Thomas of Gresford, the noble and learned Lord, Lord Thomas of Cwmgiedd, and others have spoken about many of the legal reasons why this would be an improvement, and we wish the Government to think again on it. I say to the Chamber that review after review has said to the Government that the civilianisation of murder, manslaughter, rape and these charges would be of immense benefit. It is review after review after review; not just one review and then another review says something different, but review after review after review.

In what I thought were devasting comments in the other place—as the noble Lord, Lord Thomas of Gresford, pointed out—the Minister responsible for the delivery of these policies agreed with the amendment that was put. You sometimes wonder what parallel universe you live in when all the evidence and all the points put forward support the amendment, only for it to be resisted by the Government. I ask the Minister—who frankly even in her remarks today went further than she has in some of our other debates—to reflect on that. The reviews and now Johnny Mercer MP in the other place say that as well.

Can the Minister clarify the statistics for us? The statistics quoted by Johnny Mercer were 16% but, as the noble Lord, Lord Thomas, pointed out, the Minister quoted a much different figure. I think it was around 50%—to be fair, I cannot remember the exact figure. I think we would all be interested in this House in how that figure was arrived at, what the sample size was, and what length of time it was done over. This is an important amendment. I am very pleased to support Amendment A1, as outlined by the noble Lord, Lord Thomas of Gresford.

I ask the Minister: is there is any update on where we have got to with the defence-wide strategy for dealing with rape and serious sexual offences within the service justice system? Is there any further news about when we can expect that?

I also want to briefly say something about this. I say this as my last comment on these issues around the service justice system. Significant numbers of cases continue to be raised by Sarah Atherton and by many of the other members who continue to serve. We read about it in our newspapers. We need to reflect on the fact that case after case is brought forward. This would be a way for the Government to restore confidence in the system and in the way that these issues are dealt with.

In supporting the amendment from the noble and gallant Lord, Lord Craig of Radley, I point out to the Chamber that again this is something that the Royal British Legion sees as of immense importance and that needs to be done. It is something that would improve the situation.

Just recently, on 6 December, the Government published the draft statutory guidance for the covenant. It lists the responsibilities on healthcare authorities, the responsibilities on local authorities, the responsibilities on every single public body you could virtually think of except the Government themselves. I say to the Minister that I have never been convinced in any shape or form that the people of this country would believe that a covenant between the state and the people would exclude the national Government. I just do not believe that people, whatever the rights and wrongs of it, would understand that. The perception of it, apart from anything else, is something that undermines that.

I appreciate what the Government have done in the Bill in terms of placing a legal duty on everyone, but I wonder why it places a legal duty on everyone but the national Government themselves and I ask the Government to think again on that.