Armed Forces (Court Martial) (Amendment) Rules 2024

Baroness Buscombe Excerpts

Monday 20th May 2024 Grand Committee

[The Minister of State, Ministry of Defence (The Earl of Minto) (Con)]

My Lords, the statutory instrument before us today amends the 2009 court martial rules by introducing a new procedure for the court to view sentences under new Sections 304D and 304E of the Armed Forces Act 2006.

With the leave of the Committee, I will set out the provisions to which the statutory instrument relates. Section 304D enables a person who has been sentenced by the court martial to have their sentenced reviewed to take account of assistance that they have given, or offered to give, to an investigator or prosecutor under an agreement of the Director of Service Prosecutions. A case may be referred for such a review only if the Director of Service Prosecutions believes such a referral to be in the interests of justice. The review in court may reduce the sentence in return for the assistance given or offered.

A person who received a sentence that was fixed by law—for example, a life sentence for murder—may have that sentence reviewed only if they pleaded guilty to the offence for which they received that sentence. A review may further discount a sentence that has already been discounted or reduced if the person sentenced gives or offers to give further assistance. Conversely, Section 304E provides for the sentence of a person to be reviewed if that person received a discounted sentence in return for assistance offered to an investigator or prosecutor and then failed to give that assistance.

If the review in court is satisfied that the person knowingly failed to give the assistance, the provision allows the court to increase the sentence to take account of that failure. However, it can be increased only up to a term not exceeding the level that the court indicated would have been the sentence had there been no agreement to provide assistance. Again, a case may be referred for such a review only if the Director of Service Prosecutions believes such a referral to be in the interests of justice. These provisions closely follow those contained within the Serious Organised Crime and Police Act 2005, which applied to the civilian criminal justice system.

I draw the Committee’s attention to the right of appeal contained in both 304D and 304E, providing for appeals for any decision coming out of a sentence review. This appeal mechanism is available for a person whose sentence has been reviewed as well as the Director of Service Prosecutions who may also appeal against a decision on review. The Armed Forces (Appeal Against Review of Sentence) Regulations 2024, which were laid before Parliament on 13 May and is subject to the negative procedure, regulates Section 304D and 304E appeals.

The statutory instrument is somewhat technical in nature. It inserts a new Part 14A into the 2009 court martial rules to set out the basic court rules governing review of sentence proceedings. It also notes various technical amendments to the general provisions of the court martial rules so that they apply to review of sentence proceedings. For example, Rule 6 of these rules amends Rule 23 of the 2009 rules, so that if the court martial dealing with a review of sentence proceedings decides to substitute the original sentence with a new one, that substituted sentence must form part of the record of proceedings.

As your Lordships will see, the changes are technical, but they are needed to ensure that Sections 304D and 304E work as intended. I beg to move.

[Baroness Buscombe (Con)]

My Lords, I respond to the regulations by saying that I very much support the proposals. I do so having compared the process for court martial with that for discharge from the Royal Navy on medical grounds. The latter is the most inhumane and unfair process that I have ever come across. I ask the Committee’s leave to bear with me for a few moments so that I can put on record why I am unashamedly using this opportunity to speak on court martial to alert the Minister to the truth about the process applied to serving personnel who may not be operating at full capacity in the Navy due to an illness, an illness that was most likely contracted or occurred while in service.

The key point is that a court martial allows serving personnel to be represented and the opportunity to make his or her case to rebut the charges in person. In contrast, the Royal Navy’s employability board acts behind closed doors, even when someone has asked, with detailed reasons and letters of support from others within the Navy and the medics, for his or her case to be reviewed. Instead of an interview with serving personnel in person, in the first instance, the board sends out what it calls a signal, which means an alert for a line manager to call an individual and say, “You’re discharged”. The line manager then informs that individual that they are discharged and because the line manager most probably does not know what the process is because he or she has not been told, he or she unknowingly gives the individual incorrect advice about an appeal process and timing.

No reasons or explanation for the discharge are given at that point, so an individual who wishes to appeal that decision is up against a time limit and cannot know what they are appealing against. Eventually—too late—a letter couched in the most appalling, unpleasant language arrives in the Navy post. It basically writes someone off, even if that individual has skills, experience and capabilities of which we know the Navy is in dire need. The result is that years of training, service, commitment and adaptability are wasted, and an individual who has served his or her country is devastated, on the floor. No one has even bothered to sign that letter.

If the individual asks for their case to be reviewed and submits detailed reasons, again, there is no interview by the employability board and no consideration of a possible transfer to other branches to utilise experience and capabilities, attributes that may be supported by others in the Navy who work with and know the applicant. No reference is made where an individual who has moved heaven and earth to return to 100% fitness, most probably at their own expense, confirms a marked improvement or an expectation of full recovery in the short term. No reasons are given in the event that the review is unsuccessful. Another signal just goes out to the line manager stating “no change”.

Will the Minister therefore take time to meet me so that I can share in more detail this unacceptable and frankly shocking truth? I believe it sends a terrible message, not least to all those who have signed up to the Armed Forces covenant. In a court of law, that message would not stand up to the most basic principles of transparency and fairness, coupled with the accountability of the board.

I close by confirming that no armed forces personnel, serving or veteran, are aware of my decision to make this statement today.

[Lord Thomas of Gresford (LD)]

My Lords, it is a privilege to follow the noble Baroness’s speech. I hope that she has my success in dealing with the Navy. Many years ago, I put down a Question to the noble Lord, Lord Bach, who was then in the Ministry of Defence, about the practice of marching the defendant in a court martial into the court at the point of a cutlass. I thought that that was perhaps not appropriate when there is the presumption of innocence and that it was not appropriate in our day and age. Between putting down the Question and getting the Answer, the ancient custom was abolished for all time.

It is a privilege to be debating with the noble Earl, Lord Minto. I am sure he does not remember this, but we last exchanged words at the gate of his home, Minto House in Scotland. He may remember that I expressed my huge admiration for his ancestor, the first Earl of Minto, who was a very liberal governor-general of India and a wonderful politician for whom I have the greatest respect and about whom I have written a lot. So it is a pleasure to be in the noble Earl’s company again.

I declare an interest as the president of the Association of Military Court Advocates, although I am not speaking on its behalf and the views I express are not the considered view of that association.

As the noble Earl said, this draft SI derives from Sections 304D and 304E, which were inserted into the Armed Forces Act 2006 by the Armed Forces Act 2016. That was eight years ago, not now, so perhaps the Minister can explain why it has taken eight years for the appropriate secondary legislation to be put in place.

Section 304D applies where the review is to consider a reduction of a sentence for co-operation or assistance. Section 304E applies where a person has been given a discount on sentence but has failed to co-operate. In my experience in the Crown Court, the common law position was that, where a convicted person wished to take advantage of any assistance he may have given or was offering to the prosecution, a “text”—it was commonly called that—was prepared by the police or the prosecution and handed to the judge in chambers. This was a secretive procedure, and usually the defendant had to rely upon the good faith of the police or the security services. He did not see the text and the judge did not refer to it in court. Your Lordships will appreciate that giving assistance to the investigating authorities is positively dangerous for a person who has been sentenced and is serving a prison sentence.

This clandestine procedure was given statutory force in the Serious Organised Crime and Police Act 2005, as amended by the Sentencing Act 2020. I note that the Explanatory Memorandum does not refer to the 2020 Act, and I wonder whether it was prepared in 2016, in the light of the Armed Forces Act, prior to the amendments to SOPA.

The civilian provisions in SOPA introduced the possibility of a review of a sentence after it had been passed and while it was being served. They involve a careful series of steps to be taken by prosecutors, and the consideration of a number of factors by the court. To qualify for a review of his sentence, the offender may offer to give King’s evidence, as it is called, in a subsequent trial of his associates, or he may simply provide intelligence of their activities, or both. In most cases, the anonymity of the prisoner is maintained for obvious reasons. Copious and lengthy guidance notes for prosecutors are published by the Crown Prosecution Service, covering a variety of topics, including the criteria for allowing a review, the obtaining of a written agreement, the conduct of interviews, the need to inform the police or other investigating authority of the proposal, the documents to be supplied to the court and so on. My first question is: will the Service Prosecuting Authority or the Director of Service Prosecutions rely on those guidance notes, or will specific Service Prosecuting Authority guidance be published?

Overseas Operations (Service Personnel and Veterans) Bill

Baroness Buscombe Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 20th January 2021 Lords Chamber

[Baroness Buscombe (Con) [V]]

My Lords, I declare several interests: a son serving in the Fleet Air Arm; as a recent former Lords Minister with responsibility for the Armed Forces and veterans at the Department for Work and Pensions; and as a barrister, not proud of those in my profession who have profited from vexatious claims, making life pure hell for some of our courageous veterans.

As a past member of the Joint Committee on Human Rights, I have an abiding memory of its current chair either failing or refusing to understand the import of what the then Secretary of State, Michael Fallon, was saying as he explained the very high bar for process and protocols that the MoD and our Armed Forces must meet against a tight timeframe prior to making the decision to release an unmanned missile.

It is abundantly clear to me, having read recommendation 8 of its report on the Bill, that the JCHR still cannot or will not accept that life can be very different for the military. One cannot begin to compare the environment, actions, challenges and decisions that, in real time, face our military on overseas operations with that of a civilian’s life choices. The Bill strikes a proportionate balance between the rights of genuine victims’ access to justice in a reasonable time and fairness to those who defend our country. A good starting point should be: what is proportionate, what is the environment within which an action is taking place, and what is reasonable in all the circumstances?

The Bill is about raising the threshold of prosecution to reduce the likelihood of investigations being repeatedly reopened without new and compelling evidence. Our rules of engagement for our Armed Forces are extraordinarily stringent and, as it is, we send our young into battle with one-and-half arms tied behind their backs, sometimes in the most appalling conditions. In order to satisfy tough but necessary rules of engagement, our serving men and women understand entirely that they are not above the law, and the Bill is not about any immunity from the law. In short, this Bill does not allow our Armed Forces personnel to act with impunity.

In addition, recommendation 13 of the JCHR report demonstrates a lamentable lack of knowledge of life in the Armed Forces. Believe me, Armed Forces personnel are constantly at risk of being stepped down from duties if they show the slightest sign of illness, physical or mental. I urge all noble Lords to read the government responses to the JCHR report. So much of military life is nuanced, and that is the nub of why the Bill is before us—and rightly so. It is not perfect, but it is a symbolic step in the right direction.

Concern was expressed in another place regarding the exclusion of torture from Part 1 of the Bill. In addition to the Government’s clear response on this matter, I refer to paragraph 2.2435 of The Report of the Al-Sweady Inquiry, which I attended briefly. It provides a stark example of why the issue of torture is not clear-cut. It illustrates the utterly dreadful impact of modern weaponry, which can undeniably create a presumption of torture in the eyes of anyone unaccustomed to seeing bodies following battle—most particularly their families. I make that point simply to emphasise the brutal and nuanced reality of combat. Torture is never, ever acceptable, and the Bill does not in any way undermine the UK’s adherence to the UN Convention Against Torture, its commitment to international law or its willingness to investigate and prosecute any alleged criminal offences.

I have two questions for my noble friend the Minister. First, what is the latest thinking at the MoD regarding the issue of investigations being fully addressed in the Bill? Secondly, with reference to the definition of “overseas operations” as it applies throughout the Bill, does it include operations beyond our territorial waters—for example, acts of piracy and the seizure of drugs and other contraband?

In conclusion, in paying tribute to the heartening, intelligent and articulate voices of our ex-Armed Forces Members in another place, I shall quote the honourable Member for Bracknell, James Sunderland, who, when referring to Armed Forces personnel, said:

“They aspire to better protected in law. They want to know … they will be supported if they pull the trigger lawfully and, after the misery of the ambulance-chasing years, they want the threshold for prosecution to be raised so that the endless knocks at the door finally stop. This is a no-brainer.”—[Official Report, Commons, 3/11/20; col. 239.]

Brexit: Armed Forces and Diplomatic Service

Baroness Buscombe Excerpts

Thursday 8th December 2016 Lords Chamber

[Baroness Buscombe (Con)]

My Lords, I congratulate the noble Earl, Lord Cork and Orrery, on an excellent maiden speech, and thank my noble friend Lord Sterling for initiating this timely debate. I begin on a rather more optimistic note than some previous speakers by championing the Armed Forces and everything that they do. I am constantly struck by their collective extraordinary commitment to their duties, their loyalty to each other and their love of this country. We cannot do enough to demonstrate our support for them, but we can properly equip them, incentivise them and reward them for their exceptional contribution in our fragile world.

I was heartened by the announcement of the Secretary of State, Sir Michael Fallon, on 21 July, when he laid out the three key themes of the Government’s approach to defence in the wake of the EU referendum: defending the UK’s values of democracy, the rule of law and freedom; ensuring a stronger NATO for a stronger defence; and the US-UK partnership, about which I am more optimistic than others who have spoken today. He also announced that the UK would remain a key player in European defence, through the prism of NATO. It was also reassuring to hear from the Secretary of State:

“We will step up, not away from, our global responsibilities”.

However, I wonder whether it would not be sensible to at least revisit and carefully think through the SDSR 2015 to ensure that it is now, and will be, fit for purpose as we leave the European Union.

In addition to all our current partnerships and shared responsibilities within the EU framework, there are other practical considerations. For example, already we have a weaker pound post the EU referendum, which can be good for exports but tough on imports of raw materials. Are we comfortable that there is sufficient flexibility in the defence budget to safeguard the necessary investment in our defence hardware for the coming years?

A key capability must be to procure effectively, and there has already been substantial and welcome reform to the process. However, the independent report by Sir John Parker to inform the UK’s national shipbuilding strategy advises that yet more can be done. Sir John states—it is his own view—that building ships takes too long from concept to delivery compared with other complex industries, with a lack of pace and with time and cost impacted by a non-assured capital budget. In addition, he says:

“In sharp contrast to the commercial sector, Defence does not own major, capital intense projects at the highest level in the Client organisation”.

I interpret this to mean that it is not clear who is accountable and responsible for all projects. I ask my noble friend: is accountability and responsibility for each project delegated to key individuals in the MoD? The structure for funding is not helpful. Why is it that we allocate large capital sums to build our roads, but capital for shipbuilding and other defence projects is not consistently assured? One quickly understands why Parker stresses the need for a master plan to include well-informed oversight of the total enterprise incorporating the industrial and supply chain base. Sir John’s observations make tough reading, which I hope will be viewed by the MoD in a positive light and, having spoken to various suppliers, I believe that they, too, would welcome more rigour in the whole procurement process.

Returning briefly to the SDSR, in the light of the significant demands overall, are we ensuring that the needs of our Armed Forces remain paramount, not those of industry or our economic prosperity? This has continued to concern me in the SDSR. Are we also ensuring that we are not just building the “for” without the “with”; that is, are we investing in the right equipment and systems to do the right job and to employ in all our three services?

On a separate note, the theatre of war is ever-changing. We know that social media play a vital role in the fight against Daesh as well as other emerging and present dangers, in which case I applaud the existence of a new approach and a new piece in our armoury to reflect modern warfare: 77 Brigade, set up in 2014 to lead on special influence methods, including providing information on activities, key leader engagement, security and media engagement. I urge my noble friend to ensure that 77 Brigade is fully funded and sufficiently equipped to meet its objectives.

There is now a strong focus on ensuring cybersecurity, judged by the national security risk assessment 2015 to be a Tier 1 risk for the next five years. To be effective, it must be embedded in thinking, activity and preparedness across government and, by extension, the private sector. As the risk assessment states, cyber risks underpin many of the other crucial risks we face.

In conclusion, during the process of leaving the EU, it is crucial that we regularly make clear to our Armed Forces that their future is assured and that a focus on Brexit will not diminish other challenges which the MoD must confront, including the pressing need to improve the whole process of recruitment, training and retention of our personnel. After all, our ability to defend our nation and reach out to assist others will only be as good as the men and women who serve.

Investigatory Powers Bill

Baroness Buscombe Excerpts

Report: 1st sitting (Hansard): House of Lords
Tuesday 11th October 2016 Lords Chamber

[Lord Paddick]

My Lords, Mr Anderson has made statements in the past in which he has supported the idea, but I accept that he also has serious concerns about it.

[Baroness Buscombe (Con)]

I am grateful to the noble Lord for giving way. I do not understand this amendment. Can he explain the point of having this board when we will already have the commissioner?

[Lord Paddick]

My Lords, at the moment we have an Independent Reviewer of Terrorism Legislation, whose job it is to look at the operation of the current legislation, as far as I understand it. This is a wider panel, whose emphasis is on looking at the civil liberties and privacy aspects. There is a subtle difference in where the independent reviewer and the panel are coming from, providing a better balance between the arguments put forward by the security agencies and an advocate for those who argue to protect civil liberties and privacy.

--- Later in debate ---

[Lord West of Spithead (Lab)]

My Lords, I fully support what the noble Lords, Lord Carlile and Lord Rooker, have said. The amendment would create a security nightmare and be a recipe for obfuscation, muddle and confusion. Indeed, it is a dangerous proposal and I am amazed that it has been put forward. If the House divided, I would vote against it. Accepting it would be a grave error, and I am surprised and shocked to see such an amendment.

[Baroness Buscombe]

My Lords, I wonder whether I might be helpful to the noble Lord, Lord Paddick, in his quest in some way to emulate the American model. I was recently at a conference in Vienna as a member of the Joint Committee on the National Security Strategy, where we discussed the issue of financing global terrorism. I had the pleasure of meeting two distinguished members of the American civil liberties board. They spoke at great length; they were eloquent, distinguished and had great expertise. I asked them the question: do their Government have to listen to them? The answer was no—there was no point.

[Lord Campbell of Pittenweem (LD)]

My Lords, I, too, have the misfortune to disagree with my noble friend Lord Paddick, although perhaps in not quite such trenchant terms as my noble friend Lord Carlile. I want to make two points.

First, the original proposal, now contained in this amendment, was made against a wholly different framework and its necessity must be considered against the background of the statutory framework which the Bill now encompasses. On that basis, the fact that the proposal may have been considered previously—by the way, I am much more favourably disposed to the coalition Government than the noble Lord, Lord Rooker—is no argument for its inclusion in the Bill now.

My second point draws not least on my experience as a member of the Intelligence and Security Committee and is about the attitude of the security services. Subsection (2) of the proposed new clause simply rehearses existing law and adds nothing to the obligations already incumbent on the security services.

Defence: Continuous At-Sea Deterrent

Baroness Buscombe Excerpts

Wednesday 13th July 2016 Lords Chamber

[Baroness Buscombe (Con)]

My Lords, I am pleased to have this opportunity to support the Government tonight. There is no doubt in my mind that we are doing the right thing to future-proof the protection of our nation and underpin our commitment to NATO. As a member of the Joint Committee on the National Security Strategy, I confirm its full support for the deterrent element of SDSR 2015. It is right that the SDSR makes clear that we are committed to maintaining the minimum amount of destructive power needed to deter an aggressor, to stress the need to avoid vulnerability, and to keep our nuclear posture under constant review in the light of the international security environment and the actions of potential adversaries.

My noble friend Lord Arbuthnot of Edrom referred to those now demonstrating outside against nuclear weapons. It is crucial that we explain clearly and often why this deterrent is critical. We must communicate our purpose. We cannot presume that each generation will grow up accepting the why without explanation and understanding of what Trident really means and the potential consequences of compromising our commitment to a continuous-at-sea deterrent patrol.

We parliamentarians have the enormous advantage of understanding what Trident means in practice through our access to the Armed Forces. Just a few weeks ago, I had the privilege of visiting Her Majesty’s Naval Base Clyde and, in particular, Faslane, where I spent time on board one of our Vanguard-class submarines, the youngest and recently refuelled HMS “Vengeance”. In addition, I was allowed unusual access to the high-security establishment the Royal Naval Armaments Depot Coulport, so I have the clear advantage of witnessing for myself what we have been doing quietly with extraordinary rigour and care, supported by the Royal Marines, since 1969.

In March this year, I was lucky enough to spend several days in the company of 45 Commando in the Arctic Circle learning about the extraordinary training and exercises undertaken by both our Armed Forces and those of our NATO allies, including the US Marines, also on exercise in the far north of Norway, in recognition of our now very fragile relationship with Russia.

As my right honourable friend David Cameron said in another place only a few days ago, we are not seeking confrontation with Russia, we are working to prevent it. Our nuclear deterrent is at the heart of that prevent strategy in what is—as my noble friend said—an increasingly dangerous world.

There is always the question of cost, and the Trident Alternatives Review, referred to this evening, undertaken at the request of the Liberal Democrats and published in July 2013, is instructive. The review confirmed that possible alternatives to its successor would, as outlined by my noble friend, actually prove more expensive than what is now proposed. Following publication of the review, I note that my right honourable friend Liam Fox reminded the Liberal Democrats in another place—at the time, they were keen to end CASD and procure one fewer successor submarines on the basis that it would make a saving of £4 billion—that this so-called saving was equivalent to two weeks’ spending on the NHS or six days of what we spend on public sector pensions and welfare.

Concerns remain, of course, regarding the defence budget. The recently published House of Commons Defence Committee report Shifting the Goalposts?—Defence Expenditure and the 2% Pledge, the second report of Session 2015-16, confirms the real pressures on the defence budget. I suggest that another goalpost be reviewed. In this regard, I was rather taken by a question asked by noble friend Lord Vinson in response to the Statement on the NATO Warsaw summit on 11 July, when he said that our defence budget was strapped for cash while we are simultaneously giving substantial aid to support the economies and welfare of countries, such as Poland and Finland.

In essence, I ask my noble friend the Minister, whether it is not now time to seriously and sensibly revisit the current DfID target of 0.7% of gross national income—particularly in the light of the short-to-medium term fragility of our economy post-Brexit—and transfer some of that budget to defence? It may be more important than the target. Should we not question our priorities? I know where mine firmly lie and that is with our defence capability and the welfare of our Armed Forces. Aid is of course very important. However, it should be supplementary to what our previous Prime Minister, during his resignation speech only three hours go, called the “spirit of service” of our Armed Forces in their endeavours to keep our nation safe.

Armed Forces: Reserves

Baroness Buscombe Excerpts

Thursday 22nd October 2015 Grand Committee

[Baroness Buscombe (Con)]

My Lords, I was inspired to add my name to speak in this debate after having the privilege of attending a dinner on Monday evening at the Honourable Artillery Company in the presence of His Royal Highness Prince Michael of Kent. Those attending included a small number of senior representatives of the corporate world, together with representatives of the Honourable Artillery Company and a head teacher at the local academy in that area.

These dinners are held twice a year and are known as “employers’ dinners”. The purpose is to focus on the enormous value of reservists in the Armed Forces. Although it was very much Chatham House rules, I have to say that I was totally inspired by our principal host and by General Sir Richard Barrons, Colonel Commandant and President of the HAC. The latter spoke with amazing force and commitment about the need for and worth of the reserves. If every young person and their employer could hear General Barrons speak, I think we would meet the numbers overnight. However, I took away an important question from the event, one which I have thought about for some time. What proportion of the reserves come from a military background and how many people who are not from a military background are attracted by the current rather formulaic advertising campaigns?

In common with fellow guests at the HAC, I do not come from a military background. Mine is the legal profession and the corporate world. So, from my perspective, even the language of the Armed Forces, including all those acronyms, is quite different from my own. This was a common theme among the guest: if you do not come from that kind of background, how do you relate to what being a reserve has to offer? Which part of the Armed Forces would suit which type of applicant? Indeed, with great respect, the word “reserve” is not exactly enticing. In other words, the branding and the clarity with which the opportunities out there are articulated to potential candidates are crucial. Is enough being done to address this?

The 77th Brigade, based in Newbury, which I learned about on Monday evening, is a great example which I am convinced would—and, I hope, does—attract some excellent candidates. As many of your Lordships will know, it was originally set up as the Security Assistance Group, formed following the Army 2020 plan. The name was changed to reflect the independence of mind of the Chindits—I am extremely pleased to see my noble friend Lord Slim in his place. Branding anything as related to the Chindits should in itself be enough to attract the best young volunteers. The importance of how we explain to young people what is possible—what they can achieve as a result of this, what contribution they can make in terms of learning leadership skills, the ability to cope in difficult conditions and so on, and what that can then lend and contribute to their world of work—is immeasurable.

The 77th Brigade attracts a mix of regulars and reserves who are specialists in their fields, influencing attitudes and behaviours in other countries. There is expertise for security capacity building and for training foreign security forces. There will be many young people in the private sector and the professions with the requisite skills—including, for example, social media, marketing and public relations—who, with the right approach, would be attracted to making a contribution in this way. In addition, the Joint Cyber Unit—again with the right approach—would attract many with technology skills who would be excited by the challenges and the contribution they could make to this joint cyber reserve.

There is a further and final sticking point. The best spooks out there, who I suggest, if they knew about it, might be willing to give of their time to contribute to our national security, will probably not want to run up and down hills on Dartmoor and the Brecon Beacons or want to do drill. I hope that this is no longer a prerequisite. Can my noble friend confirm that a spook can remain relatively physically unfit while mentally keen?

The Role and Capabilities of the UK Armed Forces, in the Light of Global and Domestic Threats to Stability and Security

Baroness Buscombe Excerpts

Tuesday 15th September 2015 Grand Committee

[Baroness Buscombe (Con)]

My Lords, I rise to speak for the first time in a defence debate. Notwithstanding having been a Member of your Lordships’ House for 17 years, I feel some trepidation, as other noble Lords speaking in this debate know so much more than I do. However, I feel that I should declare an interest. I now have a son, of whom I am very proud, who is about to start training as an observer in the Fleet Air Arm. However, he has no idea that I am speaking in this debate. I have not learnt anything from him that I will reference in this debate, and I have no intention of telling him about it afterwards.

I thank my noble friend for introducing this debate. It is timely. Among others here, I am also a member of the Armed Forces Parliamentary Scheme. Surprise surprise, I am looking at the Navy. I want to focus my remarks on maritime security, given some issues that have been raised on various visits, which I would like to share this afternoon.

My immediate concern regards maritime security, particularly the security of our borders. These issues, while relevant to the next SDSR, actually need to be addressed as a matter of urgency. I say this given the clear and present increased threats from uncontrolled migration. My noble friend Lord King referred to the refugee crisis and the imminent threat of yet more failed states. In addition, there are the actions of small groups and individuals who are determined to cause maximum harm within our borders, including suicide bombers, coupled with ongoing and increased people smuggling and narcotics smuggling. My chief concern relates to our capabilities concerning air and sea surveillance of our shores—all 11,072 miles of shore, or 19,491 miles if you include the larger islands around our mainland shores.

As noble Lords know, maritime security requires a critical matrix of legislation, surveillance, intelligence fusion and co-ordination, interdiction, law and/or maritime enforcement. Effective surveillance is central to that matrix. There has long been a layered approach to UK surveillance, and the UK military used to have a fairly effective layered approach, developed to combat Russian submarines. The SDSR in 2010 removed the UK’s military marine patrol aircraft, a capability hitherto very effective for general surface surveillance and even search and rescue. The loss of maritime patrol aircraft has put greater pressure on other layers including the air surveillance contracted by a number of government departments and agencies that look for specific things such as illegal fishing, customs breaches, narcotics smuggling and people smuggling, on the surface rather than under.

Noble Lords will know that in 2012-13, a House of Commons Defence Committee study showed how, unlike Australia for example, the UK had a number of separate air surveillance contracts emanating from different departments. This current ad hoc approach means that economies of scale have been lost and that aircraft working to different departments operate in the same airspace and leave gaps. Scotland also has an entirely separate contract for fisheries. The House of Commons Defence Committee recommended consolidation, for obvious reasons.

This inefficient ad hoc approach that allows gaps as well as duplication in our surveillance is about to become much worse given the now imminent loss of one of the air surveillance contracts, thereby further undermining our layered approach. There is a solution—to have one overarching, consolidated contract to deal with maritime security as opposed to military or anti-submarine surveillance. That would help to alleviate some of the pressure on SDSR 15 decisions on maritime patrol aircraft.

A quick résumé of current contracts might add weight to my suggestion. Current contracts approximate as Border Force, the Marine Management Organisation, the National Crime Agency, the Maritime and Coastguard Agency and Marine Scotland, which is entirely independent and operates only in Scotland. A single UK-wide contract is needed as soon as possible and, in the mean time, no diminution of the current capacity. Indeed, the contract that is due to expire in January 2016 should be extended to avoid a crucial gap in our air surveillance until a consolidated, more cost-efficient and effective contract can be executed.

Much of the work for a single contract was previously completed under the direction of the National Maritime Security Advisory Committee. To bring that about, we need central direction to direct departments and agencies to act as one. Noble Lords will know that a policy catalyst normally results from an incident or issue. For example, Australia got its act together in response to highly publicised boat migration. We now have a similar issue in our sights as well as the opportunity to gain efficiency for UK plc, especially if the SR and SDSR are putting individual departments under a huge squeeze.

There is a related issue in relation to surface ships surveillance—another important layer that presents a similar issue and requires consolidation and coherence that goes to interdiction as well as surveillance. Noble Lords will know that interdiction requires law or maritime enforcement and therefore competent enforcement officials—police and customs-empowered Border Force officers and marine management-empowered Royal Navy officers who have the right jurisdictional powers. Navy ships have weapons and sophisticated communications equipment and generally their own aircraft—helicopters—but currently, if required for a UK law enforcement mission, they have to embark customs, Border Force, police and so forth to make an arrest. That is extraordinarily inefficient. The only exception is fishing where Navy officers in our offshore patrol vessels—OPVs—have enforcement powers under UK legislation.

The other vessels for UK surveillance and interdiction are UK Border Force cutters. But unfortunately the UK Border Force is struggling to run them. Only three of five are available for at-sea work around the UK unless they are supported by Royal Navy staff. The obvious solution is to focus now on a trial undertaken by national maritime asset co-ordination which, as its name suggests, co-ordinates the activity of the Royal Navy’s OPVs and Border Force cutters to increase the capability of assets, expand geographical spread, increase the size of the area patrolled, deconflict activity to remove duplication and reduce response times.

A scientific study conducted in 2013 clearly demonstrated that currently UK surface ship coverage does not compare favourably with similar-sized countries such as France, Australia and Holland. The NMAC trial, however, places additional capabilities in different ships and the trial has already proved successful. More importantly, to assist in terms of practical solutions to the threats that we face and the task at hand, the Government have already committed to build three more offshore patrol vessels in Scotland in order to keep shipyards alive between finishing the two aircraft carriers and work on the next generation of Navy frigates—the Type 26. This surely presents the ideal, cost-efficient opportunity to use the Navy offshore patrol vessels to replace the Border Force cutters and thus have the capability to do UK-wide maritime surface patrol properly using OPVs with a maritime enforcement cadre embarked to cover all boarding requirements. That has been trialled and is achievable.

The SNP in Scotland often criticises Westminster for the lack of Navy and maritime patrol presence—particularly Border Force cutters—in Scottish waters, which this could address not least because Scotland spends more than £9 million per annum on its limited capability. In other words, they cannot do any other tasks. Rather shockingly, that is more than the Marine Management Organisation gives the Royal Navy towards the running of the offshore patrol vessels.

The nexus between the issues is that the current situation is a symptom of an ad hoc and inefficient approach thus far, which can only get worse. There has to be impetus to generate efficiency, better surveillance and better interdiction capability. The development of the National Strategy for Maritime Security plus governance mechanisms, ranging from ministerial oversight to an officials committee, has increased interagency coherence, but the bottom line is that each of those comes from a department where maritime security issues are only an element of the work and seldom core. So issues of funding are very difficult indeed, and cross-Whitehall savings or increased UK capacity do not register on departmental agendas. This is the context in which surveillance capacity, whether via an air or surface ship, needs to be considered. What is needed is a rationalisation of air and surface assets, and improved mechanisms to use the information and intelligence product to the benefit of all.

I want to touch on another issue, which came to my notice when I recently visited Portsmouth, where of course the two new Queen Elizabeth class aircraft carriers are destined to arrive. Looking at a three-dimensional model of the dockyard, as well as driving through it, it struck me that there is a serious issue regarding planning for the necessary support services for the carriers, as well as all other ships, in what should become a 21st-century highly secure base.

My first concern is security. Since the terrible killing of Corporal Rigby at Woolwich, I would like to presume that high on the list of MoD priorities is the need to ensure that our Armed Forces personnel are as secure as possible. I suggest that the current layout of Portsmouth makes that difficult, given the presence of some listed buildings, a few of which currently have little or no function and which I suspect would cost a great deal to refurbish sufficiently to accommodate some ships and carrier stores. Whether they are empty or not, the Royal Navy is required to maintain those buildings out of the defence budget while looking for ways to improve access and flow across the base. In short—I have not shared this with any Royal Navy personnel, who may be horrified at the suggestion—I question whether it is sensible to ask the Royal Navy to accommodate the new carriers, and all the related equipment that that entails, coupled with the heightened need for personnel security in an area where currently it is something of a maze to navigate and, frankly, the historical value of a few of those buildings is quite questionable. Nowhere else in the world would the listing of a building, built hundreds of years ago to store goods and house staff, take precedence over national security.

Please be assured, I am not looking to wreck a wonderful historic shipyard; I am simply suggesting that the Navy should have the option to remove a few buildings in its midst to ensure we have a base to be proud of that is fit for purpose and which will protect our personnel and our very expensive assets in a less safe and secure world.