Armed Forces Bill

2nd reading
Tuesday 7th September 2021 Lords Chamber

Second Reading

15:17

Moved by

[Baroness Goldie]

That the Bill be now read a second time.

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

My Lords, it is a privilege to be speaking to the Armed Forces Bill this afternoon. Without this Bill, the Armed Forces Act 2006—the legislation that maintains the Armed Forces as a disciplined body—could not continue in force beyond the end of this year.

This Bill is for the Armed Forces. We have the best Armed Forces in the world; their professionalism and dignity has recently and vividly been displayed to us with the evacuation of over 14,500 people from Kabul airport to the safety of the UK. That draw-down operation was no easy undertaking, with the ever-present risk of attack and the emotionally charged, hostile environment that our service personnel found themselves operating within. It is their professionalism, integrity and resolute fortitude to get the job done that shone through.

The Government acknowledge their responsibility to the new arrivals from Afghanistan; as such, Operation Warm Welcome is fully under way to support and provide the necessary assistance where required. We owe an immense debt to those arrivals, and this Government are determined that we give them and their families the support they need to rebuild their lives here in the UK.

I acknowledge that many of us have questions about what has happened in Afghanistan. As the Prime Minister said,

“the events in Afghanistan have unfolded faster, and the collapse has been faster, than I think even the Taliban themselves predicted.”—[Official Report, Commons, 18/8/21; col. 1254.]

As the Defence Secretary said, “the die was cast” when President Trump struck a deal with the Taliban, paving the way for our exit. However, I reaffirm to your Lordships that we will now use every diplomatic and humanitarian lever at our disposal to restore stability to Afghanistan, and the Prime Minister has been clear that that will require a concerted and co-ordinated effort from the international community. None the less, this must not overshadow what our brave service personnel have achieved in Afghanistan, nor indeed their tireless efforts domestically at the forefront of the battle against the global pandemic. Therefore, I ask your Lordships to join me in commending and saluting their manifold accomplishments, and we can do that in tangible form by supporting this Bill.

This leads me to the integrated review. During the passage of the Bill in the other place, questions were raised over prospective reductions in service strength and, in turn, whether such reductions have negatively impacted our operational ability; for example, in Afghanistan. The integrated review is about the future; it is not about the past, and our military operations in Afghanistan are now at a close. Furthermore, it would be disingenuous to suggest that any variations in the overall Armed Forces strength figures could be directly and meaningfully linked to delivery of specific outputs. It is simplistic to say that there is a direct correlation between overall Armed Forces strength figures and capabilities. I reassure your Lordships that the UK Armed Forces continue to meet all their operational commitments, and we expect them to continue to do so, and our capability will be designed to meet a new age of threat.

Finally, before I turn to the Bill, I wish to say a few words about the recently published report from the House of Commons Defence Committee on women in the Armed Forces. I extend my gratitude to the members of that committee for their well-balanced and thoughtful report. I reassure your Lordships that we are giving the report serious consideration and the Ministry of Defence will publish its response soon.

Your Lordships will also be anticipating the outcome of the review led by Sir Richard Henriques, which was announced last year. We are very grateful for the comprehensive work Sir Richard has been undertaking. I expect to be able to update your Lordships in early course, and certainly in time for your Lordships to consider the matter during the passage of this Bill.

Without further ado, I now turn to the Bill. There is an Armed Forces Bill every five years to renew the legislation that governs the Armed Forces. This is currently the Armed Forces Act 2006, which contains nearly all the provisions for the existence of a system for the Armed Forces of command, discipline and justice. The requirement for renewal of the 2006 Act is based on the assertion in the Bill of Rights 1688 that the Army—and now, by extension, the Royal Air Force and the Royal Navy—may not be maintained within the kingdom without the consent of Parliament.

I wish to be quite clear that this Bill must pass to renew the 2006 Act by the end of this year, because current legislation does not provide for the 2006 Act to be extended beyond 2021. Your Lordships will understand that if we fail to effect that renewal, there would be serious consequences. For example, if the Act expired, members of the Armed Forces would still owe allegiance to Her Majesty and would have a legal duty to obey lawful commands, but there would be no penalties for disobeying orders or for other types of indiscipline. Service offences would cease to exist, commanding officers and service police would lose their statutory powers to investigate offences and enforce discipline, and the service courts would no longer function.

Discipline in every sense is fundamental to and underpins the existence of our Armed Forces. Indeed, it is the reason for their success in the discharge of their remarkable range of duties. That is why renewal of the 2006 Act is so important, and renewal is the primary purpose of this Bill. That is what Clause 1 provides for: the continuation of the 2006 Act for a year from the date on which this Bill receives Royal Assent. It also provides for renewal thereafter by Order in Council, for up to a year at a time, until the end of 2026. The Bill also provides us with a regular opportunity to update legislation for the Armed Forces.

I turn to service courts, summary hearings and jurisdiction. In 2017, in preparation for this Bill, the MoD commissioned an independent review of the service justice system to ensure that it continues to be transparent, fair and efficient. The review, led by His Honour Shaun Lyons, made a significant number of recommendations for improvement and this Bill deals with the small number that need primary legislation to be implemented, including changes to the constitution of the court martial and a power to correct mistakes, which is called a “slip rule”. Clause 7 deals with the issue of concurrent jurisdiction. For offences committed by service personnel in the UK, justice can be delivered through the civilian criminal justice system or the service justice system.

Importantly, the service justice system review found that the service justice system was fair and robust. But it also proposed that some of the most serious offences should not be prosecuted at court martial when they are committed by service personnel in the UK, except where the consent of the Attorney-General is given. To be clear, the review was not saying that the service justice system should stop dealing with certain categories of cases which occur in the UK. Rather, it was saying that, when such cases come up, controls should be introduced if they are to be tried in the service justice system. Meanwhile, jurisdiction would remain to deal with such cases overseas. I reassure your Lordships that the Government considered this recommendation fully and carefully and concluded that concurrency of jurisdiction must remain.

We have highly skilled, capable and effective service police, who have equivalent serious crime training to civilian police. They also follow procedures and processes used by civilian police, and, so far as investigations are concerned, are independent from the chain of command. Indeed, a process audit which was part of the Lyons review found that the service police have the necessary training, skills and experience to investigate any crime.

The Service Prosecuting Authority is headed up by a civilian, Jonathan Rees QC, who is a leading criminal silk and eminently qualified to lead the Service Prosecution Authority in prosecuting these and all types of offences. When he took up the position of director, he seconded, to lead on rape for the SPA, the former head of the Thames and Chiltern CPS rape and serious sexual offences unit, with all the experience and knowledge that brings. The judges who sit in the court martial are also civilians who frequently sit in the Crown Court. So we are confident that the service justice system is capable of dealing with all offences, whatever their seriousness and wherever they occur. But we agree that the current non-statutory protocols and guidance around jurisdiction must be clearer. That is why Clause 7 places a duty on the heads of the service and civilian prosecutors in England and Wales, Scotland and Northern Ireland to agree protocols regarding the exercise of concurrent jurisdiction.

We believe that such decisions on jurisdiction are best left to the independent service justice and UK civilian prosecutors using guidance agreed between them, but the Bill ensures that the civilian prosecutors will have the final say should a disagreement on jurisdiction between the prosecutors remain unresolved. I want to be clear here: this is not about seeking to direct more cases into the service justice system and away from the civilian criminal justice system or vice versa. It is about guaranteeing that both systems can handle all offending and are equally equipped to deliver justice for victims.

I turn to the Armed Forces covenant, which the Bill takes important steps to strengthen. Clause 8 imposes a duty to have due regard to the three principles of the covenant on certain public bodies across the UK. It is perhaps helpful to remind your Lordships of the three principles of the Armed Forces covenant: first, the unique obligations of, and sacrifices made by, the Armed Forces; secondly, the principle that it is desirable to remove disadvantages arising for servicepeople from membership, or former membership, of the Armed Forces; and, thirdly, the principle that special provision for servicepeople may be justified by the effects on such people of membership, or former membership, of the Armed Forces.

Clause 8 inserts new sections into the 2006 Act to impose the duty in each of the four nations of the United Kingdom. The new duty will apply where particular types of public bodies or persons are exercising certain of their public functions in key areas of housing, education, and healthcare, which are vital to the day-to-day lives of our Armed Forces community.

In the area of housing, the duty covers bodies that are responsible for developing housing allocation policy for social housing, homelessness policy and the administration of disabled facilities grants, which can be vital for injured veterans.

In education, we know that our service families sometimes face challenges, due to their service-related lifestyle, in accessing suitable school places for their children. Specific challenges may present themselves in relation to service children with special educational needs or disabilities—as it is described in England—when attempting to maintain continuity of provision to meet their needs. We know that some service children have specific well-being needs and this duty will target those who are responsible for this, ensuring that they understand and consider the specific needs of our community’s children.

In healthcare, much has already been achieved, but service families and veterans may still experience disadvantages, often caused by their mobility or healthcare requirements resulting from military service. This duty will apply to all bodies that are responsible for commissioning and delivering healthcare services across the UK.

At this point it would be useful to remind your Lordships that health, education and housing are all matters for which the devolved Administrations are responsible, and they are administered as best suits those nations. However, the Government have been delighted with the proactive support we have had from colleagues in the home nations for the covenant as a whole and for this legislation in particular.

Guidance will be crucial to ensure that bodies subject to the new duty understand the principles of the covenant and the ways in which members of our Armed Forces community can suffer disadvantage arising from service. Clause 8 provides that the Secretary of State may issue guidance in relation to the duties imposed to which those subject to the duty must have regard when exercising a relevant function, and he must consult with the respective devolved authorities where this is relevant, and other appropriate stakeholders, before issuing the guidance.

The Bill also provides for the covenant duty to be extended in the future. The Secretary of State may, by regulations, widen the scope of the new duty to include additional functions and bodies in other areas. However, before doing so, he would be required to consult the relevant devolved authorities and other appropriate stakeholders, and any amendment—this is important—would have to be made by way of affirmative regulations, requiring the express consent of Parliament.

Clause 9 deals with a new continuous service commitment that will enable members of a Reserve Force to volunteer to undertake a period of full-time or part-time service. This offers a more flexible suite of engagement options for reservists, incorporating seamless movement between full and part-time service under the Reserve Forces Act 1996, and empowers defence with greater freedoms to introduce further modernising changes to reserves commitment types.

Clause 10 creates a power to change the minimum time limit for submitting an appeal against a first-level decision in a service complaint from six weeks to two weeks. It also provides the ability to restrict the grounds on which someone can appeal. There are good reasons to make these changes.

Currently, the 2006 Act provides for a minimum time limit for submitting appeals of six weeks, and this is the time limit set in regulations. However, we believe that in most circumstances two weeks is adequate for someone to submit an appeal. Not all service personnel are engaged in the same type of work; many are engaged in roles such as working in offices, where a two-week deadline would be appropriate. This approach is in keeping with other public sector complaints systems. However, of course, we recognise that there are circumstances in which it would not be appropriate to restrict the time to appeal to two weeks, such as for those deployed on operational duties or those in poor health. In such cases, an extension can be sought.

We also need to ensure that people have good reason to appeal. Currently a complainant need only say that they are unhappy with the decision. We believe that appeals should be permitted only where there were procedural errors or where new evidence is provided that may change the outcome of the original decision. Where a complainant’s request to move a service complaint to the appeals stage has been deemed inadmissible, they are entitled to ask for a review of that decision by the Service Complaints Ombudsman.

Clause 10 and Schedule 3 are part of wider reforms to support service personnel through the complaints system, to increase efficiency and to reduce delay within the service complaints process. Other reforms, which do not require primary legislation, will provide guidance agreed with the Service Complaints Ombudsman on the criteria and grounds for appeal, early access to an assisting officer, mandated offers of informal resolution, easy-read guides for complainants and respondents, and improvements to forms for lodging complaints.

We have to ensure that we modernise and reduce delay in the service complaints system, creating where we can a consistent experience across defence, and following best practice from other parts of the public sector. It is crucial that our service personnel feel confident that complaining will not adversely impact on them. Therefore, complaints must be dealt with appropriately and in a timely fashion to build that trust further.

Clause 11 amends the 2006 Act to create a new regime for complaints against the service police and related matters. It does so by establishing the service police complaints commissioner and enabling the creation of a regime for complaints, conduct matters and death or serious injury matters which is modelled on the regime for the civilian police in England and Wales. The clause also contains powers that will enable provision to be made in relation to both super-complaints and whistleblowing, which will be modelled on the regime for the civilian police in England and Wales.

The new independent service police complaints commissioner will oversee the new complaints regime and will carry out investigations into the most serious allegations against the service police. The commissioner will also have overall responsibility for securing the maintenance of suitable arrangements for making complaints and dealing with other serious matters. The creation of this new oversight regime brings the service police into line with their civilian counterparts.

The Bill also addresses sentencing and rehabilitation. It would enable the court martial and the Service Civilian Court to disqualify offenders from driving in the UK and deprivation orders to be made in the service justice system. The Bill also makes some minor technical adjustments to the rehabilitation periods for reprimands.

Finally, among the main provisions in the Bill are steps to right the wrongs of the past which ensure that posthumous pardons for those who were convicted of historic service offences relating to their sexuality also apply fully to convictions under older legislation governing the Army and the marines.

This Armed Forces Bill makes important changes to the service justice system, bringing forward the sound recommendations of the Lyons review that require primary legislation. The Bill ensures that our service justice system remains fit for purpose, and, importantly, it will strengthen the legislative basis of the Armed Forces covenant to help ensure that those who serve and have served, and their families, are treated with fairness and respect in the communities they serve.

I look forward to the detailed scrutiny which we shall give the Bill in Committee and I commend it to the House.

15:38

[Lord Coaker (Lab)]

My Lords, I thank the Minister for her usual clear and helpful introduction to this legislation, which the House will appreciate. It is a privilege to speak for Her Majesty’s Opposition on this Armed Forces Bill, so I join the Minister in her comments.

The Armed Forces Bill provides Parliament with an essential opportunity every five years not only to renew the legal underpinning for the Armed Forces but to examine how we can improve the lives of, and protections and support for, personnel and their families through legislative change. I make it clear that Her Majesty’s Opposition stand firmly behind our brave service personnel and their families, and we strongly believe that the law should be on their side. That is why I say to the Minister that we support the principles behind the Bill and indeed the Bill itself, and welcome steps to create a legal duty to implement the principles of the covenant and the key elements of the Lyons review.

However, there are many both in and outside the House who believe that the Government could and should go further. Therefore, our main priority will be to work with others cross-party to improve the legislation where appropriate and to challenge the Government on certain points in order to seek further clarity. Our forces communities are themselves determined that the Bill should not be a missed opportunity, so we will bring forward amendments in good faith to reflect these calls where we believe the Bill could be strengthened.

First, we need to place the Bill in context. The UK is currently facing a rapidly changing security environment, threats are multiplying and diversifying, democracy itself is under pressure and technology is changing warfare for ever.

As the Minister acknowledged, we also debate this legislation on the back of the Afghan withdrawal. Afghanistan, whatever the rights and wrongs, has demonstrated how quickly situations can change, with serious consequences for the UK and our allies. I join the Minister and, I know, everyone across the House in noting the bravery of our personnel and their professionalism during the evacuation, which has been incredible and, once again, awe-inspiring. Alongside them were embassy staff, diplomats and many other personnel, including many of our Afghan colleagues who stayed with us until the end. We are used to this brilliance, but we must never take it for granted. We thank them for everything they have done and recognise that our troops are a great source of pride for our country, as they should be.

However, as the Minister herself acknowledged, we cannot escape what has happened, as withdrawal has raised questions about the future and what the Government’s Global Britain actually means, nor how the trauma of recent scenes will not end for our personnel and Afghans now that the main evacuation is over. As I said, we owe them a huge debt of gratitude, along with a moral obligation to continue to support serving personnel, veterans and former local staff. Combat Stress pointed out recently that, not unexpectedly, perhaps, calls to its helplines doubled in August. In the light of that, we will work with the Minister to suggest where the Bill may be strengthened and, in particular, to look to ensure how the Ministry of Defence continues to provide additional mental health support for those who have been affected by the Afghan withdrawal.

As we turn to the Bill, I am reminded that sometimes the Government’s rhetoric may not match the reality of their actions. The Prime Minister promised not to cut personnel, but the integrated review defence Command Paper is a plan for 10,000 fewer troops. The overseas operations Act promised to end repeat investigations, but focused only on prosecutions, not shoddy investigations, nor a duty of care for troops.

We need to ensure under the Armed Forces covenant that the law fits what we all want to achieve. The Bill introduces “due regard to principles” of the covenant, but what will that mean in practice. How will it be measured? What will enforcement look like? What redress is there for Armed Forces personnel who feel let down? Many of us, including me, would argue that this commitment needs to be broadened. At the moment, it focuses only on healthcare, housing and education. Of course, all of those are important, but the Government need to ask themselves: why not social care, why not employment, why not pensions or, indeed, immigration?

That oversight has been raised by not only people such as me but many service charities and organisations. The Army Families Federation said:

“This limited scope will address only a small proportion of the disadvantages that Army families face”,


while the Royal British Legion said that the scope should be widened to include all matters affecting the Armed Forces community. Help for Heroes said that, as many issues of vital concern to veterans will be excluded, the Bill risks creating a two-tier covenant.

I am sure that the Government will point to proposed new Section 343AF, which allows the Secretary of State to add later by regulation other policy areas and additional persons and bodies to which the “due regard” principle applies, but how often will that be reviewed? What will the consultation process look like?

I was also surprised to see that, while the Bill creates new responsibilities for a wide range of public bodies, from school governors to local authorities, central government is not included. I remember that the noble Lord, Lord Kirkhope, for example, questioned that oversight during the Afghanistan debate late last month. Why are Ministers not including central government within the Bill?

The Armed Forces covenant represents a binding moral commitment between government and service, but also between the public and our Armed Forces and communities, guaranteeing them and their families the respect and fair treatment their service has earned, suffering no disadvantage. That is why the scope of the legislation must be wide enough to ensure that all areas of potential disadvantage are addressed, and we will be tabling amendments to probe the Government’s thinking.

What about the Government’s stated objective to improve the service justice system, ensuring that personnel have a clear, fair and effective route to justice wherever they are operating? That is on the back of the Lyons review, which, as the Explanatory Notes state, was carried out with the aim of ensuring the service justice system's effectiveness. We welcome efforts to implement key recommendations of the Lyons review, particularly the creation of an independent service police complaints commissioner, which will ensure greater oversight and fairness in service justice cases. But the Government should clarify—to be fair, the Minister attempted to do this in her remarks—why they have not adopted the Lyons recommendation that civilian courts should have jurisdiction in matters of murder, rape and serious sexual offences committed in the UK. The Minister will know that the MoD’s own figures show that between 2015 and 2019, the conviction rate for rape cases tried under courts martial was just 10%, while, during the same period, the conviction rate was 59% in civilian courts, with considerably more cases being tried each year.

Indeed, in evidence in other place, the Victims’ Commissioner, Dame Vera Baird QC, said:

“Rape and sexual assault are hugely under-reported, and it is all the harder to report something when you are inside a system that is hierarchical and you may be jeopardising your own career”.


The report from the Sub-Committee on Women in the Armed Forces, chaired by Sarah Atherton MP, stated:

“We do not believe that the problems highlighted by the Lyons Review in the handling of sexual offences in the Service Justice System have been fully resolved.”


Again, we will need to explore the Government’s thinking on that in Committee. Therefore, we will be seeking an amendment to the Bill to ensure that court martial jurisdiction should no longer include rape and sexual assault with penetration, except where the consent of the Attorney-General is given. Given that reports such as the Wigston review have highlighted unacceptable levels of sexism, we shall be looking to see how we can strengthen the Bill in that area.

There are many other amendments under which we will seek to pursue the Government and to clarify their thinking in later debates: visas for Commonwealth and Gurkha veterans; a review of the number of people dismissed or forced to resign from the Armed Forces due to their sexuality; the role of Reserves, which I am sure that the noble Lord, Lord Lancaster, will touch on, given his excellent report; and building on the creation of a representative body for the Armed Forces.

Finally, the Minister highlighted those who were dismissed in the past because of their sexuality. I think all of us in this House welcome the Government’s commitment to do something about that. It was a historic wrong which has been too long in the undoing, and I think we would all compliment the Government on doing something about that, but there are many other important issues that we need to discuss.

Her Majesty’s Opposition remain wholeheartedly committed to working across the House to doing all we can for our Armed Forces. Our service communities deserve nothing less. I know that view is shared by everyone, so let us work together to try to achieve it.

15:49

[Lord Thomas of Gresford (LD)]

My Lords, I associate these Benches with the tributes paid by the Minister and the noble Lord, Lord Coaker, to the expertise and professionalism of the British forces in the recent withdrawal from Afghanistan.

In February 1997, Lance-Sergeant Alexander Findlay of the Scots Guards, a veteran of the Falklands campaign and the Battle of Mount Tumbledown, successfully appealed to the European Court of Human Rights against his conviction for assault. Suffering from PTSD, he had held members of his own unit at pistol point and threatened to kill himself and them. The court held that the constitution of courts martial in the UK was such that they were not an independent and impartial tribunal, as required by Article 6.1 of the European Convention on Human Rights. The march to reform the system had begun. I declare my personal interest as chair of the Association of Military Court Advocates.

This Bill means that we have nearly reached the conclusion of that march. I pay tribute to the excellent review of His Honour Judge Lyons, who comprehensively covered the ground and made recommendations on the composition of the panel that tries these cases, including on numbers, on the need for more than a simple majority to convict and on the extension of membership to chief petty officers and their equivalent. He also proposed that a board need not be of single service composition in general discipline matters. I raised all these issues as amendments to the then Armed Forces Bills of 2006, 2011 and 2016, in step with the evidence given to the Commons committees by the highly experienced former Judge Advocate-General Jeff Blackett. Something once bitterly opposed by the Ministry of Defence, under Governments of every stripe, is now seen as uncontroversial and commonplace; I am grateful to the Government for that and to the noble Baroness, Lady Goldie, for the way in which she opened this case and has been open to discussion and consideration of these proposals.

The one recommendation of Judge Lyons that the Government rejected is that court martial jurisdiction should no longer include murder, manslaughter and rape when these offences are committed in the UK except when the consent of the Attorney-General is given. The judge thought it important enough to make it his first recommendation. In 2006, I moved an amendment to negative this novel extension of jurisdiction, introduced in the then Bill. My excuse for quoting myself is that my remarks were quoted in Judge Lyons’s review. I said:

“The purpose of my amendments is to maintain the present position. The present position traditionally has been that if a serious offence of treason, murder, manslaughter or rape is committed in the United Kingdom, as opposed to abroad, by a soldier or serviceman or a civilian subject to service discipline, those offences cannot be tried by way of court martial but can be tried only in the Crown Court”—


that is if the offences are committed in the United Kingdom. I continued:

“That is the position today. For some reason, which has not been adequately explained, although I have pressed the matter both in Committee and on Report, the Government think that it is right to extend the jurisdiction of the court martial court to encompass any criminal offence.”—[Official Report, 6/11/06, cols. 599-600.]


I lost the Division by 63 largely Liberal Democrat votes to 165 Labour votes. The Conservatives abstained.

What, then, is the reason given by this Government to reject Judge Lyons’s primary recommendation to restore the pre-2006 position: that cases should normally be heard in the civilian courts, as they always used to be? If a really exceptional case arose, an application could be made to the Attorney-General to transfer it to the court martial system; I suggest the possibility that a manslaughter case involving the failure of equipment or the exigencies of training might be such a case. I had a look at the justification given by Mr Leo Docherty in the other place in answer to the Labour amendment. He suggested:

“If the AG had to give consent, the process would be slower … there would be no easy way to transfer that case to the civilian system.”—[Official Report, Commons, 13/7/21, col. 251.]


The noble Baroness, Lady Goldie, tried to expand on his explanation by suggesting that it shows confidence in the service system if it can try everything. I do not think that is the right position. I am not aware of any case of a murder committed in the United Kingdom and involving service personnel that has been tried by court martial since 2006.

However, on rape, the Government’s position has been completely undermined by the Defence Sub-Committee’s report Women in the Armed Forces, published on 25 July—barely a month ago—and to which the noble Lord, Lord Coaker, referred. As it happens, the review was chaired by my own Member of Parliament, Sarah Atherton—the only Conservative in recorded history ever to represent the constituency of Wrexham. She said:

“Sexual assault and rape are amongst the most serious offences committed against female service personnel … It is difficult not to be moved by the stories of trauma, both emotional and physical, suffered by women at the hands of their colleagues. A woman raped in the military often then has to live and work with the accused perpetrator, with fears that speaking out would damage her career prospects … From our evidence, it is clear to us that serious sexual offenses should not be tried in the Court Martial system. It cannot be right that conviction rates in military courts are four to six times lower than in civilian courts. Military women are being denied justice.”


To underline those comments, Judge Lyons’s review contains a telling statistic: in 2017, of the 49 charges of rape preferred before a court martial, there were two convictions. This means that up to 47 victims and their families have been failed by the system. What does that do for the recruitment and retention of women soldiers? I leave it to your Lordships’ imagination. It undermines the trust and public confidence on which the whole criminal justice system, whether military or civil, depends.

Here, we have a number of factors coming together. Giving jurisdiction to courts martial to try murder, manslaughter and rape charges for offences committed in the UK was an aberration introduced by the Labour Government in 2006. It is not a hallowed part of service history. The Conservative Party did not support it at the time. In considering this Bill, the Labour Party has called for its removal in the other place. The jurisdiction has not been utilised, save for rape cases in a highly unsatisfactory way. As I said, the Conservative chair of the Defence Sub-Committee, after the investigation, stated:

“Military women are being denied justice.”


She is right. The Government, which cannot give a sensible explanation for its retention, should heed the voices from Wrexham and follow Judge Lyons’s recommendation.

Another issue that remains is that of sentencing. I have argued during the passage of each Bill that sentencing is a complex process resulting in varying disposals. I suggest again to your Lordships that it should be left to a professional judge to determine sentence, not to a panel whose members may well be making such a decision in respect of a defendant for the one and only time in their lives. Whereas they can impose sentences of up to life imprisonment, magistrates with lengthy experience of the judicial system can do no more than pass a sentence of 12 months. It is true that, these days, a judge sits in on and participates in the decision, but he does not have a casting vote.

Of course I pay tribute to our armed services—they are very close to all our hearts in this House—but we must have a justice system that is perfect. We have moved strongly in that direction. My noble friends Lady Smith of Newnham and Lady Brinton will deal with the important aspects relating to the military covenant, while the noble Baroness, Lady Garden, will deal with pensions. I fully support what they will say.

16:00

[Lord Astor of Hever (Con)]

My Lords, I welcome the Armed Forces Bill 2021 and support the principle of strengthening the Armed Forces covenant in law. As the Lords Defence Minister at the time, I was responsible for the passage through this House of the Armed Forces Bill 2011, which received Royal Assent in November 2011. It amended the 2006 Act, most notably by requiring an annual Armed Forces covenant report to be presented to Parliament—which has been done each year since. Following the present Government’s manifesto commitment, this Bill makes provisions to further incorporate the Armed Forces covenant into law. I very much welcome the Government’s stated support for this position, and I am grateful to Poppyscotland for the briefing that it sent me.

Maximum advantage should be taken of this golden opportunity to enhance the delivery of the covenant to the Armed Forces community and ensure that it is fit for purpose for the next 10 years. During the consideration of the Bill by the Commons Select Committee, a wide range of oral and written evidence was received from those who regularly work with the Armed Forces covenant, often daily. They included Armed Forces charities, representatives of local and devolved governments, the Veterans Commissioners in Scotland and Northern Ireland, and the Local Government and Social Care Ombudsman. The committee also undertook its own online survey of the Armed Forces community. The evidence repeatedly highlighted the desirability of the Bill being enhanced, and in particular the need to apply the same legal standard to national government as would be applied to local government.

Members of the Armed Forces community access public services through national, devolved, regional and local bodies, so it is important that there is a consistent approach, so that all public bodies recognise their responsibilities under the covenant. However, the Bill as introduced largely applies only to local government and some education and health bodies. National government should be subject to the same legal standard on the covenant that it seeks to apply to councils.

Many of the policy areas in which members of the Armed Forces community experience difficulty are the responsibility of national government or are based on national guidance provided to other delivery partners. This is particularly relevant to ensure that serving personnel, for whom many services are the responsibility of the MoD, benefit from the Bill’s provisions along with the rest of the Armed Forces community. I also suggest that the Scottish Government, in addition to Scottish councils and certain public bodies, should be within the scope of the new “due regard” duty. Many issues affecting Scotland’s Armed Forces community are the responsibility of the Scottish Government. Without the application of the Bill’s covenant provisions to all aspects of devolved government, national policies developed in Scotland will not be subject to the duty of due regard, as will be the case at the local level. On this point, I welcome the view expressed by the then Scottish Government’s Minister for Parliamentary Business and Veterans in evidence to the Select Committee, indicating that he would be content with such an expansion.

The overwhelming backing for widening the Bill’s scope would suggest that improving the Bill in this way would be an uncontroversial step for the Government that would command widespread support and consensus.

16:04

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I too welcome this Bill. I wish to speak about the service justice system, and in particular the courts martial. It is important that we put this on a firm and clear basis, because the bravery of our Armed Forces, shown recently in particular in Afghanistan, demands no less. I therefore welcome the recommendations and their acceptance by Judge Lyons in matters such as the type of majority that is required for a court martial jury to convict, and also the slip rule. These are welcome and have been long advocated by Judge Jeff Blackett, who did so much to bring the courts martial system into line with the ordinary courts.

However, I too take the view that the best solution would have been to adopt the recommendation of Judge Lyons in relation to the concurrent jurisdiction point. I will say nothing about two factors which are important, namely the independence of the investigation and the experience of prosecutors, until we have the report of Sir Richard Henriques. That is crucial to these issues and I would be grateful if the Minister could indicate when it might become available.

Two critical matters do arise at this stage. First, why do we retain special juries in serious cases in respect of murder and sexual offending for the military? These were abolished in the rest of our justice system many years ago and it is difficult to see why they should be retained, save in exceptional circumstances. Why is a member of the Armed Forces not entitled to the protections that the rest of us have? It will be interesting to hear what the Minister has to say about that fundamental point. Secondly, I assure the House that sentencing is an incredibly difficult exercise that requires a great deal of experience. There is therefore no reason for differentiating the court martial system from the ordinary justice system. I very much hope that the Minister will think again on these points, and I look forward to speaking in support of what it has been indicated that the Opposition might move in relation to Judge Lyons’s recommendation.

Perhaps I may say two words about the proposed solution to the concurrent jurisdiction issue. First, if this is the route we go down, it will be easier to see whether the details have been got right when we see the report of Sir Richard Henriques on the matters. There are three matters that I will briefly mention. The first is the question of supervision or the provision of factors that should influence the protocol. We are delegating very considerable powers to two law officers. Should Parliament consider setting into the Bill the factors that they should take into account, or should Parliament approve the protocol? Secondly, the choice of jurisdiction is quite unlike the choice of a prosecutor as to whether to prosecute or not. I respectfully ask the Minister to consider whether there should not be a right of appeal to a judge of the Court Martial Appeal Court if the defendant or the complainant feels that the wrong choice has been made. This seems to be a far preferable route to seeking judicial review of the prosecutor’s decisions.

The third point, which is possibly a technical mistake in the Bill, is that the protocol will deal only with offences committed in the United Kingdom. However, there is concurrent jurisdiction for certain offences, wherever they are committed, murder being the clearest example. Therefore, if we are to go down the protocol route, it seems to be a technical error to have left out dealing with the issues in relation to the commission of serious offences overseas. I merely put on the record that this was one of the issues that arose in the Blackman case, and it is accepted that that trial could have been conducted if a different decision had been made in the ordinary courts of the land—just as any British citizen accused of murder can be tried here. This is a problem that should not be left out of the Bill. It is not dealt with satisfactorily at present.

16:09

[The Lord Bishop of St Albans]

My Lords, I too want to pay tribute to our Armed Forces. In repaying their service, it is right, as the Armed Forces covenant states, that

“those who have served in the past, and their families, should face no disadvantage compared to other citizens”.

I welcome the provisions in the Bill enabling greater legal enforcement of the covenant in achieving this parity.

At the same time, however, the Government must pay attention to the unique working environment of military service and the accompanying higher risk prevalence of a variety of health-related issues that occur both during active service and when readjusting to civilian life. Numerous studies over the years have identified a higher prevalence of alcohol misuse in military service personnel compared with the general population. The Ministry of Defence explicitly recognised this reality back in 2016 when it introduced the AUDIT-C questionnaire for alcohol screening during routine dental inspections by defence primary health care dentists.

Despite this positive public health approach in the past, last year I asked the MoD about the success of its existing programmes in the military to stem gambling-related harm. I was surprised by the response that it had seen no evidence that service personnel were more prone to problem gambling than any other group. I am tempted to say that it cannot have looked very hard. There is a raft of studies from the United States of America analysing the gambling habits of both serving personnel and veterans. Those studies have found far higher rates of pathological gambling and lifetime gambling disorder in both those serving and in veterans, and in both genders. Based on this evidence, the United States of America introduced screening for gambling in Section 733 of the 2019 National Defense Authorization Act.

Of course, the conditions that give rise to problem gambling and the nature of the addiction itself may differ between the UK and the USA, but that alone does not mean that the possibility of higher than average levels of gambling disorder in the military can be dismissed. One of the few UK studies of problem gambling, from 2018, using data from the 2007 Adult Psychiatric Morbidity Survey, recorded UK veterans as being eight times more likely to be problem gamblers than the general population—a trend that broadly mirrors those found in the United States of America.

Currently, little research has been done on the gambling habits of serving UK personnel but, since similar trends in UK veterans and their American counterparts have been found, there is good reason to believe that the gambling habits of American service personnel broadly correlate to those in the UK. In fact, the UK has had a much more relaxed attitude to regulating online gambling. If ever research were undertaken into the gambling habits of UK service personnel, it is likely that it would reveal levels of gambling disorder that exceed those in the USA military. I believe that screening for gambling disorder is as important as screening for alcohol misuse. Both are destructive; both ruin lives.

It is part of our care for those who go into these dangerous situations and are put under huge psychological pressure that we screen them and make sure they have proper support. For this reason, I am minded to table amendments to the Bill in Committee including provisions that mirror those the USA already uses when screening for various disorders in the military, including gambling disorders.

On a final note, I simply want to add my support to the Government in not forgetting those who served their country and have long since passed, and I welcome the extension of posthumous pardons for now abolished service offences.

16:14

[Lord Browne of Ladyton (Lab)]

My Lords, I echo other noble Lords’ words of support for and admiration for our Armed Forces. I have the highest regard for those who serve. From their work on the front line of the pandemic to operations around the world, such as Operation Pitting, daily they earn our admiration and deserve our gratitude. As my noble friend Lord Coaker has so clearly and articulately explained, Labour has made clear at every stage of the Bill that it is our intention that they be given the support they need and deserve, both during service and thereafter. It is the Government’s duty to look after the Armed Forces. As my noble friend said, and as has been echoed, the Armed Forces Bill presents this Parliament with its best opportunity to improve the lives of our service personnel, veterans and their families, and it should not be allowed to become a missed opportunity.

For that reason, my Labour colleagues and I support the principles that underpin the Bill. There are welcome steps in the Bill, including the creation of a legal duty on public bodies to have regard to the principles of the covenant, but I too urge the Government to go further. That is why, in the other place, Labour put forward amendments to strengthen the Bill so that it offers the support and protection identified as needed now by many of our service personnel. Disappointingly, all of them failed to attract government support, and I was appalled to read in the debates the disrespect with which some of these amendments were treated by the Minister who predominantly responded for the Government.

The legal duty to have regard to the principles of the covenant imposes new legal responsibilities which appear, certainly in the main, to apply only to councils and some limited public bodies delivering certain aspects of housing, health and education. As has already been said—I commend the noble Lord, Lord Astor of Hever, who made a persuasive and compelling case for the principal point I wish to make here—it would appear that these amendments do not apply to the Government; they are absent from this commitment. In moving an amendment that placed the same legal responsibilities for the Armed Forces covenant on central government, my honourable friend Stephanie Peacock in the other place asked the Government to show leadership in at least holding themselves to the same standard that they are imposing on others.

Interestingly, the Bill, which was published in January, was the subject of a substantial piece of work by the Government, on 21 January, on the pages of the Government’s website aimed at those who are entitled to the protection of the covenant. A four-page document entitled Armed Forces Covenant—Proposed Legislation was posted. On page 2, under the heading “aims of the legislation” the Government’s stated that it was intended

“to increase awareness among service deliverers and policy makers of the unique obligations and circumstances facing the Armed Forces Community”.

Service delivery and policy—not alternatives, but complementary purposes. So I ask the Minister, for whom I have the most enormous regard, just how it is hoped that the legislation will increase awareness among the relevant policymakers if it does not apply to them? Or were we to infer from her words about the devolved Administrations that it applies to policymakers in the devolved Administrations but not to policymakers in our own Government? Either the Bill needs to be amended to meet the Government’s own aims, or, in all honesty, they must go back to those web pages and erase the reference to policymakers, because it is not served by the Bill.

In July, leading military charities joined together to urge the Government to improve the Bill by extending its scope to make sure that greater protections are given in employment, pensions, social care and immigration—issues that are currently affecting the Armed Forces community—and the Government’s response was to vote down attempts to do just that. At the same time, some Afghanistan veterans struggling with the scenes of chaos in Kabul and of the unchallenged Taliban seizure of power across the country have had their own trauma from their experiences come back to them, but this time, in the context of a public narrative of failure.

Many young soldiers involved in a Kabul evacuation operation will need different forms of counselling in the coming months, but published targets for mental health care for members of the Armed Forces community are routinely missed. A formal review of the standards of mental health care available to service personnel was called for; the Government did not agree in July, but should now consider it, in the face of the evidence that is emerging. I regret also that the Armed Forces Minister James Heappey, in unforgiveable errors yesterday, has done nothing to instil confidence that the Government have a grip on this important issue.

Finally—I apologise for slightly overrunning the advisory time—I plan to revisit an issue I raised first on the overseas operations Bill and signposted that I might return to in this Bill, which is the protection and guidance that Armed Forces personnel need to ensure they comply with the law, including international humanitarian law, and explaining how international and domestic legal frameworks need to be updated, all because of the use of novel technologies that could emerge from or be deployed by the Ministry of Defence, UK allies or the private sector, which is now routinely deployed with our Armed Forces in overseas operations as part of multinational force deployment. On this point, I commend the Minister and her officials for their generous and helpful engagement with me and other noble and noble and gallant Lords on the complexity of these issues since I first raised them. That discourse will continue and I am grateful for it.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

My Lords, the next speaker will take part remotely. I call the noble Baroness, Lady Brinton.

16:20

[Baroness Brinton (LD) [V]]

My Lords, I will focus my speech on Clause 8 on the covenant. I support the comments made by the noble Lords, Lord Astor and Lord Browne. The creation of the covenant is a serious and enduring undertaking by Ministers and Parliament on behalf of the people of our nation, who understand the sacrifice that we are asking of those serving and their families when they undertake the obligations of protecting our nation and our interests in the world. It is vital because it also recognises that those sacrifices continue beyond the time that they serve, understanding that many of our veterans and their families also face barriers to living what the rest of us would regard as a normal life.

As health spokesperson for my party from these Benches, I will particularly raise the difficult and sensitive subject of the practicalities of delivering the covenant for access to health services, especially but not only mental health. Over recent weeks, I have talked to family and friends who are current or former service personnel deployed in Afghanistan and Iraq. The recent shocking events in Afghanistan have brought back the most difficult memories and experiences for many of those who made sacrifices for us and, they believe, for the Afghan people. For some, their PTSD has been retriggered; for others, there is a sense of helplessness about whether their deployments and the sacrifice of friends’ lives and health over the past 20 years were worth it.

Our service personnel, being ever practical, always just accept the order to “fill their boots”—service speak for “Go ahead and carry on with the task”—and they do. Here, I give a special shout out to the Sandhurst Sisterhood, which has worked tirelessly using and finding contacts to help senior Afghan women at high risk from the Taliban to get to safety. I mention it because much of the recent publicity has focused on our servicemen and far too often we forget that women were deployed to Afghanistan too. They suffered injury, physical and mental, and some did not come home at all.

The long-term mental health difficulties that many service personnel face are intended to be covered by the covenant, with responsibilities for our clinical commissioning groups, GPs and secondary hospital sector. The Minister, in her usual gracious way, helpfully explained the new duty in this Bill for housing, education and health, but the reality is that this new duty is only to “have due regard”, and without any similar duty for central government it is unlikely to be able to be delivered. It does not put a duty on those public services to actually provide the help that is needed. No duty and, as important, inadequate funding from central government mean that, too often, for individual current or former service men and women the covenant is not being fulfilled.

Combat Stress has said that it has had a doubling in calls to its 24/7 helpline from veterans struggling with their mental health. Its specialist clinics are hearing veterans say, “When we went there, we fought a war. Friends died, we struggled, we got blown up, and now they’ve given the country away.” One veteran, Dean, has attended 13 military funerals since he left the Army in 2008, including eight killed in Afghanistan; the others have subsequently taken their own lives. Dean said:

“it just feels as though it was all for nothing.”

Combat Stress is partnering with the NHS on Op COURAGE, but it struggles to support more than 1,600 veterans with severe complex needs a year. Some 75% of Combat Stress’s funding is from voluntary donations, and it believes that there are at least double the veterans needing this key expert service. We know that NHS mental health services are very stretched with extremely long waiting lists at the moment, so the capacity of local services to provide support is limited without guaranteed extra funding.

This last month has reminded all of us of the long- term problems that too many service men and women face. After Afghanistan moves out of the headlines, the covenant’s specialist health services commitment will probably be needed for the rest of our veterans’ lives. It must be a statutory duty, properly funded, including covering central government, to ensure it is not just lip service. I ask the Minister: what costings have been made for the help support needed under the covenant? Will the Government provide that funding?

Finally, in the debate on Afghanistan in August in your Lordships’ House, I said that the Armed Forces covenant needed to be extended to those who served alongside our troops in Afghanistan. The interpreters and members of the Afghanistan army who have been given the right to resettle here under ARAP stood and fought alongside our troops and faced exactly the same dangers. This group should also be able to access the services under the covenant in the same way.

The covenant is a key part of the duty of care that we owe our service men and women. They have and do fill their boots without question. It is time that Ministers, Parliament and our nation filled our boots to deliver a covenant that really works for the men and women who keep us and our world safe.

16:26

[Lord Mackay of Clashfern (Con)]

My Lords, I thank the Minister for the very clear way she introduced this very important Bill. I join those who have spoken already very eloquently in thanking the Armed Forces. Sometimes that is particularly important on issues that they may feel have not been particularly successful. I think of those who gave their lives in Afghanistan and those who suffered very serious injuries there. Today they sometimes wonder just exactly what it was for. I do not know whether your Lordships are always able to answer that question; I must say that I find it quite difficult to know, except in relation to the idea of keeping out of existence a safe place for the development of terrorist organisations.

I associate myself very much with all that has been said in appreciation of the Armed Forces. We are extraordinarily in debt to the Armed Forces of the Crown and those who support them in every possible way. The Armed Forces covenant is some token of that. It is important that it is sufficiently specific to make it really worth while. For example, it is questionable whether it will be successful without incorporating central government, with its policy responsibilities, into the three principles mentioned that apply to local authorities to come up with possible results. Why they should not apply also to central government and the devolved Administrations I do not feel confident to answer, but I look forward to hearing an answer from the Minister in due course.

This Bill is an important reminder of the principle of our constitution that the Armed Forces of the Crown are not authorised by a statute that has no end. The statute that authorises the existence of the Armed Forces is one that always has a terminus. That is an important part of our constitution, and the need for this particular Bill is a very important reminder of that.

The last thing I want to say is that in relation to the previous Bill—the veterans Bill—the noble Lord, Lord Dannatt, and his colleagues pointed out the very difficult situation that some members of the Armed Forces have encountered as a result of experiences they have had in the course of their service that raised issues of possible criminality. I was not alone in being very moved by that account, and I wish that we could have done something about it then, but it was obviously very important to get that Bill through and therefore the noble Lord, Lord Dannatt, and his colleagues graciously decided not to press that amendment at the end of the consideration here. I am glad that the Government have fulfilled their promise to bring it forward now, and I sincerely hope that the noble Lord, Lord Dannatt, who will follow me, is pleased with that.

16:30

[Lord Dannatt (CB)]

My Lords, it is now 10 years since the informal military covenant developed by the Army was converted into the Armed Forces covenant for the benefit of all three Armed Forces, and incorporated into the Armed Forces Act 2011. At the time, its incorporation was seen by some as something of a politically expedient device by the then Cameron Government because it lacked bite. I am therefore very pleased that this Armed Forces Bill provides many of the teeth that were missing, especially in the areas of housing, education and healthcare.

The well-being of our Armed Forces personnel once again came into sharp focus as we witnessed the extraordinary efforts of our service men and women in and around Kabul Airport last month. As Brigadier James Martin, commanding 16 Air Assault Brigade, said a few days ago, British soldiers cannot unsee the horrors of Kabul and will need help to recover from that deployment, which he described as “harrowing”. I would be grateful if the Minister would reassure the House that such help is being made available. I am considering an amendment to the Bill to ensure that such help is indeed forthcoming in full measure. I see this as an extension of the duty of care to our service- people—a topic debated and endorsed by your Lordships’ House earlier this year in the context of the overseas operations Bill but which was rejected by the government majority in the other place.

The non-combatant evacuation operation at Kabul raises other issues pertinent to the Bill. Given that one of the stated aims of the operation was to assist the evacuation of interpreters and other locally engaged Afghan civilians who had helped the British over the past 20 years, can the Minister provide any information about how many interpreters we have been able to bring to this country? My information is that we directly employed some 2,850 interpreters up until 2013 when the service was contractorised, but that only 440 interpreters benefited from the ex gratia scheme until the introduction of the Afghan relocation and assistance policy in April this year. My concern, which I believe is shared by many of the 45 senior retired officers who signed an open letter to the Government in July, is that many of the other 2,400 interpreters have not yet been brought to this country. Can the Minister provide an up-to-date figure on how many of those 2,400 interpreters were brought here between April and mid-August? Presumably all those disembarking from RAF evacuation flights were asked who they were and what they did to qualify.

I am sure that noble Lords will want to thank local councils around the country for making homes and education available to these Afghan people, and I also congratulate charities, such as Help for Heroes, which are agreeing to treat Afghans who stood shoulder to shoulder with us in the same way that they are supporting British veterans of recent conflicts. Among those who have recently arrived in this country are former members of the Afghan special forces. It has been suggested that some of them might wish to continue to serve in the British Armed Forces. I would welcome that, provided that normal nationality regulations are followed, or perhaps an exception should be made via another amendment to the Bill. Is this something that the Government are considering?

It was heartening to see the way in which the Government pragmatically put aside the rules regarding indefinite leave to remain to aid the resettlement of recently evacuated Afghans. This relaxation of the rules is part of Operation Warm Welcome, which will see individuals who worked for British forces and their families granted indefinite leave to remain in the UK. Unfortunately, this generous treatment is in stark contrast to how we currently treat our foreign and Commonwealth veterans. For them, many of whom will have served in Afghanistan, military service confers no such privilege. Indeed, when those individuals leave HM forces, they are treated the same as any other foreign applicant seeking indefinite leave to remain. Foreign and Commonwealth service personnel also miss out as they cannot apply to bring their families to the UK while serving unless they meet the income threshold, while under the new Afghan schemes the whole family can come notwithstanding income levels. We will therefore shortly face the bizarre situation where veterans of the Afghan National Army arriving here have greater residency rights than some veterans of the British Armed Forces. If we agree with the aspiration that the UK should be the best country in the world in which to be a veteran, we must ensure that we treat our veterans as well as we treat those to whom we give refuge. It is high time we extended the warm welcome to our foreign and Commonwealth veterans. Can the Minister update the House on the Government’s thinking in this regard?

While we are dwelling on anomalies, there are two other groups of veterans who are being disadvantaged. One is the dwindling ranks of servicemen who were excluded from the Armed Forces Pension Scheme 1975. Recently a petition signed by more than 30,000 people was handed to the Government requesting pension equity with those who benefited from the post-1975 scheme. It should be acknowledged that some of those discriminated against served in Northern Ireland, Aden and Borneo. Can the Minister update the House on progress to eradicate the pre/post-1975 pension inequality? Of course, the Northern Ireland veterans are eagerly awaiting the tabling of legislation to terminate the endless questioning of their operations during the Troubles. Are we any nearer to knowing when that legislation will be tabled?

Finally, it will not have escaped noble Lords’ notice that the other group of veterans currently being discriminated against—Gurkha veterans who retired from the British Army before 1997—have been on hunger strike outside Downing Street. This is shameful. Successive Governments inevitably carry some responsibility for the actions of their predecessors, and although many approved of the popular decision some 10 years ago to allow Gurkhas who had retired before 1997 to have residency rights in the UK, doing so without an uplift to their pension was shameful. A solution to this entirely predictable problem must be found before a Gurkha veteran dies on our streets. Does the Minister have an update on the resolution of this issue? The Armed Forces covenant is for all serving and veteran personnel, including minority groups whose voices often do not get heard.

16:37

[Lord Browne of Belmont (DUP)]

My Lords, we all owe a great debt of gratitude to the brave men and women who have served and continue to serve us so valiantly in our Armed Forces at home and in combat overseas. In my part of the United Kingdom, Northern Ireland, we will never forget their efforts and, in many cases, their sacrifices during the height of the Troubles. For that reason, I welcome, and will always welcome, moves by Her Majesty’s Government to give greater standing to the Armed Forces covenant across the entirety of the United Kingdom. It is important to state that there should be no impediment that would block veterans from being treated fairly and equitably in any part of the United Kingdom.

In Northern Ireland, the New Decade, New Approach agreement committed the Government to legislate to incorporate the Armed Forces covenant further into law and to support its total implementation. It is right and just that the Bill before us today should treat Northern Ireland veterans and service personnel in exactly the same way as those in other parts of the United Kingdom, with full implementation of the military covenant. The failure to implement the covenant fully in Northern Ireland up to this point has let down our brave veterans. It is right that this injustice should be brought to an end.

Veterans across this nation should have full access to a full range of services. We owe it to our Armed Forces to do better. We owe it to them to provide a duty of care for legal, pastoral and mental health support. It is a historical fact that were it not for the bravery and courage of our Armed Forces and security personnel there would never have been a peace process in Northern Ireland and we would not have the relative peace that we enjoy today. We therefore have a duty here and in the other place to protect those who have protected us.

This stretches further, beyond the provision of the vital health and mental health services under discussion. We must also protect our brave men and women from malicious charges and questionable legal claims. We should value the principle that access to justice remains open for us all. To that end, it is worth noting in the strongest terms that there should never be any question of a blanket amnesty being offered. Where a murder has been committed, the law does and must apply equally. Equally, cases that have already been thoroughly investigated, and in some cases reinvestigated, and for which no new evidence has been brought forward, should not be continually reopened to satisfy a particular agenda.

There can be no moral equivalence between terrorists, or those accused of terror offences, and people accused of having committed offences when they were members of the Armed Forces trying to protect us from the terrorists. Those who served our country valiantly deserve some form of legislative protection against continual cycles of reinvestigation when they have been previously investigated and no compelling evidence has been brought. Where service personnel have been fairly judged to have carried out their duties, often in extremely difficult circumstances and at great risk to themselves, their actions should not be second-guessed years or decades later in the interests of political expediency.

British soldiers operate under the highest possible standards and with strict rules of engagement. The vast majority of service men and women act within the law in the service of their country. In any conflict there are of course exceptions to this. However, the majority of victims and veterans do not seek a blanket amnesty from prosecutions; they seek fair and equitable justice.

Regrettably, in recent decades we have witnessed a two-tiered approach to these sensitive issues. In some instances, decisions have been taken to shield the victim-maker rather than deliver justice. As it relates to Northern Ireland specifically, the early release of convicted terrorists under the terms of the Belfast agreement, and the subsequent securing of royal pardons through the on-the-runs scheme, equally perverted the criminal justice system. These are historical examples where dangerous legal precedents have been set.

We must at all times work hard to find proportionate answers to these extremely difficult questions. These answers will not be found if we follow a path that finds any equivalence between brave soldiers and the terrorists and criminals they protect us against when on the battlefield. We stand four-square behind our troops. We must support all efforts to ease the burden for our brave soldiers. Our veterans, and today’s service men and women, do not expect the path they have chosen to be an easy path.

I welcome the work that has been done to date, but it is clear that we have still much work to do. I firmly believe that the passage of this Bill into law will make a significant contribution to the improvement of the welfare of our brave service men and women.

16:43

[Baroness Garden of Frognal (LD)]

My Lords, I too thank the Minister and join in the tributes to our Armed Forces. I wish to raise two points in connection with this Bill. I recognise that it is a routine Bill, but it gives us an opportunity to raise issues of concern.

My first point concerns the ombudsman. I have been given evidence of a case in which the ombudsman’s ruling was apparently overturned by the very senior officers who were comrades of the object of the complaint. Can the Minister assure us that there is now a cast-iron method of totally impartial complaint in which complaints against senior officers cannot be overturned by the might of the military machine?

I raise my second point because the Bill says it is

“to make provision about war pensions”.

There is virtually nothing about war pensions in the Bill, but the noble Lord, Lord Dannatt, has raised some anomalies and I wish to raise another. I am a vice-president of the War Widows’ Association, and the Minister is well aware of—and, I think, sympathetic to—the issue I wish to raise yet again.

Time was when military widows automatically lost their widows’ pensions if they remarried—obviously this edict was made entirely by men; no women, let alone widows, were allowed anywhere near it. It was also a time when the military made no pretence at being caring: wives were tolerated as long as they were camp followers, but woe betide them if they fell out of line. Happily, those days have largely gone. Many widows would be very young; servicemen often die young. The only support and legacy they had from the men who had died in the service of their country was the pension those men had left them. I well remember when my husband—as a young RAF pilot who had seen too many of his comrades meet an early death, and who paid as much as he could into the widow’s element of his pension—told me that if he died, not to remarry and lose all the contributions he had made but to live in sin and be happy. The terminology will tell noble Lords that this was a very long time ago. Of course, for his last three years he was a Member of your Lordships’ House, so happily he did not die as a young pilot.

Then, of course, the Military Police caught up with those living in sin, who we had to then call “cohabitees”, and they too lost the meagre pensions from their dead husbands. How cruel. How mean. For many of those women, that money was the only money that they held in their own account, so what penny-pinching politicians thought this was a caring saving on the public purse? Women who had lost their men—who had died doing their duty—were targeted to lose the pensions that were the last gestures from dutiful dead husbands.

For most military widows this cruel edict has now been cancelled, but there is a small and dwindling group of ageing widows who fell between legislation and who have not had their pensions restored nor any financial recompense. We are told that it is impossible to restore pensions retrospectively, but is it really beyond the brains of the MoD and the Treasury, where we do have some very bright people, to find a way of giving some sort of financial compensation to this last, small group of deprived and elderly widows? We are left with the conclusion that the MoD is waiting for them all to die off, for the problem to go away. Is this really the face of the caring military family?

I once again appeal to the Minister, who I know to be a caring person, to go back to the MoD and the Treasury and ask again for some form of financial help for these widows who lost their men and who, when they dared to find happiness in a new relationship, lost their entitlement to pensions. The total sum would be a pittance against an eye-watering aircraft carrier and would be greeted by such enthusiasm from all military widows, and indeed all the military community that cares. I look forward to the Minister’s response. I continue to live in hope, and I assure her that the War Widows’ Association will not give up on this campaign for justice for their peers.

16:47

[Lord Robathan (Con)]

My Lords, I start by declaring a familial interest in that my son, who is 24, is serving in the Army and therefore is subject to the Armed Forces Act and will be subject to this Bill, when it becomes an Act. I took the 2011 Bill through the House of Commons; it established the Armed Forces covenant, so I know a little about it. My noble friend Lord Astor took it through the House of Lords, as he mentioned. I recall that it was rather hard work, which is not always my favourite topic.

I will concentrate on one point alone today; it was raised by the noble Lord, Lord Coaker, from the Labour Front Bench. The humiliating defeat and disaster that was the withdrawal from Afghanistan has changed the geopolitical spectrum beyond recognition. China, Russia and Iran—all of which, I regret to say, are not our closest friends—are laughing their socks off at the humiliation of the West, NATO, the US and us. The West, western values and western culture are no longer taken seriously around the world. This should deeply depress us all. Our Armed Forces are here to protect us and our interests. I think they have done a pretty good job over the years, but in my opinion this is the worst disaster that NATO has had in its existence. We won the Cold War—I sat in Germany for a year trying to defend the western alliance. The Americans had Vietnam, of course, but NATO is now exposed as weak and rudderless, I am afraid, and we should all address that.

With that in mind, I turn to my noble friend and say that the geopolitical situation has changed. The idea of reducing the Army by 11% and reducing the number of ships and aircraft that we can use is, in these times, absolutely bonkers, and we must revisit it. I pay tribute to the Government for increasing the amount of money they are spending on defence. Yes, what used to be called unmanned aerial vehicles and are now largely called drones are very important, as is AI, but we must have boots that we can put on the ground, ships that we can put in the sea and aircraft that we can put in the air. It is by that that we are judged by potential adversaries.

16:49

[Lord Stirrup (CB)]

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

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

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

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

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

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

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

16:55

[Lord Morris of Aberavon (Lab)]

My Lords, I too congratulate our Armed Forces on their conduct in the evacuation from Afghanistan. During my national service—there cannot be many of us still around in Parliament—my command in Germany was a platoon of 30 men. From time to time, I was deputed to take a section of 10 men fully armed on the overnight train from Hanover to Berlin, with all blinds down, in order to maintain our right to travel from the British zone to the British sector in Berlin. Our limited training was for war and the maintenance of peace on the border with the Russians. I make this point to emphasise that our young men had no training in crowd control, let alone receiving babies in arms across wire fencing. I therefore congratulate them even more.

I once prepared a speech for your Lordships’ House detailing the history of British Forces fighting in Afghanistan. I did not make the speech because there were Welsh regiments fighting in Afghanistan at the time and we lost a large number of men, and many lives were permanently changed, including that of the commanding officer of the Welsh Guards.

I want to concentrate on the court martial system. I give notice that I intend to move an amendment to set up an inquiry into the merits of bringing the system into line with civilian courts without endangering military discipline. I first raised my concerns about courts martial as far back as 2017, following the case of Sergeant Blackman. The noble Baroness responded with a speed unaccustomed in the Ministry of Defence and announced an independent and more in-depth look at the service justice system. We are indeed indebted for the report of His Honour Shaun Lyons and Sir Jon Murphy. However, I fear that the report and the Government’s conclusions in the Bill are a missed opportunity to bring courts martial into line with our civil courts.

I am not concerned with the bulk of the work of the courts martial in their dealings with minor offences. The first point I want to make is that the Armed Forces are considerably smaller than in my day as a young soldier, and life in the forces for soldiers and their families is now much closer to life for their civilian counterparts. When I was Attorney-General, I set up a protocol that, if any difficulties arose in prosecutions, the differences should be finally resolved by the Attorney-General. I welcome Clause 7 on the role of the Director of Public Prosecutions; it places him in the senior role and, of course, he will be guided by the Attorney-General.

My concern is with the more serious offences of murder, manslaughter, rape and serious injuries. In the courts, in my professional life, I have had to deal with many of those. I suspect that they are in the minority of cases dealt with by courts martial, and probably quite rare. Judge advocates who preside over courts martial have only limited experience of dealing with such cases in their own courts, although, of course, they sit from time to time in the civil courts. The Bill empowers the Lord Chief Justice to nominate a circuit judge to preside over courts martial as only a minority of circuit judges are licensed to try murder and rape cases. May I be reassured that this power will be exercised in the same way whenever a circuit judge is nominated?

I come to my main point: the Secretary of State should set up an inquiry to consider bringing the whole system of murder, manslaughter, rape and serious offences into line with court procedures. Courts martial now reach their decisions by a majority verdict of their lay members. It is proposed in Schedule 1 that where there are three members of a court martial their decision can be made by a majority of two to one, and appropriately where there are other numbers. I do not think that a majority of two to one is fit for purpose in this modern age—or, as the Minister said as far back as 2017, when she set up the inquiry—as effective as it can be for the 21st century.

Why cannot our servicemen have the same rights as ordinary citizens and have a jury of 12 persons with the detailed control of a majority verdict, whereby it is set out in public how many people have voted one way for a conviction and how many have not? As I understand it—the Minister can confirm this—courts martial do not announce whether there is a majority or whether the verdict is unanimous. In all those circumstances, given the time available I wish to return to the issue in Committee so that we can have a definitive view on why soldiers cannot have the same privileges as their counterparts in civilian life.

17:01

[Lord Hay of Ballyore (DUP)]

My Lords, like other Members I welcome the Bill to the House. I want to briefly focus on two issues: healthcare for our Armed Forces veterans and reinvestigation into service personnel, an issue that my noble friend Lord Browne has already alluded to.

As has already been said, our Armed Forces do a remarkable job to keep the people of this United Kingdom safe and secure in an ever-changing and increasingly dangerous world. We owe them all a debt of gratitude for their courage and devotion to duty. The sacrifices of our Armed Forces at home and abroad must never be forgotten. Across the United Kingdom, there are 2.5 million veterans and it is vital that they are not simply left to fend for themselves once they return from active service. Our Armed Forces veterans continue to need support for housing, unemployment and vital public services such as improved healthcare. It is only right that those who have sustained life-changing injuries in the service of this nation should receive the best medical care available. When our brave men and women return from a tour of duty, many need assistance when reintegrating into society after the physical and mental challenges they have sustained while serving across the world.

Regrettably, too often the promises made have not matched the reality experienced by service communities, from poor housing provisions to veterans’ poor mental health and social care. We must continue to improve these services and, where we can, support sensible, practical and long-lasting protection for our military personnel. I fully support any legislation that will improve the lives of our forces personnel.

In return for their service, the Armed Forces should enjoy our strongest possible support as we work towards ensuring that our brave men and women get the best possible mental health and well-being provisions available, during and after their service. We must also ensure that, across the United Kingdom, they benefit equally—and in full—from the protection within the covenant. Regrettably, there have been attempts to block the full implementation of the covenant as it relates to Northern Ireland. All forces personnel and veterans across these islands should be able to avail equally of the same quality service, protection and support made available via the covenant. There should be no difference between the services offered in different parts of the United Kingdom.

I will focus briefly on equal justice; more especially, the matter of reinvestigation into service personnel. Operation Banner remains the longest continuous deployment in British military history. Without the bravery and long-lasting commitment of our security personnel, the reign of terror in Northern Ireland would have led to the deaths of many more innocent victims. Veterans and victims are searching for fairness and balance in how justice is served. Nobody is suggesting that military veterans, security forces or anyone else should be above the law or able to act with impunity. However, veterans rightly expect to be afforded natural justice and fairness.

Investigations into previous cases ought to be balanced. It is wrong that former members of the security services have been subject to different sets of standards and rules, despite the fact that 90% of the deaths during the Troubles were caused by terrorists. We have the unseemly situation where thousands of innocent victims of terrorist organisations have been denied justice. As we have done in the past, it is important to say again that we oppose any attempt to introduce an amnesty for criminal actions of terrorists or gangs. There should be no amnesty for anyone who perpetrated wrongdoing.

Broadly speaking, no legal or moral equivalence can be drawn between Armed Forces acting under the rule of law and terrorists who set out to murder and clearly acted outside the law. Affording some form of legal protection to Armed Forces in conflicts at home and abroad against repeated historical reinvestigation is one thing; the possible introduction of a blanket amnesty for anybody is another.

We all must work to provide the services and protections that are needed for our Armed Forces and service personnel. However, what recent discussions have there been with the Northern Ireland Executive on the full implementation of the military covenant in Northern Ireland?

17:07

[Lord Lancaster of Kimbolton (Con)]

My Lords, I too welcome the Bill and of course start by declaring my interest as a serving member of the Armed Forces, and so subject to it. I also fear I am a veteran of this process, having served on the 2006 committee and the 2010 committee, and been the Minister responsible in the House of Commons for taking an Armed Forces Bill through in 2016. Of course, the star turn of this Bill is the enshrining of the Armed Forces covenant into law. That is most welcome, although it brought a slight wry smile as I recall saying something similar before, when we were simply enshrining the requirement for the Secretary of State to report to Parliament each year. None the less, this is welcome. Like other noble Lords, however, I wonder whether it goes far enough.

I understand absolutely the Government’s argument when it comes to local authorities; they certainly want to hold them to account while not necessarily restraining them in how they should enforce the covenant. Focusing on healthcare, housing and education is the right thing to do but, at the same time, if I am true to myself, I recall slightly irritating my noble friend Lord Robathan when he was the Minister back in 2011 by proposing a Back-Bench Conservative amendment in Committee that pensions should be added. At the very least, I feel that a role for this House as the Bill progresses will be to explore to what should be included in the military covenant.

Linked to that, since a Second Reading is about what should be in the Bill, there is also potentially a missed opportunity here with the Veterans Advisory and Pensions Committees. As noble Lords know, these are 13 regional committees which advise, advocate and assist. They are very much a conduit between the MoD and helping veterans in the regions, but their role is very much governed by law. There has been talk for some time about whether we should be updating their role, yet we have not done it. As we bring the Armed Forces covenant into law, why are we not looking at those committees? They are desperate to do more. Why are we not allowing them to do more, when it would help us as the Armed Forces covenant is enshrined in law?

It would be wrong, however, not to recognise the progress that has been made in recent years in the world of veterans. Not least, there is the creation of the veterans’ gateway and the one-stop shop of the Office for Veterans’ Affairs. Even last year, we saw for the first time in the census the question about whether or not veterans should be included.

I too want to say a couple of words about indefinite leave to remain. I declare my interest as colonel commandant of the Brigade of Gurkhas. I have lobbied the Government on this issue and know that it was out to public consultation, but I would be grateful if my noble friend the Minister could update us on that. I urge a word of caution to the noble Lord, Lord Dannatt, when it comes to Gurkha pensions. We are comparing apples and pears. The Gurkha pension from 1948 enabled a Gurkha soldier to receive an immediate pension after just 15 years’ service, meaning many Gurkhas received a pension from their early 30s for life. A British soldier at that time had to serve 22 years; had they served 21 years, they would get not a penny. Be very careful when calling for equivalence between those two schemes: they are quite different.

I am particularly pleased about Clause 9, which brings in continuous service for the Reserve Forces. I declare my interest as over the last year, I have been chairman of the Reserve Forces review. The headmark is the integration of the reserve and regular forces. We have a vision of a spectrum of service whereby, on the right of the arc, we have a civilian working in industry and we can bring their skills through reserve service into the military. On the left of the arc is full-time service in the Armed Forces, and we enable the individual through their service career to move along that spectrum. This clause removes some of the obstacles preventing that. Terms and conditions of service for both regular and reserves are quite different. In the same way that the 2006 Act brought together the three single service Acts, there are some who call—and I am probably one of them—for the bringing together of the Armed Forces Act and the Reserve Forces Act into a single piece of legislation, as that will enable further integration.

Finally, I want to offer one word of caution, which I have mentioned before. I declare another interest—this is a very happy interest—as colonel commandant of the Cayman Islands Regiment; I look forward to going to visit them soon. I fear we made a mistake last time by excluding Gibraltar from the Act, and it is excluded again from this Bill. Shortly after excluding it, we had the airport incident in Gibraltar and, because of a misunderstanding about whether this Act applied, three members of the Armed Forces were arrested and there is still rancour there. Yes, Gibraltar has now passed its own Armed Forces Act, but as soon as we pass this Bill, Gibraltar will be out of kilter again. I simply do not understand why it, like other overseas territories, cannot be included in this Bill.

17:12

[Lord Craig of Radley (CB)]

My Lords, I am pleased that additions are to be made to the Armed Forces covenant. I know that the Royal British Legion and other forces charities have raised points of substance and I wish to be helpful in tabling and debating suitable improvements.

As the noble Lord, Lord Astor of Hever, mentioned, as Minister he introduced the covenant in the 2011 Act. It added two sections about the annual report, and they were to be inserted, almost as a postscript, into a miscellaneous part of the 2006 Act. I objected to this de minimis approach. First, it did not seem to accord with the importance that Prime Ministers and many others then attributed to the concept of the covenant. Their fine sentiments deserved better visibility in legislation. Secondly, two new covenant sections followed immediately: Section 359 dealt with posthumous pardons for servicemen executed for disciplinary offences in World War I—an unfortunate juxtaposition of veteran treatment. My proposed amendment was resisted but, after protracted discussions, by Third Reading the Government decided that the covenant deserved better treatment and should be given its own separate and distinct part, where it now sits as Part 16A. The Government tabled the relevant amendment but, graciously reflecting my persistence, the Minister asked me to speak first to move his own amendment. Clause 8 of today’s Bill builds on that modest beginning.

When the 2011 and 2016 Bills were debated, I commented that they were large, cumbersome Marshalled Lists for the latest version of the 2006 Act. This 2021 Bill is even larger. There are over 85 insertions of substance and five pages of concurrent jurisdiction— no less than 10 for the Armed Forces covenant—and 15 pages of schedules. When it was introduced in 2006, the Bill was over 340 pages long. Now it is close to 400, thanks to the 2011 and 2016 Acts. I asked in 2011 and again in 2016, without answer, why the Government did not introduce the Bill in the form in which they wished it to be enacted, replacing the 2006 Act in toto. It might be a 400-page Act, but the Bill before us is over 50 pages. Future quinquennial reviews could be considering 50 pages of amendments to a 500-page plus, and growing, 2006 Act.

It might be possible, if the Bill were to be a new one, to tidy up the presentation. It has a plethora of parts, chapters and miscellaneous add-ons. The 2006 Act, which was an amalgam of the single service legislation, was a brand new Bill, replacing the single service Acts: a departure from the quinquennial amendments of past Acts. Is there any reason why this legislation, at least in the future, bearing in mind it has passed in the other place, could not be tabled as a complete Bill? It would be more readable and comprehensible, compared with the cross-referencing now required. Maybe this time the Minister will be able to respond.

The thrust of new Chapter 3A in Clause 7, in particular protocols for directors of prosecutions to follow and arrangements to approve their alteration, worry me. I remain concerned that the march of disciplinary legislation for the Armed Forces has the unintended but most unfortunate implication that Parliament and the Government harbour a lack of trust in the higher ranks of the chain of command and the military courts martial system. Yet trust in the chain of command, both upwards and down, is of crucial and overriding importance to the very life and fighting resolve of the Armed Forces. So too there should be no unintended inference that courts martial, which are an essential part of the Armed Forces disciplinary structure, are inadequate or failing. One should look rather at what steps might be taken to counter or dispel any such impression.

These new protocols are ill-defined. Could not different versions be approved for England, Wales, Scotland and Northern Ireland? The view of the service prosecutor may be overruled by the Director of Public Prosecutions, the Lord Advocate for Scotland or the Director of Public Prosecutions for Northern Ireland, as the case may be. The prosecutors are only required to “consult” the Secretary of State, presumably the Defence Secretary, and other named bodies, which differ in each jurisdiction. Is “consult” strong enough to avoid or prevent different approaches to these protocols? Is there a danger that one or more of the final civilian arbiters of the protocols may be personally averse to courts martial, being inconsistent, in their view, with a fair and efficient justice system? What may not be a worry now might be in the future without some strengthening of the protocol arrangements. Is it right that the disciplinary structure of the Armed Forces should be a devolved matter? Is this Bill not a further diminution of courts martial? I look forward to some reassurances from the Minister in winding up the debate.

17:18

[Viscount Trenchard (Con)]

My Lords, it is a great pleasure to follow the noble and gallant Lord, Lord Craig of Radley, who made some very good points in his excellent speech. I thank my noble friend the Minister for introducing this Bill and explaining its purposes. We tend not to debate often enough our Armed Forces and the proportion of our national income that they consume. The historical requirement to pass an Act every five years to maintain a standing army ensures that Parliament has more opportunities to debate the state of our Armed Forces than would otherwise be the case. It is particularly welcome that the Bill seeks to strengthen the Armed Forces covenant, which contains the Government’s promise that servicemen and women should not be disadvantaged in any way by their service and that special consideration may be appropriate on occasion, especially for those injured and those who have lost close family members.

It is good that the Bill makes provision for a new legal duty for public bodies to give due regard to the covenant. However, this applies only to local councils and some limited public bodies delivering housing, health and education. Could the Minister please tell the House why the Government and the devolved Administrations are exempted from this duty? Could she also explain why the list of relevant functions covered is so limited? It includes only housing, education and healthcare. The Royal British Legion, together with many other service charities, is asking for the duty to be extended to employment, pensions, compensation, social care, criminal justice and immigration, among other topics.

It is welcome that, with the Bill, the Prime Minister can rightfully claim that he has honoured the second of the three commitments together described as his “veterans pledge”, which he made in his letter to the Sun of 11 July 2019, to enshrine the military covenant in law. The first commitment was:

“To create an Office of Veterans Affairs within the Cabinet Office”.


The third—outstanding—commitment was to introduce legislation

“to end repeated and vexatious investigations into historical allegations against our servicemen and women—including in Northern Ireland”.

I recognise the highly sensitive and difficult nature of achieving this third objective, and I welcome the Government’s Command Paper, published in July, which I think all will agree constitutes progress. It points out:

“The decreasing likelihood of successful prosecutions is supported by evidence, which shows that between 2015 and 2021 just nine people have been charged in connection with Troubles-related deaths.”


It also notes that

“of these nine, just one person has been convicted.”

In particular, proposals for a statute of limitations, which would bring an immediate end to the divisive cycle of criminal investigations and prosecutions, would successfully deliver the Prime Minister’s third objective. Can the Minister tell the House more about the timescale to which the Government are working to achieve this?

As honorary air commodore in the No. 600 (City of London) Squadron of the Royal Auxiliary Air Force, I welcome the provisions introduced by Clause 9, which recognise and give effect to the fact that reserve or voluntary service today comes in many different shapes and sizes and that the legal framework required to support that needs to be much more flexible than has been the case in the past. The “whole force” concept, which blurs the distinctions between regular and voluntary service, also requires modification to the legal commitments required of our service personnel. My noble friend Lord Lancaster spoke wisely about this matter. It is right that reserve personnel are subject to service law for the entire time that they are in service, under continuous service commitments.

Together with other noble Lords, I am full of admiration for the loyal and tireless service given by all those involved in Operation Pitting. Nevertheless, I also agree with the moving speech of my noble friend Lord Robathan, who is not in his place. He was surely right to say that the badly damaged reputation of NATO, as a result of the Afghanistan debacle, means that now is absolutely not the time to make cuts to numbers of military personnel, ships or aeroplanes.

I take this opportunity to ask my noble friend the Minister whether she will also commend the great contribution made by the Reserve Forces to Operation Rescript, in combating the Covid-19 pandemic, which would otherwise have wrought even greater havoc on our lives. I welcome the Bill and look forward to supporting my noble friend in taking it through your Lordships’ House.

17:24

[Lord Bilimoria (CB)]

My Lords, the Minister started the debate by saying that our Armed Forces are the best in the world. I am proud to serve as an honorary group captain in No. 601 Squadron in the Royal Air Force.

Clause 8 of the Bill would make further provisions for the Armed Forces covenant. I will quote the covenant. It is the nation’s commitment to

“acknowledge and understand that those who serve or who have served in the armed forces, and their families, should be treated with fairness and respect in the communities, economy and society they serve with their lives.”

The House of Commons had its Second Reading on 8 February this year, and many MPs spoke about Clause 8, criticising it for not going far enough in strengthening the covenant. The shadow Defence Secretary said that it was a “missed opportunity”. The Royal British Legion was quoted as well—I am privileged to be chairman of the Memorial Gates Trust, and the Royal British Legion is our partner. The Memorial Gates commemorate the service and sacrifice of the 5 million volunteers from south Asia, Africa and the Caribbean who served in the First World War and Second World War. The problem with this is that it could lead to a two-tier covenant. A committee said that the Bill falls short of what it ought to be and it must have due regard to the covenant itself—it is too weak because it is local and not national. Will the Minister explain why it is not national but only local?

As noble Lords have said, any person with citizenship of a Commonwealth country—other than the UK, of course—who served for at least four years is to be exempted from visa fees. This also applies to those who served for at least four years in the Brigade of Gurkhas. However, there is a shameful scandal: Commonwealth personnel face a fee of £2,389 per person to continue to live in the UK after having served for at least four years, and, to add to this, they are given less than a month—28 days—in which to pay this. This leaves many of them in financial ruin. A suggestion has been made that all they should pay is £204, which is the fee for indefinite leave to remain, instead of £2,389. Does the Minister agree that this should be implemented? The Government say that they are listening to this.

It has been suggested that those of the Afghan special forces who have come to the UK could be absorbed into the Armed Forces and made into a regiment like the Gurkhas. Will the Minister confirm that this has been considered? After all, the bravery that those Afghan troops have shown in the evacuation—going out into the crowds outside the airport, risking capture at Taliban checkpoints—has been absolutely amazing. In the past two decades, the UK special forces have worked alongside the Afghan units, such as Commando Force 333. My friend Tom Tugendhat, the chair of the Foreign Affairs Committee, said:

“We trained and fought alongside many Afghans who are now in the UK. They've proved their loyalty a thousand times. If they want to serve, we should welcome them. I would love to see a regiment of Afghan scouts.”


We must remember that, sadly, 457 people from our country gave up their lives and more than 2,000 were injured in the Afghanistan conflict over the past two decades.

I will conclude by talking about the Gurkhas, of whom there are 4,000 in the British Army. They have served over here for over 200 years. This year is the 50th anniversary of the country of Bangladesh. My late father, Lieutenant General Bilimoria, commanded his battalion of Gurkhas—the 2nd 5th Gorkha Rifles (Frontier Force)—in the liberation of Bangladesh. His battalion received three Victoria Crosses in the Second World War. My father ended up being colonel of his regiment, president of the Gurkha Brigade in India and commander-in-chief of the central army. He commanded his battalion with pride. The person who took over from him as commander of the regiment, Major General Cardozo, has recently written a book, 1971, about the 1971 operation. Field Marshal Sam Manekshaw was the chief of the Indian Army at the time, and, referring to the Gurkhas, he said:

“If a man says he is not afraid of dying, he is either lying or he is a Gurkha.”


We had a sad situation recently where three Gurkhas, representing Gurkha veterans, went on hunger strike outside Downing Street; fortunately, it was called off. It was to do with the pensions that noble Lord, Lord Lancaster, spoke of. My friend Joanna Lumley, who fought so hard with us to give Gurkhas the right to stay over a decade ago, has also urged the Government to meet the brave and loyal Gurkha veterans staging the hunger strike. I ask the Minister: are the Government doing all that they can to resolve the Gurkha pension situation, which seems so unfair? They say that the cost is £1.5 billion, but I would go so far as to say that there is no cost: the contribution of the Gurkhas has been absolutely priceless.

I conclude with this: we must never ever take for granted our beloved Armed Forces, our respected services, which are the best of the best. We will always owe them a debt of gratitude, and that is the covenant that is testament to this.

17:30

[Earl Attlee (Con)]

My Lords, I am grateful to my noble friend the Minister for explaining the purposes of her Bill. Like many others, I am convinced that the system of the quinquennial review, coupled with an annual renewal, is the right one.

When we have just been defeated in a major overseas military campaign, I do not believe that the usual channels have served this country or the House well by providing us with only five minutes of speaking time to deal with all the G1 matters in defence. Unlike my noble friend Lord Lancaster, I no longer have to declare any interest as a reservist, but I have been subject to service discipline, have exercised summary jurisdiction and have once been subject to summary jurisdiction myself. With hindsight, I realise that it was rather more to do with accounting for a lost camp bed than anything I might have done wrong. However, it was in the mid-1970s. Importantly, I have also served on a court martial a few times.

I have three issues to raise. The first is about opening up the membership of the board of the court martial to certain senior NCOs of OR7 rank, which may have unintended and undesirable effects. It might sound a bit more democratic, but the board is not synonymous with a jury—it is a tribunal. Before starting their training, commissioned officers were very carefully selected for having suitable innate and learned characteristics and capabilities. Warrant officers will also enjoy those characteristics in large measure, and they are already permitted to be on the board. It was only when I became a major and a company commander that I dared to suggest to the RSM that he might do something differently or better. My worry is not that a staff sergeant or equivalent might be too lenient but rather the other way: he or she might not have much sympathy or understanding of a weak or poor-quality serviceman. He or she might also lack the wider knowledge and education of an officer or warrant officer. Furthermore, they may lack the capability of standing firm against a judge advocate who advocates a relatively severe punishment against the wishes of the board, a point touched on by the noble and gallant Lord, Lord Stirrup.

My second issue relates to Clause 7 and follows on from the comments of the noble Lords, Lord Coaker and Lord Thomas of Gresford, and others, including the noble and gallant Lord, who raised the issue of suspicious deaths, rape and sexual assault and any related investigation, prosecution and litigation. I do not believe that the service police or the court martial system are well placed to deal with these matters, as some arise so infrequently while others are extremely difficult to investigate and determine. Moreover, there will always be a suspicion of a cover-up, no matter how unfounded the suggestion is. It would be much better to hand these matters over to a Home Office police force immediately, or as soon as possible, and then exclusively use the civil criminal justice system.

My final point concerns inquests related to deaths on overseas operations. The lawyers, who members of the Armed Forces absolutely love, would argue that we need the inquest system to identify what has gone wrong and prevent a repetition. I suggest that that is a delusional view. If there is a technical failure leading to death, especially with ECM matters, the feedback loop can operate within days. If it is an equipment, tactics or training issue, that weakness is fed back into the training system and to the staff. The idea that an inquest, taking place perhaps 18 months later, is going to add to or improve the process is ludicrous. All it would do is to tie up the staff to no useful effect. As I told your Lordships during the debate on the Chilcot report, the attention paid to each individual fatality incurred on operations is inversely proportional to the number of such casualties.

Media reports of those inquests are an absolute gift to our opponents, who can use them to encourage their own members to take the risk of making further attacks on our people and our friends. These reports could also create a lack of confidence within our own servicepeople and the wider public. I am afraid that the hard fact of life is that “hot” overseas military operations are bound to involve fatalities and serious injuries. The other hard, delicate and unpalatable fact is that the victim—or his or her comrades—is sometimes, sadly, the author of the tragedy. Quite understandably, and for obvious reasons, the MoD and the staff will never make this clear at any inquest. Therefore, there is little chance of the inquest coming to the correct verdict in many of these cases.

I intend to return to these issues at a later stage and will provide strong support on the Clause 7 issues.

17:36

[Baroness Bennett of Manor Castle (GP)]

My Lords, in rising to speak to the Armed Forces Bill, I can only contextualise our debate, as so many other noble Lords have, with the dreadful events in Afghanistan and the continuing desperate efforts of people who have supported and served with our Armed Forces to escape the country where their lives remain in severe danger. I acknowledge the impacts, as so powerfully outlined by the noble Baroness, Lady Brinton, of these events on so many who have served there recently and who have served there previously. I share concerns expressed by many noble Lords about inadequate funding and levels of services for veterans and current servicepeople, particularly mental health services.

Many noble Lords have expressed concerns, which I share, about the failure of the Government to adopt the recommendation of Judge Lyons on the treatment of murder, manslaughter and rape charges, and particularly well-highlighted concerns about the management of rape and sexual assault cases. I do not feel that I have a great deal to add on that issue; the view of the House is already very clear. The statutory application of the military covenant to local government but not central government is another area in which the view of the House is very clear. Furthermore, I commend the right reverend Prelate the Bishop of St Albans, who is not in his place, on highlighting the issue of problem gambling. I ask the Government, as he did, whether they have at least planned an examination of the issue. To be fair, I want to commend the Government on the measure in the Bill to right previous wrongs against LGBTIQA+ servicepeople.

I want to devote my speech to raising two issues, which I do not believe that other noble Lords have raised. The first is child soldiers. It is estimated today that the number in the world ranges from 250,000 to 300,000. The United Nations has an International Day Against the Use of Child Soldiers, also known as Red Hand Day. The UK is remarkably silent in international venues on this issue, when we are outspoken on so many other related issues—and we know why. It is because we have child soldiers. This Bill is a lost opportunity to end the practice of recruiting children into the UK’s Armed Forces, as a coalition of 20 human rights organisations called for earlier this year.

I suspect that many Britons would be surprised to know that one in five new military recruits are under 18, a ratio that rises to one in four in the Army, which recruits more 16 year-olds than any other age, particularly into infantry roles. This argument has been rehearsed over many years, but we are now in a very different situation, given that continuation of education for 16 and 17 year-olds is now standard even among the most disadvantaged groups, where four in five continue in education.

Nearly one in three underage recruits leave the Army or are dismissed. They have left their education early to join up, unlike their peers, and then they are immediately out of a job and not in education. So I have a question for the Minister. Are they covered by the military covenant, and what special provision are the Government making for their obviously very high needs? Have the Government any plans for a reconsideration of the recruitment of child soldiers?

I note the disturbing figures obtained by the SNP MP Carol Monaghan that girls under 18 made at least 16 formal complaints of sexual assault to the Military Police in the last six years—equivalent to one in every 75 girls in the military. That brings me to the second main issue I want to address. Women are about 10% of our full-time military, more than 15,000 in number: a significant minority, serving in virtually all roles and functions, but still very much a minority, bringing in their different experiences from a discriminatory society, subject to particular issues in service life and afterwards. I commend the work of Salute Her in highlighting this issue and the need for specialist support services, with women veterans having experienced significantly higher rates of adverse childhood experiences than civilians: 38% of women veterans report military sexual trauma and 33% of women veterans have experienced intimate partner violence, compared with 24% of non-veteran women.

Since we are addressing the place of our military, I must also raise one broader issue, given the timing of this debate: the role of our Armed Forces being closely interrelated with our arms industry. Indeed, we are speaking now as we are about to see arms fairs in the UK not very far from this place. Our military is working with our arms industry to pump weapons out into a world that is already awash with them. This weekend I will be joining many on the streets to protest and call for an end to such promotion of a dangerous industry that threatens the security of all of us.

I think there is one final question—I suspect that the Minister will not have this in her briefing, but I hope she might consider responding to me afterwards in writing. In that industry since 2008, export licences have been allowed for £150 million-worth of weapons to go to Afghanistan. Can the Minister tell me how many of those weapons are now in the hands of the Taliban—and useably in the hands of the Taliban?

17:42

[Lord Balfe (Con)]

My Lords, I join in welcoming the Bill and paying tribute to the Armed Forces, but I do reflect that, while we make a tribute to the Armed Forces, during the time of Covid the Government made tremendous efforts to get people off the streets. I claim no great role in that, but I did notice the huge number of ex-military personnel who are homeless, who felt left out of society, who were sleeping on the streets and who were part of that homelessness.

I must also say that, as someone who has had a fair amount of dealings with the United States and its legislative assemblies, we pay far less attention to our military than they do in the United States. To be an ex-soldier in the United States is an honourable situation. To be an ex-military person in Britain is something that is referred to from time to time with warm words but seldom followed up very effectively. So one thing I hope can come out of the Bill, the covenant and what follows, is a more humane look at the need to deal with post-service life as well as service life, and to face up to the problems that one gets.

If we are running a military operation, we should be clear what we are doing. We are operating a killing machine. The main purpose of an army is to go and kill people, and, if you bring people into that sort of situation, you get throwback in the sense of not only post-traumatic stress disorder but enormous pressure on people and the way in which they see the world. We have to face up to that. I spent a long time, as some noble Lords know, in the European Parliament and I was for some years vice-chair of its Security and Disarmament Committee. We used to go to NATO and, when it existed, the Western European Union and talk to people from all over Europe. It was very clear, talking to some of our Nordic friends, that they did not want to get their soldiers anywhere near military action that would involve killing the opposition—and they did not want it for quite good psychological reasons. I make this point because I think we sometimes romanticise this, saying “Oh, yes, Tommy soldier, great person”. I cannot remember the quote, but Kipling made it and we all know it: sometimes we love them, sometimes we don’t, but mainly we forget them. I think we need to remember that.

We also need to come to terms with the fact that the whole nature of warfare is changing. While 100 years ago the idea of mass killing was accepted—“Over the top you go” at Ypres or the Somme—that would never now be acceptable. Time has moved on. I predict that we are coming to the end of military operations as we have known them up to now. Afghanistan may well turn out to be the last big operation of its kind, and maybe we are moving forward to operations where drones and targeted killings are much more the case. Let us be honest: it is much easier to sit in a bunker in Lincolnshire and destroy someone on the ground in the Middle East than it is to face them across 300 yards or 300 metres of desert.

So I put it to the Minister, not as part of this Bill but as a consequence of this Bill, that we need to come to terms with how we deal with ex-service personnel, many of whom have severe mental problems partly caused by the situation in which, you can say, they have put themselves, but actually in which we have put them. We owe a duty of aftercare, and if there is one thing that Covid taught me, it is the huge number of people in society, on the streets, who come from a military background. I was actually shocked to learn how many, as a percentage, there were. I notice my good friend opposite—I am not sure whether I am allowed to call her a friend—the noble Baroness, Lady Smith, who lives in Cambridge, the same city as I do. Much of my evidence came from there, where the Government gave Cambridge City Council money to get people housed and people were still on the streets. I spoke to some of them and went round with some of the welfare workers, and I discovered a shocking level of mental incapacity that we also need to tackle.

17:48

[Lord Lexden (Con)]

My Lords, I am the last Back-Bench speaker in this important debate and I will confine myself to one clause, Clause 18, to which some reference has been made but which I would like to talk about a little more fully. Clause 18 redresses, as far as is possible, the hardship and suffering inflicted in the past on gallant servicemen who happened to be homosexual. I speak not only for myself but also for my noble friend Lord Cashman, who cannot be in his place today, and for our indispensable colleague, Professor Paul Johnson of York University, who has a fuller understanding than anyone else of the laws which, over the centuries, created hardship and suffering for homosexual servicemen.

Five years have passed since the three of us called for the action which Clause 18 will at last now authorise. Back in 2016, during the Committee stage of the Policing and Crime Act, which became law in 2017, provision was made through amendments passed in this House to grant posthumous pardons under certain conditions to individuals convicted or cautioned for certain offences that have now been swept from the statute book. I pointed out in December 2016 that the legislation would not make adequate provision for the Armed Forces. Pardons were made available for offences now repealed under civil law going back to the famous Henrician statute of 1533, but for service offences only the period since 1866 was covered. It goes without saying that all families who want justice for homosexual forebears or relatives should have the same possibilities of redress made available to them.

Some improvement was made in the final stages before the 2017 Act became law. Posthumous pardons for naval personnel were extended back to 1661, but in the time available it was not possible for Professor Johnson to locate all the relevant statutes under which homosexual servicemen suffered for so long. After additional work had been carried out, further legislation to accomplish what had been left undone in 2017 was drafted in the form of two Private Member’s Bills which the noble Lord, Lord Cashman, introduced in this House. Clause 18 represents the completion of a long process for which my noble friend the Minister and her officials deserve sincere thanks. It has been a formidable undertaking. The clause covers a period in which some 300 separate enactments, comprising the annual Mutiny Acts and Marine Mutiny Acts as well as numerous iterations of articles of war, regulated the Army and Royal Marines. We do not know how many servicemen were convicted or punished for engaging in same-sex sexual conduct which would be lawful today. Whatever the number, a posthumous pardon will, so far as is possible, acknowledge and address the grave injustice done to them and wipe the stain of that injustice from their memory.

I would like to say that Clause 18 ends the matter. Unfortunately, it does not. These posthumous pardons cover only those convicted of civil offences under service law. Many Armed Forces personnel were convicted under specific service discipline offences, such as the offence of disgraceful conduct, for engaging in consensual same-sex acts which would be lawful today. Again, we do not know the number, but it is substantial, and for every one of that number a career was damaged or destroyed. Service discipline offences are not covered by the current pardon and disregard schemes first introduced in 2012. Why should the brave people harmed by them be excluded from such measures of redress as have been belatedly devised to help restore the reputations of the unjustly condemned? I intend, therefore, with the noble Lord, Lord Cashman, to table amendments in Committee to address those further historical injustices.

17:53

[Baroness Smith of Newnham (LD)]

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.

18:05

[Lord Tunnicliffe (Lab)]

My Lords, this has been an excellent debate, demonstrating not only the wealth of service experience in our House but how all Peers want to work together to get the best for our service communities. Personnel, veterans and their families are a source of great pride for our country and their professionalism is respected across the world. I know many will join me in thanking them for their past and ongoing service, especially those who have been involved in the evacuation in Afghanistan in recent weeks.

As my noble friend Lord Coaker outlined at the start of the debate, we will seek to improve this legislation. We support the Bill’s main principle and welcome steps for the creation of a legal duty of due regard to the principles of the covenant and the implementation of elements of the Lyons review. I have been struck by the cross-party support for the issues my noble friend outlined at the start of the debate: widening the scope of the legislation to ensure that all areas of potential disadvantage are addressed; ensuring a two-tier Armed Forces covenant is not created; including central government on the list of public bodies which must take on the new responsibilities; and giving civilian courts jurisdiction in matters of murder, rape and serious sexual offences committed in the UK.

As we have heard, these priorities reflect the main calls and concerns from service charities. The Royal Air Forces Association said the Bill misses an opportunity to enact the Lyons recommendations, the Naval Families Federation called for widening of the Bill’s scope to include all aspects of the Armed Forces covenant, and the Royal British Legion stated that the list of public bodies subject to the due regard duty should be widened to include national government. We are listening and responding to service charities, so why are the Government not?

The Government have not maximised this legislative opportunity to fix other important issues which continue to blight personnel and veterans. These focus on investigations, visas for Commonwealth and Gurkha veterans, an Armed Forces representative body, and examining dismissals and resignations based on sexual orientation and gender identity.

First, we have heard throughout the debate that issues surrounding repeated and shoddy investigations remain. Noble Lords tried to settle this in the overseas operations Bill; there was a clear consensus in this House that the Bill, now an Act, did not do what was promised to protect British personnel serving overseas from vexatious legal claims and shoddy investigations. There was cross-party support for a duty of care to support troops facing investigation, as well as for conditions to be set on investigations to ensure timely, not time-limited, investigations. I remind the Minister of her words during ping-pong, when she gently encouraged the noble Lord, Lord Dannatt, not to press his duty of care amendment, saying that if he was to

“bring back this amendment in the Armed Forces Bill … this House will no doubt debate the issue further. I look forward to continuing these constructive discussions”.—[Official Report, 28/4/21; col. 2347.]

So here we are. I hope the noble Lord will be inclined to bring back this amendment, which we strongly support.

Next, the Government should have made provision in the Bill to stop Commonwealth and Gurkha veterans being subject to eye-watering fees to remain in the country they have served. Under the current rules, Commonwealth personnel face a fee of £2,389 per person to continue to live in the UK after having served for at least four years. It means that someone with a partner and two children could face a bill of almost £10,000 to stay in Britain. We believe that this is dishonourable, unfair and certainly no way to repay their bravery and sacrifice.

In May, the Government announced a consultation that would waive visa fees for those who had served for 12 years or more, but this would apply to just 20 of the 200 non-UK personnel who left the regulars in 2020. Commonwealth service personnel have contributed an enormous amount to our national defence and we owe them a debt of gratitude. However, the extortionate visa fees have left many non-UK veterans facing financial ruin and being abandoned. Therefore, in line with calls from the Royal British Legion, we will bring forward an amendment that would mean that Commonwealth and Gurkha veterans who have served for years would pay just the cost price for an indefinite leave to remain application.

It has been clear for some time that the Armed Forces need independent advice and representation. Witnesses during the Committee stage in the other place reinforced this, since Armed Forces personnel have endured a real-terms pay cut for most of the last decade and concerns about the service complaints system remain. We will therefore explore whether the time is right to formalise representation and support for service personnel on issues such as welfare and pay. To be clear, this would not be an equivalent to a trade union for the Armed Forces, and it would not conduct or condone any form of industrial action or insubordination within the Armed Forces. The body would work with the Ministry of Defence to put in place a form of understanding that could deal with such issues and would be similar to models in the United States and Australia.

We are also saddened to see that the Bill does not include a clause requiring the Government to conduct a comprehensive review of the number of people who were dismissed or forced to resign from the Armed Forces due to their sexuality. Homosexuality was banned in the British Armed Forces until 2000, when the ban was lifted by the then Labour Government. During the ban, many were dishonourably discharged or forced from the service, losing access to pensions and benefits. Some were also stripped of medals that they had earned for their service. Along with the practical impacts of this discrimination, such as the loss of pension, it also caused significant challenges for mental health and well-being. We deeply regret the treatment of LGBT+ veterans under the ban. As organisations such as Fighting With Pride, Stonewall and the Centre for Military Justice have said, we must do more to identify those affected and consider what further compensation might be appropriate. We will therefore seek to amend the Bill to force Ministers to consider the restoration of ranks, pensions and other forms of compensation to honour appropriately those who have served our country.

That is, in a sense, a summary of the position we will take on these Benches, but I ask the Minister to take away three ideas. First, our Front Bench found little reason to disagree with most of today’s speakers; there is consensus across the House on a wide variety of issues. Secondly, at least five speakers were concerned about the failure to embrace all the Lyons recommendations, particularly those relating to murder, manslaughter and rape. Thirdly, no less than 10 Members spoke about their concerns about the covenant. It if comes to Divisions, the Government will lose. I hope that they will start straightaway to think about how they might meet this House’s concerns so that we can work through concessions, not government defeats.

There is much to be commended in this Bill but there is also much to be put right. This type of legislation comes along once in a military session. Let us seize this opportunity. Let us work across parties, including with the Government, and improve the lives of our service personnel, veterans and their families.

18:15

[Baroness Goldie (Con)]

My Lords, I begin by quoting my immediate predecessor, the noble Lord, Lord Tunnicliffe, who said that this has been an excellent debate. He is absolutely correct—we have heard many thought-provoking contributions. What has left a lasting impression on me from this afternoon’s proceedings is the many impassioned speeches made on behalf of our Armed Forces. I thank your Lordships for that warmth and affection, and for the cross-party support of the noble Lord, Lord Coaker, who opened for the Opposition, of the noble Baroness, Lady Smith of Newnham, and from the Cross Benches. That attitude and those contributions reflect the deep and abiding affection and support that our service men and women, veterans and the broader service community enjoy in this House and beyond.

Of course, as the noble Lord, Lord Bilimoria, said, we should also remember that a tremendous contribution has been made over decades by our Commonwealth forces and veterans. Bringing it right up to date, my noble friend Lord Trenchard rightly reminded us of the role of our reservists in Operation Rescript, so there is much of which we can be very proud and certainly much for which we are very grateful. In turn, this mirrors the desire of your Lordships to make certain that this Bill can deliver measures that have a profound and far-reaching benefit to those who guard and shield the nation.

As the noble Lord, Lord Tunnicliffe, said, support for this Bill is strong and widespread. I appreciate the interest shown and the questions about certain measures and wider issues. I will address as many of your Lordships’ concerns as I can in the time available.

I was interested in the points made by the noble Baroness, Lady Garden of Frognal. One was perhaps predictable, because her assiduous work on behalf of war widows is, rightly, widely respected and acknowledged. Her plea for war widows, for whom she so tirelessly advocates, is heard. I can say that there is a desire to find a solution and all avenues are currently being explored; I use the word “currently” advisedly. I hope it will be possible to report further on that in the not- too-distant future.

The noble Baroness, Lady Garden of Frognal, also asked about overturning decisions of the Service Complaints Ombudsman. That ombudsman is of course independent but, as with other ombudsmen and ombudswomen, their recommendations are taken seriously but are not in themselves binding. However, I was interested to hear the noble Baroness’s contribution.

I also want to deal with one or two important points made by the noble Lord, Lord Dannatt, which I noted down. In character, the noble Lord raised a multiplicity of thought-provoking and important issues, and I will look at Hansard and endeavour to respond to him. He referred to the Gurkha hunger strike, which I am pleased to say has now come to an end. My colleague the Minister for Defence People and Veterans, and the Defence Secretary, will meet Gurkha welfare groups shortly to discuss all welfare concerns. I know that the noble Lord, Lord Bilimoria, was also concerned about that.

I was not surprised to find that a lot of the discussion this afternoon concerned the covenant. There was widespread acknowledgement that placing it in legislation is good news; indeed, my noble and learned friend Lord Mackay of Clashfern rightly identified the important message that this sends to our Armed Forces, as did the noble Lord, Lord Dannatt. However, I certainly noted the concerns articulated by a number of noble Lords, not least the noble Lord, Lord Coaker, and the noble Baroness, Lady Smith.

In response to the specific point raised by the noble Lord, Lord Coaker, my noble friend Lord Astor of Hever and my noble and learned friend Lord Mackay of Clashfern on why the legislation will not apply to central government, 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 of how service life can disadvantage the Armed Forces community in accessing these key public services. The MoD is fully aware of issues that impact the Armed Forces community, and we work with other departments and organisations across not just government but the United Kingdom to raise awareness, to access concerns—as best we can—and to help facilitate the resolution of problems. The MoD and central government more widely are already held to account in the delivery of the covenant by the statutory requirement to report progress against the covenant annually to Parliament. That will remain a legal obligation. I realise that that will not satisfy all noble Lords, but I shall anticipate with interest how your Lordships who are concerned about the omission of Governments—indeed, I think it was my noble friend Lord Astor who specifically mentioned the Scottish Government—explore and broaden out these genuine issues.

As in the other place, a number of noble Lords have argued that the scope of duty for the covenant is too narrow and that it should be broadened beyond housing, healthcare and education. We have chosen the scope of the duty carefully and in consultation with the Armed Forces community because we know that these issues will make the greatest improvements to family life. Indeed, I am grateful to my noble friend Lord Lancaster for recognising that. Significantly, of course, the Bill contains provisions for us to expand the scope into other areas through secondary legislation at a later date. I was asked for an assurance that this will be reviewed regularly. I am happy to give that assurance: the scope of the provision will be reviewed regularly. This is not the end of our legislative effort; it is the beginning.

A number of noble Lords, not least the noble Lord, Lord Coaker, the noble Baroness, Lady Smith, and a number of others, claim that the new legal duty is not strong enough. They are concerned that creating a legal duty “to pay due regard” to the principles does not go far enough. I know there has been talk in the other place from the Opposition Benches of needing to set “measurable national standards”. I think our challenge throughout this has been one of striking a balance. On the one hand we wanted to ensure delivery against the covenant principles, but on the other we wanted to avoid the sort of prescriptive approach that puts bureaucratic barriers in the way of practical delivery. Your Lordships will understand that when we are dealing with constituted local authorities which are entitled to a degree of government autonomy to make their own democratic decisions about what they wish to do, and with devolved Governments who have legislative competence to deal with delivery of these policy areas, we have to be very careful that we are not setting down a prescriptive approach which could be provocative, inimical and, in that respect, fairly unhelpful. I assure your Lordships that public bodies were consulted extensively, and our decision also reflects the diverse nature of public services across the country, but the Government will monitor responses and we are obliged, as I said earlier, to submit an annual report on the covenant to Parliament.

Predictably, the issue of the service justice system invited significant and extensive comment. I was pleased to hear noble Lords refer to the important reviews of the service justice system. I, too, have considered the reviews of His Honour Shaun Lyons and Professor Sir Jon Murphy, and it is their recommendations that underpin the improvements to the service justice system that we are taking forward in the Bill.

The noble Lord, Lord Thomas of Gresford, with his considerable experience in this field, raised this issue. He sought a further explanation about why the Government were adopting the particular course they have chosen. That was, to some extent, echoed by the noble and learned Lord, Lord Thomas of Cwmgiedd. As I said at the beginning of this debate, while we accept the need to improve the decision-making process in relation to concurrent jurisdiction, we do not believe that the introduction of an Attorney-General consent function is the best way to achieve it, because Attorney-General consent arises at the end of the investigatory process, when key decisions on jurisdiction have already been made. I find it hard to see what the attorney adds if he or she is endorsing decisions already made. If the attorney were to disagree with those earlier decisions and veto a case being tried in the service justice system, there is no easy way to transfer that case to the civilian system. This could have the undesired effect of making it difficult or impossible to prosecute the case in either system; I think we all need to reflect upon this. The Government believe they have opted for a more pragmatic approach. As I said earlier, Clause 7 ensures that decisions on jurisdiction are left to the independent service justice and UK civilian prosecutors using guidance they have agreed between themselves. I do not consider that politicians should meddle in that. It is the case that the civilian prosecutors will have the final say as to within which jurisdiction the matter will be tried if there were disagreements.

The noble and learned Lord, Lord Thomas of Cwmgiedd, raised three significant points to which I listened with interest: first, should Parliament approve the prosecutor’s protocol and, secondly, in the choice of jurisdiction, should there be a right of appeal? He also suggested that it must be an error that this applies only in the United Kingdom. The Government seek to go with the grain of existing non-statutory arrangements. There is an existing non-statutory protocol between service and civilian prosecutors, and putting it on a statutory basis will bring clarity and transparency. On the specific points the noble and learned Lord raised, I suggest that there is no need for parliamentary approval for this type of protocol because this follows the precedent for the statutory Code for Crown Prosecutors, and that is not subject to that type of approval. On the second point, the Government see these as decisions for prosecutors. They are not subject to appeal at present; we are not looking to change that. On the third point, no, it is not a drafting error that it applies only to the United Kingdom. The purpose of this provision is to guide how civilian and service authorities within the United Kingdom manage these matters. Overseas matters are different—not least that they are often governed by a status of forces agreement.

I have endeavoured to explain why the Government have not just pulled this out of the air. Careful thought has been given to these proposals. I think it is worth reminding ourselves that the current situation was established by the Armed Forces Act 2006; that is the legislation that Parliament approved back then. I appreciate that that was under a Government of a different hue but, none the less, Parliament approved it and established jurisdictional concurrency by allowing murder, manslaughter and rape in the UK to be tried as service offences. It is that legal principle that the Bill supports, and that is why it is drafted as it is.

A number of your Lordships raised the comparative statistics on conviction rates between the service justice system and the civilian criminal justice system. I have to say—and I have looked at this—that I do not think it is possible to make a meaningful statistical or data comparison between the service and civilian justice systems. The service justice system review makes it clear that it is not possible to make accurate comparisons of outcomes in the systems as the relatively low number of cases and the small database in the service justice system mean that variances have a disproportionate effect on percentage values, which can subsequently lead to false conclusions.

A number of your Lordships referred to the House of Commons Select Committee report, which the MoD is currently considering; we shall publish our response shortly. On some of the criticisms which were levelled by your Lordships about the efficacy of the service justice system dealing with rape and serious sexual offences, we are confident that the service justice system provides an effective and fair system of justice for the men and women in the UK’s Armed Forces. It is interesting to note that the forces themselves do not report a lack of confidence in the system. The latest continuous attitude survey showed that 64% of the service population thought that the service justice system was fair, which compares with around 69% of the civilian population who think that the criminal justice system is fair. I am merely offering to your Lordships some basis for the approach which the Government have chosen.

A number of your Lordships raised the very important matter of mental health and mental health support: the noble Lord, Lord Coaker, and the noble Baroness, Lady Brinton, spoke movingly about this, and the noble Lord, Lord Hay of Ballyore, referred to it, as did my noble friend Lord Balfe. It is correct that as our service personnel return home from testing operations, there is little doubt that in future years, sadly, an increasing number of veterans may suffer from mental health issues.

The MoD is committed to the mental health and well-being of our Armed Forces personnel and recognises that service life can cause stress. All Armed Forces personnel are supported by dedicated medical services, including mental health support. The MoD works with the single services, the Defence Medical Services and other stakeholders to promote mental fitness, prevent ill-health and try to reduce stigma. A lot of work has been done in that respect, of which I think many of your Lordships are aware.

I emphasise that an online mental health fundamentals course is available to all Armed Forces personnel, and since 2021 an annual mental health briefing is mandatory for all Armed Forces personnel. The MoD provides a 24-hour mental health helpline for Armed Forces personnel and their families, delivered by Combat Stress. That has been one of the most important developments in recent years. Togetherall allows Armed Forces personnel access to its 24-hour staffed digital forum and the Samaritans delivers bespoke workplace training and a peer support pocket guide providing guidance on how to talk to and support colleagues struggling to cope with mental health.

I think it was the noble Baroness, Lady Brinton, who sought information about resource. From the information I have available, in 2020-2021, NHS England provided £16.5 million for veteran-specific mental health services, which increased to £17.8 million for 2021-22. In addition, the Government are also accelerating a new NHS England high-intensity mental health service for veterans who have acute mental health needs and are in crisis.

I refer to yesterday’s announcement that additional funding will be allocated to a range of projects that will increase capacity in mental health charities. There will be a £5 million boost to help increase the user-friendliness and accessibility of services and better signposting of veterans to the range of services available. I hope that that reassures your Lordships that this is an area in which we are determined to do our very best and that we endeavour to support our veterans in every way we can.

In the time remaining I will address specific points that were raised. The noble and learned Lord, Lord Morris of Aberavon, is not with us. He explained to me that an urgent domestic matter has commanded his attention, requiring him to leave early, and I thank him for his courtesy. He raised important points, and, although he is not here, I will address them because they concern the courts martial.

His honour Shaun Lyons in the service justice system review concluded that there remained the need for a separate service justice system. The court martial system largely follows the Crown Court procedure, and the Bill takes the court martial system closer to that civilian system. While it is true that the Bill retains the possibility of 2:1 majorities, the intention is that three-member panels will deal only with less serious offending, and serious offending will be dealt with by six-member panels. His honour Shaun Lyons considered but rejected the possibility of voting being announced; voting is not currently published.

My noble friend Lord Lancaster raised the fact that the Armed Forces Act 2006 no longer applies to Gibraltar. I am aware that this is an issue which my noble friend dealt with extensively when a Minister in the Ministry of Defence. While it is true that the 2006 Act no longer extends to Gibraltar, the Bill contains an important provision on Gibraltar. Clause 19 confirms that Gibraltar legislation can apply the Armed Forces Act 2006, which means that Gibraltar can make provision so that the Royal Gibraltar Regiment can make use of the UK service justice system.

The noble and gallant Lord, Lord Craig of Radley, raised the important and interesting issue of what I would describe as a statutory spring clean: could we make future Armed Forces Bills more straightforward, easier to read and to understand? As regards spring cleaning, that is a kind of floor-to-ceiling job with the curtains included as well, so I undertake to have a meeting with the noble and gallant Lord to discuss those issues further.

The noble Lord, Lord Dannatt, asked whether we have figures for interpreters returning to this country. During Operation Pitting, between 15 and 29 August up to 5,000 Afghan locally employed staff and families were relocated under the Afghan Relocations and Assistance Policy. Prior to Operation Pitting and between 22 June and 14 August, a further 2,000 were relocated, and in the last six weeks 7,000 locally employed staff and families were evacuated in total. These are the figures I have at the moment. Obviously, they may change on a day-to-day basis, but we have all been aware of the noble Lord’s herculean efforts to keep this matter at the forefront of the attention of government and the British public, and I pay tribute to him for those efforts.

My noble friend Lord Lancaster and the noble Lords, Lord Dannatt and Lord Bilimoria, raised the matter of visa settlement fees. We recognise that settlement fees may place a financial burden on some serving personnel wishing to remain in the UK. The Defence Secretary has met with the Home Secretary to consider how we could offer greater flexibility in the future. As was indicated, a public consultation was launched on 26 May 2021, which closed on 7 July. We are currently analysing the feedback from that consultation and we shall respond in due course.

My noble friend Lord Lexden raised the very important matter of Clause 18, and I am grateful to him for mentioning the significance of that clause. He rightly mentioned Professor Johnson and the noble Lord, Lord Cashman. I wish to use this opportunity to pay tribute to their incredible efforts to bring Clause 18 to fruition, and I think the Chamber would wish to acquiesce in these sentiments.

Finally, an interesting contribution, if slightly not in the mainstream, came from the noble Baroness, Lady Bennett of Manor Castle. She referred to “child soldiers”, which is a term that few of us in this Chamber recognise—it is certainly not one that the Armed Forces recognise. We have a very healthy cadet programme where young people, on their own admission, have marvellous opportunities and thoroughly enjoy the experience, and that seems to be a very positive initiative in this country.

The Armed Forces covenant covers those who have been in regular service. It applies to all service personnel and veterans, and a veteran is a person with at least one day’s service. On the noble Baroness’s specific question about export licences, I refer her to the Department for International Trade, because that is its responsibility.

In conclusion, I thank everyone for their valued contributions. If my memory serves well, back in February I said to this House during the debate on the Armed Forces Act (Continuation) Order that I anticipated an interesting and lively debate on this Bill. In that regard, I am certain that none of us has been disappointed. I have enjoyed the debate and found it stimulating. I look forward to the detailed scrutiny we shall give the Bill in Committee, and I commend it to the House.

Bill read a second time and committed to a Grand Committee.