Armed Forces Act (Continuation) Order 2021

Baroness Goldie Excerpts

Thursday 11th February 2021 Lords Chamber

Moved by

[Baroness Goldie]

That the draft order laid before the House on 18 January be approved.

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

My Lords, a few days ago many of your Lordships will have listened intently to and reflected on the debate on the Armed Forces Bill as it passed through its Second Reading in the other place. I hope your Lordships were struck by the number of very positive things that the Bill proposes to do, including embedding further into law the Armed Forces covenant; implementing the sound recommendations born out of the Service Justice System Review; introducing flexible service for reservists; and addressing the issue of posthumous pardons. These are just a few of the subjects that many of your Lordships are rightly passionate about.

As was explained during the Bill’s Second Reading, Parliament renews the Armed Forces Act 2006 every five years through primary legislation. However, in the intervening years an annual Order in Council must be made and approved by both Houses for the Act to continue to remain in force. The 2006 Act is currently due to expire on 11 May this year, so a further annual order is needed to keep it in force. The draft order we are considering will keep the Act in force until the end of 2021. Primary legislation, in the shape of the Armed Forces Bill, is needed to keep it in force beyond 2021.

If the 2006 Act expires, certain major problems arise. For example, it would be impossible to maintain the Armed Forces as disciplined bodies. Service personnel do not have contracts of employment and so have no duties as employees. Their obligation is essentially a duty to obey lawful commands. If the 2006 Act expired, members of the Armed Forces would still owe allegiance to Her Majesty, but there would be no sanctions for disobeying orders. Moreover, other disciplinary 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, whether here at home, tirelessly supporting the emergency services, local communities and assisting with the mass vaccination across the UK during the pandemic; supporting our British Overseas Territories by delivering vaccine doses; protecting our safety and security; tackling the ongoing threat of cyberattacks posed by hostile states; actively safeguarding the world’s main waterways and escorting ships to deter the scourge of modern piracy and ensure freedom of navigation in disputed waters; playing their part to counter terrorism or to combat drug smuggling and people trafficking; taking a central role in the ongoing United Nations peacekeeping operations in Mali; distributing vital humanitarian aid; continuing the war on terror by assisting and building capacity with partner nations to defeat the likes of Daesh in Iraq and Syria; maintaining our forward presence in the Baltic and northern Europe to strengthen Euro-Atlantic security; or monitoring our sovereign air space to identify any threatening presence. All that reflects a huge and remarkable range of diverse activity.

The requirement for Parliament to regularly consent to the maintenance of the Armed Forces dates back to the Bill of Rights in 1688, when the existence of a standing army was contentious. While this is no longer the case, the debate on this order to keep the 2006 Act in force is also an opportunity for us in this House to record our thanks by permitting the Armed Forces to continue for another year.

That is a summary of the background to the statutory instrument. I hope that your Lordships will support the draft continuation order. I beg to move.

--- Later in debate ---

[Baroness Goldie (Con) [V]]

My Lords, we have had an excellent debate this afternoon; it has been both passionate and constructive, and I thank all noble Lords for their contributions. What has shone through without exception is a shared desire to do the right thing by those who do right by us—and a shared determination to recognise our bravest citizens. I reassure the noble Lord, Lord Truscott, that it is because they are our people that we will do the right thing by them. I also seek to reassure my noble friend Lord Robathan that, according to NATO criteria, we are the highest defence spender in Europe; these criteria are established and robust.

It is worth reminding noble Lords that the purpose of this debate is to provide for the continuation of the Armed Forces Act 2006 as it currently is, not as it would be if amended by the Armed Forces Bill, which, as has been noted, had its Second Reading in the other place on Monday night. This House will have a full opportunity to debate the provisions of that Bill when it comes to this House in due course. Having said that, the Bill has been introduced and I understand why noble Lords have found comment irresistible. I will therefore say a little this afternoon in response to some of the points raised, knowing that we will return in much greater detail to these topics later in the year.

I was pleased to hear the support for the Bill, though the acceptance from the noble Lord, Lord Rosser, was just a little grudging, if I might say so. I hope that, as we proceed to a fuller debate later this year, we will be able to reassure him of the many positives in the Bill. It takes forward matters of considerable importance relating to the implementation of the service justice system review and the Armed Forces covenant. I note the areas in which noble Lords feel the Government could be taking a different approach in the Bill. I have listened to the comments on topics such as the covenant being too narrow in its scope and its legal duty not being strong enough and concerns raised over aspects of the service justice system. I will try to deal with these accordingly.

The noble Lord, Lord Reid, and other noble Lords argued that the scope of duty for the covenant is too narrow—that it should be broadened beyond housing, healthcare and education. We have chosen these remits carefully and, importantly, in consultation with the Armed Forces community, because we know that they will make the greatest improvements to family life. Significantly, the Bill contains provisions for us to expand this scope into other areas through secondary legislation at a later date. I reassure the noble Lord, Lord Reid, and your Lordships, that the scope of this provision will be reviewed regularly. This is not the end of our legislative effort; it is the beginning.

The noble Lord, Lord Reid, and a number of other contributors, argued that the legal duty is not strong enough. They were concerned that creating a legal duty to “pay due regard” to the principles does not, in their estimation, give enough clout. There has been talk from the Opposition Benches in the other place of needing to set “measurable national standards”. Throughout this, our challenge has been to try to strike 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. I assure your Lordships that public bodies were consulted extensively. Our decision also reflects the diverse nature of public services across the United Kingdom, not least in the devolved nations, as a number of noble Lords referred to. The devolved nations have responsibility for these areas.

The noble Lord, Lord Empey, raised the issue of awareness of implementing the covenant obligations, as did the noble Lord, Lord Dodds. These changes will make the impact of the covenant more local. That will possibly raise a desire to make more obvious just how that is benefiting Armed Forces personnel and veterans. I remind noble Lords that the Bill honours the promise to give the covenant the legal standing needed to deliver for everybody in the Armed Forces community, right across the whole United Kingdom.

I move on to the service justice system, about which a number of comments were made, not least by the noble and learned Lord, Lord Morris, and the noble Lord, Lord Rosser. The Government have considered the reviews of His Honour Shaun Lyons and Professor Sir Jon Murphy. It is their recommendations that underpin the improvements to the service justice system that we are taking forward in the Bill. I am pleased that the noble and learned Lord, Lord Morris, welcomes the broad thrust of the improvements, but I noticed his particular concerns and look forward to him pursuing these matters when we debate the Armed Forces Bill later in the year.

Noble Lords raised a range of issues in their contributions. I will try to deal with these as best I can. The noble Lords, Lord Reid, Lord Campbell, Lord Truscott and Lord Rosser, my noble friend Lord Robathan, the noble Baroness, Lady Smith, and other noble Lords all raised the size of the military. The integrated review, which is not yet published but is expected soon, will detail the forward shape of our whole defence capability as we look to a new age of threats. Any speculation about Army force structure at the moment is purely that—speculation. I reassure noble Lords that we are confident that we have the numbers and the capabilities to do the job. We have discharged our core obligations to protect and secure the nation against threat, despite the challenges of Covid. That has been entirely down to the professionalism, competence and commitment of our Armed Forces personnel.

I want to include the reservists in that. My noble friend Lord Lancaster helpfully outlined the extremely positive position in relation to the reservists. We hope the provisions of the Armed Forces Bill will be a further encouragement to them.

The noble and gallant Lord, Lord Craig, raised a matter which is dear to his heart: a consolidation of Armed Forces legislation; a desire to see it all under one legislative umbrella. He was, perhaps, imputing to me a view which I have not yet formed. I want to look at this issue in considerable depth. The noble and gallant Lord has approached me on the matter, and I will respond to him on it, but I make clear to your Lordships that I have not formed any view on it at the moment.

The noble Lord, Lord Empey, raised the important matter of training of our Armed Forces personnel. There were echoes of the overseas operations Bill when the noble Lord made that point. I can confirm that serious regard is given to training and we deliver all necessary training. It is important that all our service personnel, at all levels, fully understand the obligations placed on them by both UK law and applicable international law. I can confirm that the training is also reinforced ahead of deployment on operations. For example, civil servants deploying in key roles to operational theatres and in key operational policy roles in the MoD also receive training in the law of armed conflict. In addition, each commander deployed in a military operation will have a dedicated military lawyer available at all times to give them specific legal advice. I hope that reassures the noble Lord that we endeavour to service this important issue in the best possible way.

The noble Lord, Lord Bhatia, raised the issue of pensions to dependants. I undertake to write to him separately on that matter.

In conclusion, I thank noble Lords for their contributions. As the noble Baroness, Lady Smith, said, that is the accepted lexicon of any wide-ranging and interesting debate, but that is just what this rather unusual continuation order debate has been. It is unusual because the debate is on continuing the current Armed Forces Act 2006 but, in doing so, we have an opportunity to see the Government’s proposals for the future of the 2006 Act. Today’s debate has made it clear to me that there will be an extremely interesting and lively debate on the Armed Forces Bill later in the year.

In the meantime, there is the much simpler task of continuing the current Armed Forces Bill. Everyone in this House agrees that we owe our men and women in the Armed Forces a tremendous debt of gratitude. We have seen them at their very best, particularly in the past year. The support of noble Lords for this draft order not only contributes to Parliament upholding the constitutional position—so eloquently described by the noble Lord, Lord Thomas of Gresford—that the Armed Forces may not be maintained without the consent of Parliament but it reflects the deep affection this House holds for our servicepeople through its support of the draft continuation order.

Motion agreed.