The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, as so often, noble Lords have taken a great interest in the operation of the courts martial, and I welcome the opportunity to discuss the subject today. I am grateful for the careful thought that the noble Lord, Lord Thomas of Gresford, has given to the changes that he believes would improve the system and increase public confidence in it. Before turning to the detail of the amendments, I should emphasise a couple of important general points.
First, we must not lose sight of the fact that the service justice system has some carefully constructed differences from the civilian justice system for a particular and important reason, which is the maintenance of operational effectiveness. I will elaborate on that a little later.
Secondly, although he did not emphasise this today, I note that the noble Lord himself has stated in this House that he has confidence in the service justice system. If I read his concerns correctly, his main one is about public perception. He explained in Grand Committee that his proposals were intended to give the public more confidence in the findings the court martial makes. My noble friend Lord Attlee made an important point on this, because it would also appear that members of the Armed Forces have confidence in the system: some 67% of those who responded to the Armed Forces Continuous Attitude Survey for 2015 think that the service discipline system is fair. This is comparable with—indeed a little better than—the level of confidence in the fairness of the civilian criminal justice system, for which the most recent Crime Survey for England and Wales recorded a figure of 64%.
Amendments 1 and 2 seek to change three important aspects of the court martial system: the system of majority verdicts; the confidentiality of the votes of the lay members of the court martial on guilt or innocence; and the role of the lay members in deciding sentence. Amendment 1 would change the law governing decisions of the court martial on findings of guilt or innocence.
As I explained in Grand Committee, the system of simple majority verdicts in the court martial is long established—the noble Lord, Lord Thomas, took us through the history. The service discipline Acts of the 1950s, which preceded the Armed Forces Act 2006, also provided for simple majority verdicts. The system allows conviction or, notably, acquittal by simple majority of the lay members of the court martial. Before the lay members consider their verdict in a case, the judge advocate directs them, if at all possible, to reach a unanimous verdict, but they are not obliged to return a unanimous verdict. The judge advocate’s direction provides a considerable safeguard against the lay members moving too easily to a majority decision. However, if they cannot reach a unanimous verdict, a simple majority is enough to convict or to acquit. An equality of votes results in acquittal.
The noble Lord, Lord Thomas, reminded us that I said in Grand Committee that the great advantage of reaching a decision by majority is that it avoids a hung jury. I also pointed out that there is no need for a retrial in the event of a lack of unanimity or a qualified majority. I was grateful for the insights into the Scottish system given to us by the noble and learned Lord, Lord Hope. Where there is a hung jury in the Crown Court, the accused is in limbo until they are retried or the case against them is dropped, and there could be a period of several months between trials.
The benefits of the court martial system are not simply those I have indicated—nor incidentally, are they about cost, which I think the noble Lord, Lord Thomas, implied. It has been accepted by the European Court of Human Rights that there are good reasons why, in a system of military justice, it is necessary to avoid a hung jury. The period of limbo between trials could have a negative impact on the unit concerned: there has historically been a clear military imperative to deal with transgressions swiftly to restore discipline. Further, if an accused is tried twice and then acquitted, all of their unit are likely to know that they were acquitted only second time around. The concern has always been, and remains, that this and the period of limbo between trials could ultimately affect operational effectiveness.
I understand that there are those who have questioned the fairness of simple majorities. But I remind the House that the Government have been successful in establishing, both in the European Court of Human Rights and in the civilian courts, that the court martial system is in principle safe, independent and impartial. The current system for majority verdicts has been considered twice in the last five years by the Court Martial Appeal Court—including the case of Sergeant Blackman, incidentally—and was on both occasions held to be fair and safe.
The Court Martial Appeal Court, which is made up of the same judges who sit on the civilian Court of Appeal, has held that there is no ground for deciding that a verdict by simple majority of the lay members of a court martial is inherently unfair or unsafe. The court noted, among other points, that the overwhelming majority of criminal trials in England and Wales are decided in magistrates’ courts and the process of simple majority verdicts is long established in those courts.
I note that the noble Lord’s amendment would appear to concede that simple majority verdicts are not unfair or unsafe in principle, because it would continue to allow a court martial panel with three lay members to return a simple majority verdict of two to one. I accept that the most serious cases may not be tried by a court martial panel of three lay members, but it is important to note that the Court Martial Appeal Court took the view in the Twaite case that there is no reason to conclude that a simple majority finding is safe for minor offences but not safe for serious offences.
The second aspect of the court martial system which Amendment 1 would change is the confidentiality of lay members’ deliberations. Subsection (3) of the proposed new clause would require the president of the lay members to state in open court the number of panel members dissenting where the majority finding is that the defendant is guilty. Under the existing rules, where there is a majority verdict in the court martial, whether for guilt or acquittal, neither the absence of unanimity nor the voting figures are recorded or announced. This avoids the problem of a dissenting minority calling into question the verdict of the majority in any particular case.
In the Crown Court, although it will be known that a defendant has been convicted by a majority verdict, and how many jurors dissented, the number of those dissenting can only ever be very small. Were there to be the same transparency in respect of verdicts of the court martial, the dissenting minority would always be more significant, proportionally, than the dissenting minority in a Crown Court verdict. The concern is that this could lead to the verdict of the majority being called into question.
The second concern about exposing the deliberations of the lay members of the court martial is that one of the important safeguards of their independence is the confidentiality of their deliberations. This safeguard is in place to produce a fair trial process. For that reason, the Armed Forces Act 2006 makes it an offence to disclose information about the confidential deliberations of members of the court martial. I explained those in some detail in Committee. In the Government’s view, the confidentiality of lay members’ deliberations should not be compromised unless there is a compelling case to do so. We are not convinced that there is a compelling case for requiring voting figures to be disclosed.
I hope that noble Lords will appreciate that there are good reasons for maintaining the current system. However, the Government are always keen to consider carefully whether improvements could be made to it. With that in mind, I can reassure the noble Lord that the Government are prepared to review the current arrangements for majority verdicts, with a careful look at the implications of doing anything differently and taking into account the views of key stakeholders, including the single services, the Service Prosecuting Authority and the Judge Advocate-General.
We will need to consider a number of options; indeed, the noble Lord himself has identified two. The suggestions he made in Committee differ from those made in this debate. Should it be considered necessary to amend legislation, we would seek to find an early opportunity to do so. I will report back to the House on the outcome of the review, which is likely to be in the new year.
I turn to Amendment 2 and the very significant change it would make to the role of lay members of the court martial in sentencing. I should explain that there is an important difference between the role of a lay member in the court martial and that of a juror in the Crown Court. In the Crown Court, the jury’s role is limited to findings of fact, and sentencing is a matter solely for the judge. In the court martial, the lay members determine innocence or guilt and, together with the judge advocate, vote on the most appropriate sentence. In the case of an equality of votes on sentence, the judge advocate has a casting vote.
Lay members vote on sentence in the court martial because the military context, and service experience, are highly relevant to sentencing. Judge advocates are civilian judges. They are the experts on sentencing law and practice and accordingly give directions to the lay members about sentencing law. The role of the lay members in voting on sentence reflects the fact that the court martial is part of an overall system of justice and discipline for the Armed Forces. The lay members of the court are serving members of the Armed Forces with command responsibility. They have a very important role to play in sentencing because they are the experts when it comes to applying the special statutory sentencing principles that apply to service courts. Those principles are closely based on the civilian sentencing principles but, in addition, include “the maintenance of discipline”, the reduction of “service offences”, by which I mean service discipline offences such as looting and absence without leave, and criminal offences.
As I previously explained in Grand Committee, these principles reflect special aspects of the service justice system. For example, military context may be relevant to sentencing: an assault against a person of superior or inferior rank may make an offence much more serious; and what might otherwise be a relatively minor case of theft may in fact have a very significant effect on morale and discipline—as with “mess deck theft” in the Royal Navy.
It is for these reasons that lay members need to have direct involvement in sentencing. Because the maintenance of discipline is fundamental to the Armed Forces, it is vital that those considering what punishment to award should have a comprehensive understanding of the effect on discipline and good order of various kinds of offending. That is why the panel is comprised of service personnel with experience of command and the exercise of service discipline at a sufficiently high level to assess the actions of those who appear before it in the court martial, in the appropriate command and disciplinary context.
The Government therefore continue to believe that the views, advice and experience of the judge advocate and the panel blend very well together so that the most appropriate sentence can be delivered; and, further, that the role of the lay members of the court should not be limited to mere consultation with the judge advocate—they should continue to vote on the sentence.
Lord Empey (UUP)
Before the Minister sits down, he has indicated that the Government are going to conduct a review, but there is a conflict between what the noble Earl, Lord Attlee, and the noble Lord, Lord Thomas of Gresford, are saying with regard to the public confidence issue. I personally have never been confronted with that issue. As a serving officer, the noble Earl, Lord Attlee, is in the same position. It might be helpful if the Government carried out some inquiries into the level of confidence. I am unaware of any problem. Clearly, as the noble Lord indicated in proposing this amendment, there is a lack of confidence, but I do not know the basis of that or where it is to be found.
Earl Howe
The noble Lord makes a very important point. This is certainly one of the factors that will need to be looked at in detail. If there is justification for changing the system, we will need to look at all the reasons that have been advanced for such changes. I agree with the noble Lord that we need to get to the bottom of whether there is a lack of public confidence in the way the system currently works. I can undertake that that will be part of the scrutiny we will conduct.
Lord Thomas of Gresford
My Lords, on that point, I gave a whole series of instances in Committee, which I have not repeated this evening. Let me give just two. I was involved in the Baha Mousa case, and as a result of the acquittals the Government set up an inquiry that lasted three years and took a lot of evidence, at great cost, in order to find out what went wrong.
I happen to have a room overlooking Old Palace Yard, and I hear every demonstration that takes place outside. During the Sergeant Blackman case, there were demonstrations in Old Palace Yard by serving as well as retired military people. I have never come across such a public demonstration against the result of a trial, even in very controversial cases. In Committee, I cited the case during the miners’ strike involving the murder of a taxi driver with a concrete block, in which I prosecuted. There was no public demonstration after that; but there seems to be a public demonstration after every controversial military decision. That includes newspapers beyond the Daily Mail, which of course carried out—and is carrying out—a campaign in the Blackman case.
The argument that the system is for the maintenance of discipline, and that we should have courts martial for that purpose, was the argument used in 1926 in the debate, to which I referred, to try to retain capital punishment for cowardice. The same arguments were advanced—that if you do not have the death penalty hanging over you, you will never go over the top or face military confrontation.
The noble and learned Lord, Lord Hope, referred to the Scottish system and the fact that there are no retrials. Personally, I think it is an argument for another day to weigh whether a not proven verdict is more satisfactory than having a retrial. To my mind, a not proven verdict leaves individual defendants in limbo.
Having made those comments, I welcome the fact that the Government are prepared to carry out a review of the current arrangements, and I shall await its results with considerable interest and anxiety. In my view, something has to be done. I have personal experience of courts martial and what happens as a result of them.
On sentencing, I would not be arguing the point if we were concerned only with service discipline, such as absent without leave charges, desertion or even mutiny. The trouble is that Section 42 of the 2006 Act brings into the purview of courts martial murder, manslaughter and rape—the most serious cases imaginable. To my mind, it is wrong that there should be a divergence from the rest of society in the way that a small but important group are tried and treated, particularly given that there are groups in the rest of society that require precisely the same discipline as the Armed Forces. However, I do not propose to pursue these matters to a vote, and I beg leave to withdraw the amendment.
(10A) Regulations under subsection (10)—(a) may not make provision corresponding to provision which may be included in regulations made by the Lord Chancellor under section 31A, 33, 33A, 46A or 47 of the Court Martial Appeals Act 1968;(b) may confer power to make regulations corresponding to the power in section 31A, 33, 33A, 46A or 47 of the Court Martial Appeals Act 1968 only if they provide that a statutory instrument containing such regulations (whether alone or with other provision) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
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.
(9A) Regulations under subsection (9)—(a) may not make provision corresponding to provision which may be included in regulations made by the Lord Chancellor under section 31A, 33, 33A, 46A or 47 of the Court Martial Appeals Act 1968;(b) may confer power to make regulations corresponding to the power in section 31A, 33, 33A, 46A or 47 of the Court Martial Appeals Act 1968 only if they provide that a statutory instrument containing such regulations (whether alone or with other provision) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
Earl Howe
My Lords, I fully understand the concerns that lie behind these amendments but I hope that my response will explain why we do not think it necessary or appropriate to press them.
The first amendment in the group, Amendment 5, concerns four offences: sexual assault, exposure, voyeurism and sexual activity in a public lavatory. The amendment would require a commanding officer to refer to the service police for investigation every allegation which would suggest to a reasonable person that one of these offences may have been committed by someone under his or her command. It would therefore remove from commanding officers the ability which they currently have in very limited circumstances to ensure that an allegation or circumstances are appropriately investigated without involving the service police.
It is the first of the offences covered by the amendment—sexual assault—and how allegations of that offence are investigated and handled within the Armed Forces which has been the main focus of attention in this debate. For the avoidance of doubt, I make it clear that the Armed Forces Act 2006 provides that a commanding officer does not have any role in investigating allegations of almost all the sexual offences on the statute book, including rape and assault by penetration. Allegations or circumstances which indicate to a reasonable person that any of these offences may have been committed by someone under their command must always be reported by a commanding officer to the service police. That is an absolute rule.
I also make it clear that commanding officers are already under a statutory duty to ensure that all allegations which indicate that a service offence may have been committed, including the offences covered by this amendment, are properly investigated. This means that, where a commanding officer becomes aware of an allegation of any of the offences covered by this amendment, he or she must consider whether it would be appropriate to report it to the service police. If it would be appropriate to report it, it must be reported.
The statute, however, should not be our only source of reference. The manual of service law makes it very clear to commanding officers that if there has been an allegation of one of these offences, they must take legal advice about whether it would be appropriate to call in the police. Access to legal advice is available 24 hours a day and seven days a week. The manual also makes it clear that there is a presumption that allegations of such offences will normally be reported to the service police. This duty on commanding officers to ensure that allegations are investigated appropriately means that it will rarely be appropriate—I stress rarely—for the commanding officer not to report an allegation of sexual assault to the service police.
The reason why the Armed Forces Act 2006 did not go further and require commanding officers to report to the service police every single allegation of sexual assault, or the other offences covered by this amendment, is that those offences cover such a wide range of conduct. For example, the offence of “sexual assault” makes any sexual touching without consent a criminal offence. “Sexual” can include conduct that may not in some circumstances be sexual but which, in the particular circumstances of the case, a reasonable person would consider sexual; for example, an arm around the shoulder may fall within the offence. The provision in the 2006 Act recognises that, given the width of these offences, there may be cases involving the most minor infringements that may be better handled other than by automatic police investigation. The 2006 Act recognises that this may also be the case for offences other than those covered by this amendment. For example, an investigation other than by the service police will in many cases be appropriate for disciplinary offences under the 2006 Act.
I hope that noble Lords will therefore understand that it is because of the very wide range of conduct that these offences cover that it may be appropriate, in limited circumstances—I underline that phrase—for commanding officers to investigate allegations. Those circumstances are, in practice, further limited by the fact that the service police can and do act on their own initiative—for example, where they are approached by a victim or a witness, where they come across an offence while patrolling, or where the civilian police have been involved and pass the case to the service police.
Other proposals in the Bill, in Clauses 3 to 5, will mean that in future, where the service police investigate an allegation of, for example, sexual assault, they will have to refer the case straight to the Director of Service Prosecutions for a decision on whether to bring charges and, if so, what those charges should be. That is a change from the current position, under which charges are instead referred back to the commanding officer. However, I recognise that, for some, our existing policies and procedures do not go far enough. They argue that we should use the opportunity presented by this Bill to amend Schedule 2 to the Armed Forces Act 2006 so that all allegations of sexual assault, and the other offences covered by this amendment, must be referred to the service police. In fact, the 2006 Act provides a mechanism for amending Schedule 2. Section 113 of the Act provides that the Secretary of State may amend Schedule 2 by secondary legislation, subject to the affirmative procedure, so primary legislation is not needed to make the change proposed in the amendment.
Against that background, I inform the House that the service justice board, chaired by the Minister for Defence Personnel and Veterans, has decided that the time is right for a fresh look at this issue, taking on board the arguments for the existing position and the views expressed in both Houses and by external organisations such as Liberty. The necessary work has been set in hand. My noble friend Lord Attlee made some very valid observations, and I assure him that the points that he raised under this heading will be addressed in the review. Any changes to Schedule 2 that may be needed can be made through secondary legislation, subject to the affirmative procedure. The review is likely to take until the end of the year, and I will report the outcome to the House in due course.
The second amendment in this group, Amendment 6, would create a legal obligation to publish data about allegations of sexual assault and rape. It would impose an obligation which is not currently imposed on other civilian authorities—although they publish such information on a regular basis. As noble Lords may be aware, in Committee of the whole House in the other place, the Minister spoke on this subject and made it quite clear that he wanted improvements in the data that we publish and that he was considering how best to publish the data as an official statistic. That is very definitely the Government’s intention. Given that commitment, I reassure noble Lords that the work to achieve this is well in hand. I have recently written to the noble Lord, Lord Touhig, on this subject, and it may be helpful if I share the information in that letter with the rest of the House.
In my letter, I explained that the Government aim to publish, by the Summer Recess, statistics about sexual offences that have been dealt with by the service justice system during the 2015 calendar year. The statistics will cover those cases where the service police have been the lead investigating agency and where the service justice system retained jurisdiction of the case throughout. To meet the standard for formal publication of these statistics, we clearly must put in place the necessary policies and procedures to ensure that the data are robust and consistent as we move forward. That work is in hand and encompasses three main components of the service justice system: the service police, dealing with the investigation of the crime; the service prosecuting authority, dealing with the cases referred; and the military court service, which lists the cases and reports on outcomes.
With regard to investigations, the crime statistics and analysis cell within the Service Police Crime Bureau will provide information on all sexual offences investigated by the service police. This will be broken down by service and will further detail the offence type, the gender of the victim or suspect, the location by country and the outcome of the investigation, such as whether the suspect was referred to the service prosecuting authority. To ensure greater consistency with Home Office police forces and assurance of data, the service police will have a crime registrar. The responsibilities of that post will include the development, implementation and monitoring of crime-recording policies, procedures and programmes and their application, to ensure high standards of data integrity and accuracy.
On prosecutions, the service prosecuting authority will provide data relating to the numbers of referrals that it has received for all sexual offences, which will again be broken down by service and offence type. The service prosecuting authority will also provide information on the numbers of those then charged with the offence referred, whether the person was charged with an alternative offence, or whether the case was discontinued.
Finally, the military court service will be responsible for providing information on the numbers of cases heard at court martial which involve sexual offences. This will again be broken down by service and will include both pleas and findings.
We intend to publish all these data on an annual basis. They will be supported by explanatory information to provide the reader with an understanding of the SJS and some context for the information. As mentioned earlier, we aim to produce the first set of these statistics by the Summer Recess, and they will be posted on the GOV.UK website in a format that is easy to read and print.
In the light of this and my assurance to return to the House on the matter raised in Amendment 5, I hope that the noble Lord, Lord Touhig, will feel comfortable about withdrawing his amendment.
Lord Touhig
My Lords, we have had a short but very good debate, with some very well-founded comments. The comments made by the noble Lord, Lord Berkeley, about confidence were very important. In my view, the best way to get confidence is transparency. The noble Earl, Lord Attlee, raised wider issues about the complaints covered by the amendments. He is right, and the Minister has indicated that the review that will be carried out will cover the kind of things that he is concerned about. We certainly welcome the Minister’s response to this debate. It has showed, from Committee to Report, that the Government have listened, taken on board the views of colleagues all around the House, and are prepared to act. They should have our full support, and I beg leave to withdraw the amendment.
Earl Howe
My Lords, I welcome the continued interest of the noble Lord, Lord Judd, in the recruitment of under-18s into the Armed Forces and I hope that I can now provide a considerable measure of reassurance to him and other noble Lords who have spoken. Let me start by addressing Amendment 7.
As I said in Grand Committee, we are very clear in our belief that junior entry offers a range of benefits not only to the Armed Forces and society but to the individual, providing a highly valuable vocational training opportunity for those wishing to follow a career in the Armed Forces. The provision of education and training for 16 year-old school leavers provides a route into the Armed Forces that complies with government education policy. I strongly maintain that it also provides a significant foundation for emotional, physical and educational development throughout an individual’s career.
The majority of under-18s recruited into the services are recruited into the Army. Without in the least belittling the concerns raised by the noble Lord, Lord Judd, and other noble Lords, to which I shall turn in a moment, the Army needs to attract school and college leavers at the earliest opportunity and in sufficient volume. They fulfil around 15% of the Army’s inflow requirement. Junior entry provides a suitable training route for these younger recruits, most of whom attend junior entry courses at the Army Foundation College, Harrogate. The training offered is viewed as attractive to both potential recruits and their parents, delivering vocational education, leadership and initiative training as well as the core military syllabus.
A number of noble Lords stressed the importance of promoting the life chances of young recruits. That is exactly why we would not wish to deny young people the chance to start training for a career in the Armed Forces when they are of school-leaving age. To do so might deprive them of the opportunity they need to get away from difficult social circumstances and acquire new skills and social discipline before it is too late to adapt.
On the subject of life chances, noble Lords may be aware of the recent media story about Danny Cousland. Danny applied to join the Army at 16 and attended the Army Foundation College at Harrogate. At 19 he served in Afghanistan and was later recommended for officer training. Earlier this month, on completion of his training at Sandhurst, he was awarded the Sword of Honour at the Sovereign’s Parade as the top-performing cadet. It is important to note that on the eve of his passing-out ceremony, this fine young officer said that had it not been for joining the Army he would be dead or in prison.
Of course we recognise that not all those recruited under the age of 18 find that they are suited to life in the Armed Forces. This is why the Armed Forces regulations enable a person under the age of 18 who is serving in the Armed Forces to leave as of right.
Amendment 7 implies a concern that under-18s are disadvantaged in terms of education in comparison to their civilian peers. I really cannot agree with that. The junior entry route fully complies with the Education and Skills Act 2008, and it offers young people another avenue to meet the requirement to continue in education, start an apprenticeship or traineeship, or work while in part-time education or training.
The Army places great importance on education, as does each of the services. It is committed to enabling all its personnel to improve their literacy and numeracy skills, and to ensuring that they have the literacy and numeracy skills needed to undertake training, be operationally effective and be well placed to take advantage of professional and career opportunities. All soldiers are required to reach minimum literacy and numeracy standards for promotion: national level 1 standard for promotion to the rank of corporal, and level 2 for sergeant and above, and for selection for an LE officer commission. The Army’s target is for all soldiers to have attained at least level 1—GCSE grade D-G equivalent—literacy and numeracy standards, ideally within three years of joining the service. Attainment of these standards is measured through holding the appropriate national functional skills—English and maths—qualifications or their recognised equivalents.
To repeat what I said in my letter to the noble Lord, Lord Judd, we are very careful to ensure that we comply with children’s legislation, and, of course, the Ministry of Defence contributes to the Government’s periodic reports, with evidence about the recruitment of under-18s, to the UN Convention on the Rights of the Child. The noble Lord raised concerns about our duty of care for under-18s, and, again, I would like to put my written comments on the record. We take our duty of care for under-18s joining the Armed Forces extremely seriously: we recognise that their care and welfare require particular attention. Our safeguards are therefore robust, effective and independently verified. For example, Ofsted inspects the training environment and uses the common inspection framework—the national framework for inspection of post-16 education and training—to comment on the standard of initial training in the Armed Forces.
The first amendment in this group, Amendment 7, would require the Secretary of State for Defence to report annually on military service by under-18s. Such reports would have to evaluate the effects on the individual, and on the Armed Forces, of the enlistment of under-18s. Let me say something about the Armed Forces covenant. Its principles state that those who serve in the Armed Forces, whether regular or reserve, those who have served in the past, and their families, should face no disadvantage compared with other citizens in the provision of public and commercial services. This is the basis on which the Defence Secretary provides an annual report to Parliament.
The difficulty I have with the noble Lord’s proposal is that there is no reliable evidence that those who serve in the Armed Forces while under the age of 18 suffer any specific disadvantage compared with other service people, or indeed to their peers in the civilian population. The amendment would oblige us to treat those who joined under the age of 18 as a separate category, possibly throughout their service. I continue to maintain the position that that is not an appropriate distinction to build into legislation. I am sorry to disappoint the noble Lord on that count.
The second amendment in the group, Amendment 8, deals with the enlistment process. It would introduce a formal literacy test as part of the criteria for enlisting those under the age of 18. I am pleased to be able to assure noble Lords that such changes to the Armed Forces Act 2006 are unnecessary. There are two reasons for this. The first is that great care is taken to explain the terms of enlistment and to ensure that the precise nature of the commitment is fully understood by potential recruits. This is in the best interests both of individuals seeking to join and of the service in which they have chosen to serve.
I would like to make it clear that in the case of those aged under 18, the process includes ensuring that the parents or guardian of each potential recruit also understand the nature of the commitment. Throughout the recruitment process, parents or guardians are given comprehensive written and oral guidance on the terms and conditions of service as well as the rights of discharge. It is only after this process has been followed that written consent from a parent or guardian for their child to enter service will be requested.
Selection for the services does not rely just on the completion of forms. Individuals undergo a series of interviews and practical tests, including in numeracy and literacy. All Army applicants without level 2 literacy and numeracy qualifications or their equivalents undergo an assessment of their reading, writing, speaking and listening, and mathematical skills as part of the recruiting and selection arrangements. Those candidates assessed as being below the Army’s minimum recruit entry standard may be deferred and directed to local further education colleges or similar organisations to improve their skills.
The second reason why we do not need to change the 2006 Act is that legislation is already in place to safeguard the enlistment of persons into the Armed Forces, and it makes special provision with respect to the enlistment of under-18s. Under Regulation 7 of the Armed Forces (Enlistment) Regulations 2009, a recruiting officer is unable to enlist any individual, including those under 18, unless that officer is satisfied that the individual understands the terms on which they are to serve and is fit to be enlisted. If an enlisted person thinks that their enlistment was invalid, the regulations allow them to apply to the Defence Council for a determination that their enlistment was invalid. Where the enlisted person was under 18 at the time of enlistment, such an application may be made by a parent or other appropriate person. On that basis, I hope that the noble Lord will agree to withdraw his amendment.
Earl Attlee
My Lords, I do not have any strong views on the merits of Amendments 9 and 10. However, I am extremely concerned about how long we have been engaged in very difficult operations in Afghanistan and Iraq. We were engaged in operations there for year after year; thankfully, that level of engagement has ceased. Many service people were doing multiple six-month operational tours in their career and we simply do not know what the long-term effect of that will be.
If mental illness arises in a veteran, it will be extremely difficult to be certain as to what caused it. Amendment 9 refers to it being “caused by” military service, but I am sure that in many cases the clinicians will not know what caused it, even though they will be sure that the patient is mentally ill. My great fear is that, because of the amount of operational tours that we have undertaken—with people undertaking multiple tours, as I said—we could have a much worse problem in future years than we thought we were going to have. So, looking longer term, we need to be careful about carrying out military operations that last a very long time.
Earl Howe
My Lords, both these amendments seek to address provision for the care and support of members of the Armed Forces who suffer from mental health conditions caused by service. The health of our Armed Forces community is hugely important to us all and I welcome the opportunity to set out the Government’s position again.
Turning first to Amendment 9, as I said in Committee, the Armed Forces compensation scheme—AFCS—already makes awards for injuries and disorders predominantly caused by service, including mental health conditions. The scheme is tariff-based and aims to make full and final awards as early as possible, so that individuals can have financial security and focus on getting on with life and living. Claims can be made while in service or when the individual has left. In cases where a disorder is not in steady state, prognosis is uncertain or treatment is ongoing or not yet begun, legislation allows an interim award to be paid at the most likely level. This award is then reviewed and usually finalised within 24 months of notification. Where, exceptionally, matters remain uncertain at review, the interim award may continue for a maximum of 48 months. If the disorder has improved and a lower tariff now applies, no recovery of benefit takes place, while if a higher tariff award now applies, the difference between the interim award and the final award is paid.
The AFCS tariff has nine tables of categories of injury relevant to military service—and they include mental health disorders. While the scheme has time limits for claiming, there is also a provision for delayed-onset conditions, including mental health diagnoses. The Ministry of Defence recognises that, owing to stigma and perceived impact on career, people may delay seeking help. The practical effect of this is that if a person who has left the Armed Forces some time ago is diagnosed with a mental health problem as a result of his or her service and makes a claim under the AFCS, a compensation award will be paid as soon as the claim is accepted. As a result of the recommendations made by the noble and gallant Lord, Lord Boyce, in his review of the AFCS, the Ministry of Defence increased the maximum lump sum award for mental illness from £48,875 to £140,000. This was to better reflect the impact of the most serious mental health conditions.
Broadly, the same mental health disorders are found in military personnel and veterans as in the general community—an exception being a lower rate of the most severe and enduring conditions such as schizophrenia.
Evidence-based effective interventions are now available for the common disorders, including PTSD. The treatments apply to both civilian and military contexts, with a high expectation of improved function, including return to work—especially if people are seen early.
In addition to the AFCS lump sum, the most serious conditions with likely limitations on civilian employability receive a tax-free guaranteed income payment—GIP. While in service, regardless of medical employability grading or being on sick leave, personnel retain their military salary. The GIP is paid for life and comes into effect on discharge from the services or from the date on which the claim is accepted. A lump sum of £140,000 attracts a GIP based on 75% of military salary, with enhancements for service length, age, rank and lost promotions.
Also as a result of the recommendations of the noble and gallant Lord, Lord Boyce, we established the Independent Medical Expert Group—the IMEG. The group—a non-departmental public body—includes senior consultants and academics and UK authorities on specialities relevant to military life, including mental health. It advises Ministers on the scientific and medical aspects of the scheme.
The noble and gallant Lord, Lord Boyce, also identified the need for further investigation into mental health. The IMEG therefore conducted a review that involved literature search and discussions with civilian and military experts and veterans’ organisations. The findings were published in its second report on 17 May 2013. The conclusions and recommendations on diagnosis, causation, assessment of disorder severity and the use of interim awards were accepted by Ministers and subsequently incorporated into the scheme.
The House will be interested to know that this year sees a further planned review of the AFCS, which began recently. The review is currently in the stakeholder engagement phase and has been approaching charities, claimants and other government departments. This quinquennial review will consider the scheme’s coverage and levels of awards, in particular for those most seriously injured, including those with mental health conditions. It is expected to report at the end of 2016.
The second amendment in this group would create a specific obligation on the Government to have particular regard, in their annual report on the covenant, to parity of esteem between mental and physical healthcare. The Government are absolutely committed to meeting the healthcare needs of the Armed Forces community. The Secretary of State has a statutory requirement to include in his annual Armed Forces covenant report to Parliament the effects of membership, or former membership, of the Armed Forces on service people in the field of healthcare under the covenant.
The healthcare we provide to our service personnel, both at home and deployed on operations, is truly world class. Last year, the principles of the covenant were enshrined in the NHS constitution for England. This gives a commitment to ensure that, as well as those serving in the Armed Forces, reservists, their families and veterans are not disadvantaged in accessing NHS health services in the area in which they reside.
Since 1953, priority access to NHS specialist services in Great Britain has been provided for service-attributable disorders, with no-fault compensation awards. In 2009, this was extended to include treatment for any disorder where a clinician recognises a causal link to service. Priority is decided by the clinician in charge, subject only to clinical need.
I should also mention further work on mental health. For mental health disorders, stigma and perceived discrimination in employment can act as barriers to access and engagement with care. This is not unique to the Armed Forces but common among men. In 2004, led by the Health and Social Care Advisory Service, the MoD, UK health departments, NHS and Combat Stress explored features of an effective veterans’ mental health service, piloting various service models in locations across the UK.
The evidence showed that while some veterans were not comfortable with clinicians who had no military experience, others were equally anxious to see only civilian health professionals. What seem to work best are multifaceted services, including healthcare, social support, benefits advice et cetera, delivered in an environment of cultural sensitivity and empathy. The pilots also confirmed that best-practice interventions work, with high rates of improved function and a return to a full life with contribution to family, community and work.
As a reflection of these findings, and of Dr Andrew Murrison’s Fighting Fit report, since 2010, a network of veterans’ mental health services has been established in England and Wales with special arrangements for veterans also established in Scotland. The Armed Forces covenant gives a commitment that veterans should be able to access mental health professionals who have an understanding of Armed Forces culture, and NHS England is currently completing an audit of veterans’ mental health services.
In service, there has also been increased focus on good mental health and well-being, with emphasis on prevention and protection through a chain of command lead. Mental health awareness is part of a through-life training strategy starting at basic training, with self-awareness and with annual refresher courses. There are then specific courses for those with leadership responsibilities. The courses cover: raising stress management; reduction of stigma; building resilience; early detection of problems in self and others; and specific pre-deployment, deployed and decompression measures. Trauma incident management teams and mental health nurses are now considered essential parts of a deployment package, and mental health first aid training to service personnel is being delivered by SSAFA in collaboration with Combat Stress, Mental Health First Aid England and the Royal British Legion.
I should add that there is no evidence of an epidemic of mental problems in military personnel—rather, levels of the common mental health problems in regulars and reservists are broadly similar to those of the matched general population, while levels of PTSD in some groups, and in relation to combat, are slightly but not markedly increased. Where service personnel become ill, help is available in primary care with, as required, referral and outpatient support from the 16 departments of community mental health across the UK. When, rarely, in-patient care is necessary, it is provided in eight dedicated psychiatric units, again located around the country.
I therefore assure noble Lords that the Government are committed to meeting the health needs of the service community. We will continue to report on the provision of healthcare in the Armed Forces Covenant Annual Report, and our work to address mental health needs will be an integral part of that report.
The principles of the covenant are to ensure that the Armed Forces community is treated fairly in comparison to the civilian population. Parity of esteem is there to ensure that all health services treat mental health with the same importance as physical health, and it applies to everyone accessing NHS services, not just the Armed Forces community. For this reason, I remain firm in the belief that it does not need to be legislated for under the covenant.
I shall write to the noble Baroness, Lady Jolly, on any of her specific questions that I have not addressed. However, given our clear commitment to support those who suffer from mental health conditions, and the tangible steps that we are taking, I hope that the noble Lord will agree to withdraw the amendment.
Lord Touhig
My Lords, this has been a short but very useful debate and I thank the Minister for his response. It is positive and is taking us down the right track to try and resolve these matters. He mentioned that the review of the Armed Forces compensation scheme is now at the stakeholder engagement stage, and I am sure he would welcome it if I passed on to the organisations that have been briefing me that they might have an input into this aspect.
The noble Baroness, Lady Jolly, was quite right to point out that Amendment 10 was in fact proposed in her name, with me as a supporter, although that is not how it appears on the Marshalled List. I note that the Minister has invited us to his department on 4 May to discuss the Armed Forces covenant. That might be the opportunity to raise the issue that the noble Baroness, Lady Jolly, brought up. It might also be an opportunity for my noble friend Lord Judd, who is no longer in his place, to come along and pursue these matters further. I do not wish to detain the House any longer. I am grateful for the Minister’s response and I beg leave to withdraw the amendment.
Earl Attlee
The Minister has not spoken yet. To tease the noble Lord slightly, with the benefit of hindsight, would he advise the junior marines who were defendants in the Blackman case to take their case to the Old Bailey? I do not think they would have got on very well.
Earl Howe
My Lords, I welcome the opportunity to restate the Government’s position on the further changes to the service justice system that the noble Lord, Lord Thomas, proposes. His intention with Amendment 11 is to extend the jurisdiction of civilian criminal courts in England and Wales by giving them jurisdiction to try members of the Armed Forces and civilians subject to service discipline for overseas acts that, were they committed here, would constitute sexual offences under the Sexual Offences Act 2003.
I apologise to the noble Lord, Lord Thomas, because I confess I am not clear what advantage the amendments would confer on the system as a whole. Noble Lords may be aware that service courts are already able to exercise jurisdiction in respect of acts committed overseas. Section 42 of the Armed Forces Act 2006 provides that a member of the Armed Forces is guilty of an offence under service law if they commit an act outside the UK that would constitute an offence under the law of England and Wales were it done here. If it is necessary to have a further conversation with the noble Lord after Report to clarify any misunderstanding that I have, I will be happy to do that.
Amendment 12 would give members of the Armed Forces accused of committing certain crimes overseas the right to elect to be tried by a civilian criminal court in the UK instead of a court martial. The crimes in question are those that the civilian criminal courts may try even if the event in question took place overseas. Those offences include murder, and would also include sexual offences if Amendment 11 were accepted as well. I note that Amendment 12 does not appear to propose that a member of the Armed Forces should have a right to elect civilian criminal trial in a case concerning conduct in the UK, where both the civilian courts and a court martial would have jurisdiction to try the case. I confess it is not immediately apparent to me why such cases should be treated differently.
Taken together, the effect of Amendments 11 and 12 would appear to be that while a service person who committed a sexual offence overseas could choose to be tried at a Crown Court rather than a court martial, a service person who committed the same offence in the UK would have no such choice. It is not clear why the amendment makes provision for electing civilian court trial only for conduct outside the UK, not in the UK.
The noble Lord may again not be too surprised to hear that we do not support these amendments. I said in Grand Committee in response to two very similar amendments tabled by the noble Lord that making the changes proposed would appear to imply that there may be reason to doubt the ability of the court martial to deal with sexual offences. I would make the same point about Amendments 11 and 12. Yet, as I said in Grand Committee, the service justice system has been scrutinised by the UK courts and by Strasbourg and it is now well recognised that the court martial system in the UK ensures a trial that is fair and compatible with the European Convention on Human Rights, both for investigations and prosecutions in respect of acts in the UK and for investigations and prosecutions in respect of overseas acts where the civilian police may not have jurisdiction. The Government believe that the service justice system, including the service police, the Service Prosecuting Authority and service courts, is capable of dealing with the most serious of offences and should be able to continue to do so.
The amendments would significantly undermine existing arrangements designed to ensure that cases are dealt with in the most appropriate court jurisdiction. In the case of offences which both the civilian criminal courts and service courts have jurisdiction to try, it is recognised that it is necessary to consider in each case whether the offence is more appropriately tried in the civilian criminal courts or in a service court. This applies not only to those offences committed overseas in respect of which the civilian criminal courts have jurisdiction, but also to offences committed in the United Kingdom which both the civilian criminal courts and service courts have jurisdiction to try. However, a decision on appropriate jurisdiction is rightly a matter for service and civilian prosecutors rather than the accused person.
There is a protocol between service and civilian prosecutors which recognises that some cases are more appropriately dealt with in the service system and others are more appropriately dealt with in the civilian system, particularly those with civilian victims. The principles of this protocol have the approval of the Attorney-General for England and Wales, and the Ministry of Justice. The protocol recognises that any criminal offence can be dealt with by the service authorities. The main factor in decisions on whether an offence is more appropriately dealt with in the civilian criminal justice system or the service justice system is whether the offence has any civilian context, especially a civilian victim. The protocol therefore provides for cases with a civilian context to be dealt with by the civilian criminal justice system. Where a case has a service context, it is important that the service justice system, which is specifically constructed to deal with that unique service dimension, is able to deal with the case.
Creating a right to elect of the kind contained in this amendment would override the existing protocol and could seriously undermine the service justice system. Many offences which involve conduct outside the UK will have a service context such that both service and civilian prosecutors would consider that they would be more appropriately dealt with in the service system. However, the proposed right of election could mean that a person accused of such an offence could make an election that led to their case being dealt with instead by the civilian criminal courts. We do not think this would be right. This is significant because the court martial is part of an overall system of justice and discipline, and the existing statutory provisions in the Armed Forces Act 2006 governing sentencing in the court martial reflect this. They are closely based on the civilian sentencing principles but include in addition, as I mentioned earlier, the “maintenance of discipline” and the “reduction of service offences”, which reflect special aspects related to the service justice system. In my response to Amendment 2, I touched on a number of these special aspects.
Allowing a case with a purely service context to be dealt with in the civilian system on the election of an accused therefore risks undermining the system of justice and discipline in the Armed Forces which the Armed Forces Act 2006 was carefully constructed to underpin. Where the prosecutor’s protocol indicated that a case should be dealt with in the civilian system—for example, a case in which the victim is a civilian—would the accused service person be able to override that and instead elect trial by court martial? We do not think that would be right. Furthermore, a right to choose which court should hear the case would open up the possibility of any co-accused making different elections, resulting in split trials in different systems with obvious implications for the efficient administration of justice.
There is another aspect to this, which the noble and learned Lord, Lord Hope, identified in Grand Committee and which it may be helpful for me to repeat here. The amendments are concerned with conduct overseas which is likely to be criminal under the local law as well as under service law. However, the authorities in states visited by our Armed Forces are commonly prepared to allow service courts to exercise jurisdiction rather than assert their right to try a case before their own civilian courts. A good example is Germany, where there is a very active and much-respected criminal justice system, but under the arrangements we have in place the German authorities are prepared to allow our service courts to exercise jurisdiction over cases with a service context.
Lord Touhig
My Lords, I will be very brief. When we considered an amendment very similar to this in Committee, I said that on this side we certainly welcomed the aspirations that motivated it—the noble Lord, Lord Hodgson of Astley Abbotts, tabled it at that time—but we certainly had doubts that it was the best way of dealing with reporting on civilian casualties. I fear that although this amendment is much more focused, as he mentioned, those doubts remain.
Of course it is right to report on civilian casualties caused by air strikes, but we should also be made aware of all civilian casualties, including those caused by the actions of ground forces. I can only repeat a key point I made in Committee when I stressed that reporting on civilian casualties is not an Armed Forces role alone but needs to involve the Foreign and Commonwealth Office and the Department for International Development. This is a matter for a cross-government approach that seeks an agreement on how to report on civilian casualties caused in a conflict in which our Armed Forces are involved. However, it must be done in a way that that gives everybody confidence, and such an approach must also ensure that we maintain operational security. That is important; I am not sure whether the noble Lord who has just spoken feels it is quite that important, but certainly that point was made, rightly, by the Minister in Committee.
We do not need primary legislation to achieve the aims of this amendment, but if the Government were minded to consult on finding a better way to embrace the aims of the amendment and to consult so that we could find a solution which we could all support on properly reporting on civilian casualties, we would certainly want to co-operate with them on that. However, this amendment is not the solution and we will not support it.
Earl Howe
My Lords, I begin by offering my apologies to the noble Baroness, Lady Smith of Newnham. If I have been guilty of failing to fulfil an undertaking to write to her on the questions she raised in Grand Committee, I will certainly look into that as a matter of urgency. I must also apologise to my noble friend Lord Hodgson for the delay in responding to his letter of last month. I can, however, tell him that a reply was dispatched to him today.
This amendment would create a legislative obligation on the Ministry of Defence regarding civilian casualties following military operations, including sharing the details of any investigations with Parliament. This would be inappropriate for several reasons, not least that each military operation is different, so respective arrangements are likely to vary, depending on which forces are involved. It also risks prejudicing the operational and personnel security of our Armed Forces.
First and foremost, I re-emphasise that the Government take the utmost care to avoid civilian casualties when planning and conducting any form of military operation. Every care is taken to avoid or minimise civilian casualties and our use of extremely accurate, precision-guided munitions supports this aim. By way of an example, the authorisation process for air strikes is extremely robust. All military targeting is governed by strict rules of engagement in accordance with both UK and international humanitarian law.
I will make absolutely clear that we will not use UK military force unless we are satisfied that its use is both necessary and lawful. This tried and tested process brings together policy, legal and targeting experts—and, of course, the men and women of our Armed Forces are highly trained, including in the law of armed conflict. After a strike has been carried out, we conduct a full review to establish what damage has been caused, specifically checking very carefully whether there are likely to have been civilian casualties.
The Government have always taken very seriously any allegations of civilian casualties. We have thorough processes in place to review such reports and will launch investigations where appropriate. We will continue to consider all available evidence to support such reviews, and the Defence Secretary has made a personal commitment that the department will review all claims.
In the event of a credible allegation of a civilian casualty, an independent service police investigation would take place. The department has a process in place to inform Ministers on a case-by-case basis, but this has not been necessary to date, given that we have had no confirmed incidents of civilian casualties in Iraq or Syria caused by UK action. We are also committed to updating Parliament with information regarding any confirmed civilian casualty caused by UK military action in Iraq or Syria.
Earl Attlee
Before the Minister sits down, he said that we have not caused any civilian casualties in Iraq. I take it that he is referring to current operations and not Operation Telic.
Baroness Smith of Newnham
My Lords, I am most grateful to the Minister for his very thorough response, and in particular for reiterating the care that is taken with the precision of UK targeting. It is very clear that the Minister and the Secretary of State have committed to informing us of any civilian casualties should they arise. Therefore, I beg leave to withdraw the amendment.