Ukraine: Military Equipment

Baroness Goldie Excerpts

Monday 29th November 2021 Lords Chamber

[Lord Balfe]

To ask Her Majesty’s Government what plans they have to sell missiles to the government of Ukraine; what discussions they had with the governments of (1) Germany, (2) France, and (3) the United States of America, prior to opening negotiations on the supply of military equipment to Ukraine; and what assessment they have made of the impact of any such sales on peace in the region.

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

My Lords, we have signed a number of agreements with the Government of Ukraine to work together and with industry to boost Ukraine’s defence capabilities. This is part of the UK’s ongoing commitment to the Ukrainian defence capabilities and the support announced during President Zelensky’s visit to the UK in October. The UK maintains close dialogue with key allies, including Germany, France and the US, regarding Ukrainian military development. These agreements reflect and underline the UK’s commitment to Ukraine’s territorial integrity and sovereignty.

[Lord Balfe (Con)]

My Lords, in eastern Europe, we seem to be drifting towards a war that we will inevitably lose, since we are outnumbered by about four to one. Would the Minister like to take back to the department the need for a comprehensive conference to deal with the frozen conflicts of eastern Europe, most of which date back 20 years? We need to review the Minsk II agreement and possibly look at an Austrian state treaty solution to the problems of Ukraine. Can we have a new initiative please, and not just a drift to war?

[Baroness Goldie (Con)]

I thank my noble friend for the question, but I do not share his analysis. No one is disputing that there is a serious situation within Ukraine and on the Crimea peninsula. That is precisely why, over the last 20 years, and particularly in the past six years, the UK, along with allies and partners, has been supporting Ukraine with training, in capacity-building missions and maritime and other training initiatives. That is what the recent agreement was predicated on when we signed the treaty with Ukraine on official credit support for UK Export Finance. It is all about supporting that country and helping it to build its military capabilities.

[Lord Coaker (Lab)]

To build on what the noble Lord, Lord Balfe, has just said, it was General Sir Nick Carter, the Chief of the Defence Staff, who only recently spoke of a drift towards an accidental war with Russia. Can the Minister explain to us how, in our desire rightly to stand by our ally in Ukraine and our other allies, we are going to stop that drift to any sort of accidental incident or war with Russia?

[Baroness Goldie (Con)]

The accidental occurrence to which the noble Lord refers would obviously be very negative and unwelcome, and what all powers, particularly the UK and NATO allies, are anxious to avoid. The noble Lord will be aware that, within NATO, we are focused on dialogue and discussion and on doing what we can to provide support to Ukraine, not in some provocative sense but, simply, in a sensible and supportive manner, helping it to build a capability. A lot of very good work has gone on in that respect, not just from the UK but from our other allies and partners.

[Lord Lancaster of Kimbolton (Con)]

My Lords, Operation Orbital is the long-standing military training package that we have offered to Ukraine for some years. Historically, it has only ever delivered defensive training. Now that we are looking at delivering military hardware to Ukraine, has the time came also to offer lethal training?

[Baroness Goldie (Con)]

My noble friend is quite right in that Operation Orbital was conceived and has been delivered as a training mission, again with the objective of building Ukraine’s military capacity. As I said earlier to the noble Lord, Lord Coaker, this is part of a chain of events—and this is why we are moving on to assist Ukraine with acquiring other support for its military and naval capability. We wish to support an ally and a friend and partner, and make sure that we can use our expertise and skill to enable it to be stronger—that is what this composite package of measures is about.

[Baroness Smith of Newnham (LD)]

My Lords, capacity building is obviously important, but last week the Daily Telegraph reported the defence intelligence chief of Ukraine as saying that there were 92,000 soldiers massing towards Ukraine’s borders. Can the UK Government really help capacity building to the extent that that can be offset? If not, as the noble Lord, Lord Balfe, said, can some other action not be taken so we can begin to look at diplomacy rather than military capacity building?

[Baroness Goldie (Con)]

Operation Orbital, the training arm of what the UK has been doing with Ukraine since 2015, has actually trained around 22,000 Ukrainian troops to date. Operation Orbital delivers tactically focused training to the Armed Forces, such as medical logistics, counter-improvised explosive device training and maritime and air domain training. We have other training initiatives as well. In addition, we support Ukraine in the defence reform space, and we do that with our allies, so a great deal of support is being given to Ukraine. We regret the attitude and posture adopted by Russia and urge it to de-escalate pressure and help to stabilise the region.

[Lord Robathan (Con)]

My Lords, the Question refers to “peace in the region” but, unless I have got it wrong, it is Russia that has invaded South Ossetia, annexed Crimea, Moldova and now Donbass. Surely nobody can doubt the malign intent, and determination for aggrandisement of Putin’s regime. Does my noble friend agree that to take a disinterested or neutral stance on the conflicts in Ukraine would be to the detriment of world peace?

[Baroness Goldie (Con)]

My noble friend is correct in his analysis that the perpetrators of the pressure are indeed the Russian Government. We have significant concerns about their aggressive pattern of military build-ups on Ukraine’s border, certainly in the illegally annexed Crimea. That behaviour is unacceptable. We and our allies are monitoring the situation and continually call on Russia to adhere to its international obligations and commitments.

[Lord Truscott (Non-Afl)]

My Lords, anyone who has studied Russia knows that if the Ukrainians try to retake the Russian-populated areas of Donbass and Crimea by force, Russia will go to war. Meanwhile, as the Minister said, we are providing lethal weapons to Ukraine, training its military and providing loans so that it can buy military equipment. May I press the Minister to say what effort Her Majesty’s Government are making to seek a peaceful solution to this conflict?

[Baroness Goldie (Con)]

The noble Lord will be aware that we engage in discussions with and make representations to Russia. Indeed, the Prime Minister spoke to President Putin on 25 October and was very clear about the views that we hold. We understand and sympathise with Ukraine, which obviously feels vulnerable, and it is our duty along with our allies and partners, particularly in NATO, to provide support and reassurance. That is what we are endeavouring to do.

[Lord West of Spithead (Lab)]

My Lords, the greatest risk to the survival of mankind is not global warming, it is an accidental thermonuclear war. One has only to look at the dreadful behaviour of Putin, not just around Ukraine but in a number of other ways, and his very loose talk about his de-escalatory policy of using a nuclear weapon should he be losing a conventional war, to see what the real risks are. I believe it is very important that we get the people who were around the table in Minsk when we made the Ukrainians get rid of their nuclear weapons who have failed since that time in terms of their handling of Russia. Does the Minister agree? We dealt with Crimea badly; everything that has happened with Ukraine has been dealt with badly. We need urgently to get back round the table or there will be a mistake—and, goodness me, that will be it.

[Baroness Goldie (Con)]

That would be a very alarming prognosis and a very unwelcome outcome, which I obviously hope can be avoided. The noble Lord is aware of the programme of engagement that has continued over a number of years with Ukraine. It is not just on the part of the UK, it is with our other allies, not least, as I said, within NATO. Ukraine enjoys a strong bilateral relationship with the United Kingdom; it is a relationship that we value and nurture and, as recent events have indicated, is it one that we support by deeds in addition to words.

[Baroness Bennett of Manor Castle (GP)]

My Lords, the noble Lord, Lord Balfe, asks about the impact of arms sales on peace in eastern Europe. In the light of the US and allied withdrawal from Afghanistan, the broader pursuit of “America first” policies from Washington, and the fact that the UK is the world’s second-largest arms exporter, with the majority going to the Middle East, are the Government reviewing all arms sales and indeed the place of the UK arms industry? Are they truly counting the cost on UK and global security of our arms industry?

[Baroness Goldie (Con)]

The UK Government take very seriously our responsibility for the security of this country and our support for our global allies. That is why we have a strong defence capability. The noble Baroness will be aware that exports of arms and weapons are monitored extremely closely under a very robust regime.

[The Lord Speaker (Lord McFall of Alcluith)]

My Lords, that concludes Oral Questions for today.

Armed Forces Bill

Baroness Goldie Excerpts

3rd reading
Monday 29th November 2021 Lords Chamber

Moved by

[Baroness Goldie]

That the Bill do now pass.

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

My Lords, it has been a great pleasure to lead the Bill through this House. It delivers on the manifesto commitment to strengthen the legislation of the Armed Forces covenant that will deliver for the Armed Forces community across the United Kingdom. It further strengthens the service justice system for our Armed Forces, wherever they serve. Most importantly, 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.

I therefore convey my deep gratitude to all noble Lords for supporting the Bill and for their invaluable contributions to our extremely incisive and well-informed debates. Undoubtedly, this is a marked tribute to your Lordships’ shrewdness, the depth and breadth of knowledge and the passion that has persistently shone through when debating issues affecting our Armed Forces. I particularly express my appreciation for the constructive engagement made possible by the noble Lords, Lord Coaker, Lord Tunnicliffe, Lord Thomas of Gresford and Lord Dannatt, the noble Baroness, Lady Smith of Newnham, and the noble and gallant Lords, Lord Boyce, Lord Craig of Radley and Lord Houghton of Richmond.

It is an incontestable fact that all within this House have bought into the spirit of what this Bill seeks to achieve. We all want to do the very best for our Armed Forces community, from the sailors, soldiers and aircrew at the forefront of operations around the world, to the veterans whose days of active service have long since passed, and to the families who unstintingly provide support and are the bedrock to their success. I thank your Lordships for their continuing interest in the Armed Forces.

It would be unacceptably remiss were I not to acknowledge and thank the Bill team under the formidable leadership of Jayne Scheier, supported by her able and committed colleagues. There is a lot of technical detail in the Bill, with complex legal consequences, and the team’s guidance and expertise has been exemplary—as has their patience in supporting a Minister who I am sure must have been very irksome at times.

Before I finish, I remind the House again of the undertakings I made both in Grand Committee and on Report that I will keep the House informed of progress on the recommendations of Sir Richard Henriques’s review. We expect to submit very shortly our response to the House of Commons Defence Committee’s report on women in the Armed Forces; that response is detailed and substantial. This Bill now passes from my stewardship to my colleagues in the other place—so, over to them.

Finally, I pay tribute to the courageous, professional and dedicated men and women in our Armed Forces. We are proud to have the best Armed Forces in the world and, ultimately, this Bill is for them. I beg to move that the Bill do now pass.

[Lord Coaker (Lab)]

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

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

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

[Lord Craig of Radley (CB)]

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

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

[Baroness Goldie (Con)]

I thank the noble Baroness, Lady Smith, and noble Lords across the Chamber for their contributions. They reflect what I said in my remarks: we are all united in our admiration for, and desire to support, our Armed Forces. I thank noble Lords for these helpful and constructive comments.

Bill passed and returned to the Commons with amendments.

Army Restructuring: Future Soldier

Baroness Goldie Excerpts

Thursday 25th November 2021 Lords Chamber

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

My Lords, with the leave of the House, I should like to repeat a Statement made by my right honourable friend the Secretary of State for Defence earlier in the other place. The Statement is as follows:

“With permission, I would like to update the House on the details and implementation of the Army’s future capabilities, structures and basing. In March I stood here to announce the outcome of the defence Command Paper, part of our integrated review. I said that we must adapt to new threats, resist sentimentality and match our ambitions to our resources if we are to field Armed Forces that remain relevant and credible for the challenges of the future. I also said that we owed it to our service personnel to ensure we now turn that policy into reality, and that the work to do so had only just begun. The Army was tasked with undertaking the most significant modernisation in a generation and, after an intensive period of planning, for which I am especially grateful to the Chief of the General Staff, General Sir Mark Carleton-Smith, Brigadier Clark and the rest of the team, I can now announce the details of its plans, entitled Future Soldier.

Let me begin by paying tribute to those soldiers, the brave men and women of the British Army. To me, they are the finest in the world. Yesterday, we witnessed soldiers alongside colleagues from other services parade outside Parliament. It was an opportunity not just to pay tribute to their extraordinary endeavours during Operation Pitting in helping to evacuate some 15,000 people in a matter of weeks or to thank them for their service and sacrifice throughout the decades-long Afghan campaign. It was also a reminder that the Army that departed Afghanistan was a very different one from that of 2001.

The Army of the future must adapt even more radically if it is to adapt to the threats of the future. Let us be clear: those threats are proliferating ones, from increasing humanitarian crises to evermore capable and determined violent extremists and proxy forces, and the ever-present spectre of great power competition. To keep pace with the changing character of warfare, our Army must be forward-looking, adaptable and embracing of new ways of working, as much as new weapons and technologies. Not only must it have the best force structure to counter an ever-growing range of threats to the UK, our people and interests, but it must achieve our ambitions on schedule and in budget.

Thanks to the Prime Minister’s record settlement for defence, announced at last year’s spending review, we have been given the time and resources to undertake the generational modernisation that defence needs. Far from being deprived of investment, as some claim, we are injecting £41.3 billion into Army equipment and support this decade—£8.6 billion more than had been planned prior to the integrated review. We are using those funds to create a modern, innovative and digitised Army. Our future Army will be leaner but more productive, prioritising speed and readiness over mass mobilisation but still over 100,000 strong—integrating regulars and reserves, as well as all the civil servants and partners from the private sector.

As the Chief of the General Staff has said, it must be an Army that places a premium not just on mass, but on critical mass: relevant, networked, and deployable. So the Army will be reorganised to operate on a continuous basis, fielding all the relevant capabilities for this era of constant competition and persistently engaged around the globe, supporting our partners and deterring our adversaries. But, crucially, it will also be an Army designed for genuine warfighting credibility, as an expeditionary fighting force that will be deployable and lethal when called upon to fight and win.

Since the publication of the defence Command Paper, my officials have worked hard to finalise a reform programme to deliver our priorities at home and abroad. Our future soldiers will find tomorrow’s Army has six distinct elements.

First, it will be globally engaged, with more personnel deployed for more of the time, employing a new network of regional hubs based on existing training locations in places such as Oman and Kenya.

Secondly, it will be a key contributor to NATO warfighting, capable of fielding a division throughout the decade as we transition to the new capabilities for a fully modernised warfighting division by 2030.

Thirdly, it will be enhanced by state-of-the-art equipment, including upgraded tanks and digitally networked armoured vehicles, as well as long-range precision strike, cyber and electromagnetic capabilities.

Fourthly, it will exploit innovation and experimentation to get ahead of the evolving threats. Not only will the Army share the £6.6 billion of defence’s increased R&D investment, but next year both the new British Army battle lab and a dedicated unit, the Army trials and experimentation group, will be established to stay at the cutting edge.

Fifthly, it will have integration at its heart, bringing together regulars, reserves, and civil servants to form a more productive force with warfighting and resilience at its heart and cross-government working in its DNA.

Finally, it will be an Army that benefits the whole of our union, with an increased proportion of the Army based in each of the devolved nations and expenditure contributing to prosperity throughout the United Kingdom under our upcoming land industrial strategy.

I am pleased to report we have already made substantial progress. When it comes to global engagement, we have formed the new Army special operations brigade in which the new ranger regiments will sit, established the security force assistance brigade, and set up a NATO holding area in Sennelager in Germany. In terms of warfighting, we have reinforced NATO’s Allied Rapid Reaction Corps, established new brigade combat teams, and reinforced the Army’s global response force.

Over the next five years, implementation will continue apace. At the end of this year, our new ranger regiment will reach initial operating capability. By mid-2022, our new deep recce strike brigade combat team will be established. By the autumn of next year, two battalions of the Mercian Regiment will merge to form a new Boxer-mounted battalion in one of our armoured combat teams. The recapitalisation of major equipment is also already under way. I am determined to do everything within our means to accelerate the introduction of Challenger 3 tanks, with an ambition for their delivery to units starting from 2025 onwards.

Likewise, we are transitioning to Boxer armoured personnel carriers from the retiring Warrior, with units receiving vehicles from 2023. We are resolving development issues with the troubled, but none the less technically capable, Ajax armoured reconnaissance vehicle. We are upgrading the battle-proven Apache attack helicopters, while investing in everything from long-range precision strike ground-based air defence, to uncrewed aerial systems, electronic warfare and tactical cyber. These cutting-edge capabilities will be wielded by the newly restructured brigade combat teams: self-sufficient tactical formations with their own combat support and logistics. They will include 16 Air Assault Brigade Combat Team and a new aviation brigade combat team, which together will form our global response force providing defence’s rapid response to crises overseas.

I turn now to our plans to streamline the Army force structures. For too long, historic infantry structures have inhibited our Army’s transformation. We cannot afford to be slaves to sentiment when the threat has moved on. So today I can confirm a major reorganisation under four new administrative divisions of infantry: the Queen’s Division, the Union Division, the Light Division, and the Guards and Parachute Division. These divisions are designed to reflect historic ties, while also balancing their numbers of battalions and unit roles, offering greater flexibility and opportunity to soldiers of all ranks.

As announced in March, these plans do not involve the deletion of any cap badges, further major unit changes or any military redundancies. While we are significantly reducing the total number of Army personnel, we are not compromising our presence in and contribution to the devolved nations. While numbers will reduce slightly everywhere except Wales, we are increasing the proportion of the Army based in each nation and investing millions in their defence industry and estate.

Northern Ireland will keep the same number of battalions but host a greater proportion of the Army’s workforce and gain an additional reserve company of the Royal Irish. Scotland will be home to more battalions, going from six to seven units, and a greater proportion of the Army than today. We will be retaining Glencorse barracks, and we will grow in Kinloss and Leuchars thanks to £355 million investment in the Army estate, delivering more than £1 billion of economic benefits.

Wales will see the return of the Welsh cavalry, the Queen’s Dragoon Guards, to Caerwent barracks and a new reserve company of 3rd Battalion The Royal Welsh established in north Wales. The retention of the Brecon barracks and the growth in Wrexham are just part of a £320 million investment in the Army estate in Wales. I know colleagues will be enthusiastic to learn the basing implications for their own constituencies, and the full breakdown of the Army’s new structure will be able to be found on GOV.UK after this Statement, or by clicking the link through the ‘Dear colleague’ letter that will be distributed.

Our future Army will be as agile in the new domains of cyber and space as it is on the ground. It will contribute the most personnel of all the services to those enhanced information age functions, such as the National Cyber Force and Defence Intelligence, which are so critical to our new integrated force. In practical terms, this amounts to an additional 500 regular personnel, taking us from 72,500 personnel to 73,000. This will not incur any additional cost, since these positions had already been budgeted for within our spending review settlement. Together with the more than 10,000 Army personnel who work in other parts of defence, we will now have a new headline regular Army figure of 73,000, as I said.

As I said back in March, the size and capabilities of our Army must be dictated by the threat. What we can show on paper, or even muster on parade, matters little if we cannot rely on those numbers when it counts or deliver the relevant capabilities required. Unlike the purely financial or numerically driven reviews of the past, we have taken a positive, pragmatic approach, matching our size to the current security environment and the current ambition of this Government.

Mr Speaker, transformation on this scale—every single unit will be affected in some way—requires radical structural and cultural change and that change must start at the top of the Army. So, by 2025, the Army’s headquarters will be reduced by 40% regular personnel, and reserves integration will be made more productive across the force. Notably, the Covid pandemic underlined the need for resilience structures that can cope with crises on the home front, so a new reserve brigade based in York will ensure we can provide forces at the point of need. Simultaneously, we will be strengthening our Army’s institutional foundation across the United Kingdom by establishing regional points of command.

Our Army has always been defined by its people and their adaptive, resilient, determined and diverse qualities, so this review puts investment in human capital first. The more we use our people, the more we must make sure they are properly supported. That is why we will be modernising individuals’ careers and family assistance, all of which will be consolidated in an Army people plan published in the new year.

Finally, in this more competitive age, we will ensure that equipping our people with the ability to understand, compete, and fight across all domains is firmly at the forefront of defence policy-making. This is an Army that we can remain proud of, not just for its historical achievements or the ‘top trumps’ comparisons of numbers of tanks and people in its ranks, but because it is an honest force that is credible and relevant, relentlessly adapting to confront the threats to this nation and to meet the challenges of the future.

We will change the way it operates as much as the equipment with which it does so and evolve culturally as much as structurally, to place our future soldier in the best possible position to compete in all domains, both new and old, to shape our world for the better. Like their forebears, I am certain they will grasp these opportunities with both hands. It is certainly an Army I would have liked to have served in.

I am certain that this modernisation programme will allow them to do just that and ensure the Army remains both relevant and credible, in support of our Prime Minister’s vision for a global Britain that is a safer, stronger and more prosperous place. I commend this Statement to the House.”

--- Later in debate ---

[Baroness Smith of Newnham (LD)]

My Lords, I am grateful to the Minister for repeating the Statement and am glad we have gone back to having Statements repeated, rather than them being assumed to have been read. I have just come straight from the debate on genocide, led by the noble Lord, Lord Alton; I was trying to read the Statement during that debate, but it was such an important debate that it was quite difficult to read anything. It has been very helpful to hear the Minister, but this is also important to get a sense of the Chamber. When something is read out, you can see reactions.

Like the noble Lord, Lord Coaker, I pay tribute to our Armed Forces. Sadly, I was not in Westminster yesterday, so was not able to help welcome back those from Op Pitting, but obviously the whole nation pays tribute to our Armed Forces, everything they have done in that operation, and the many things done in the 18 months to two years in which we have been dealing with Covid.

As the noble Lord, Lord Coaker, pointed out, we are now using our Armed Forces very extensively, yet we seem to think we can have them ever reducing in size. I am a bit worried about this idea of the “future soldier”; I am hoping there will be more than one of them and that this is not a Matchbox idea of an identikit soldier, but rather a strange, generic name meaning the 73,000 personnel that I think we will have as full-time regulars.

I found the Statement extremely confusing, and I do not think it was the way the Minister read it or my inability to read the statistics at short notice. As the noble Lord, Lord Coaker, pointed out, we had a headline goal of 82,000 personnel, which was going to be reduced; at the moment, we are on only about 76,000 anyway. We are now told that another 500 soldiers means an increase to 73,000, but that is still fewer than we have at the moment, so will we see cuts or increases and is this anything more than hypothetical?

At one point, we were given the figure of over 100,000 personnel, including the reserves. Could the Minister clarify what assessment the Government have made about the actual number of personnel needed in an integrated force of regulars and reserves? What will the total target number be and is 500 actually an addition or not?

The second area where there is something a little misleading is the fact that one of the five points we are supposed to take away from this Statement is that there are benefits for the

“whole of our union, with an increased proportion of the Army based in each of the devolved nations”.

That sounds wonderful, but then you look at the detail and realise that that means a larger proportion of a smaller force, so that, with the exception of Wales, the devolved nations will have not actually more personnel serving but just a larger proportion. I am not sure that will feel like a real bonus in Scotland or Northern Ireland. Could the Minister explain how the devolved nations will actually benefit, in a tangible way?

Finally, on capabilities—sorry, it is not finally, I have two more points. On capabilities, the Statement says:

“We are resolving development issues with the, nonetheless technically capable, Ajax armoured reconnaissance vehicle.”


Can the Minister reassure us that this vehicle will ever come into service? Is it really fit for purpose?

My final point is that we have had the Armed Forces Bill going through this place. We are almost at the final stages, but we have talked a lot about AI. That is touched on in the report. Will there be enhanced training for our future soldiers in artificial intelligence and machine learning, and how will that be brought it into the reduced size of the Armed Forces?

[Baroness Goldie (Con)]

My Lords, I thank the noble Lord, Lord Coaker, and the noble Baroness, Lady Smith, for their comments. A number of interesting points have been raised. I welcome the noble Lord’s acknowledgement of living in a world of new threats requiring new technologies and capabilities. That absolutely is what Future Soldier is all about. The noble Baroness, Lady Smith, used the rather provocative phrase “identikit soldier”. No, this means the absolute opposite; it means a flexible, fluid, resilient force in which we need people of talent and of disparate attributes and qualifications, who will all be able to find a place.

The noble Lord, Lord Coaker, asked a number of specific questions, not least on redundancies. I can say to him that there will be no Armed Forces redundancies as part of any restructuring. He was also interested in the timing in relation to the 73,000. My information is that the reduction of the Army will take place over the next four years, so we aim to reach that figure by 2025.

The noble Lord also asked a question about bases. I have very detailed information about that, and it is, generally speaking, good news. It is a mixture of bases which will stay where they are—some that were threatened with closure have now been reprieved, while others have closure dates that have been deferred. The easiest thing I can offer to do is to write to the noble Lord, because there is a picture pan the UK, so I hope he will forgive me if I do that.

The noble Lord spoke in a slightly bilious tone about equipment. I look through a glass half full rather than a glass half empty, because there is a very good story to tell. With the new shape of the Army, we are recognising that innovation, technology and digital transformation all have a role to play. Part of it is recognising sunset capabilities, which will be phased out, but, as I mentioned when I repeated the Statement, there are really exciting prospects, whether with Boxer, the Challenger 3 version of the tank or some of our new technical innovations.

The noble Lord asked specifically about Ajax. That remains at the heart of the Army’s plans for a modernised fleet of armoured vehicles for the future. We are not underestimating the challenges which have emerged in the developmental stage, but that is not in any way to diminish the potential of what will be a hugely important addition to our capability. As the noble Lord knows, the MoD and General Dynamics are currently working on and committed to identifying the root causes of the noise and vibration issues, and want to deliver a safe solution. So, rather than being pessimistic about equipment, I think that we can be very optimistic. It is part of a conjunction: not only do we have to get the correct configuration of the Army but we have to make sure, as I said in repeating the Statement, that it has the equipment that it needs.

The noble Lord raised an important point about Covid support and the extent to which we have been deploying our Armed Forces—I think that we would all want to thank them for this—in responding to the challenge of Covid. They have made a vital contribution on behalf of the country to supporting us all as we come through this pandemic.

The noble Lord hit on a very important point. One of the most exciting features of this Statement is that at long last it not only gives the reservists recognition and definition but acknowledges that they are an essential part of a whole-force approach. The reservists can offer us additional skills, expertise and talents that we may not readily have to hand within our Regular Forces. The recognition that the reservists have a tremendous potential to support us in a lot of the resilience work—hence the new unit in York—is an important development on that front. So I wish to reassure the noble Lord that, far from depleting availability of resource, the new proposals augment and sustain that facility.

The noble Lord asked rather mischievously whether this was the last major Command Paper and whether we could expect another one. I am old enough and long enough in the tooth to say sagely that we do not know what is around the corner. We make decisions for the best of reasons at the times that we make them. These decisions are based on a robust assessment of what threats are and where we are in relation to responding to them in the world we live in, where we now have technologies that we did not dream of 10 years ago. I think that the noble Lord will understand that we are responding to that as a Government innovatively, imaginatively and positively, and this is a very positive development for the Army.

The noble Baroness, Lady Smith, asked about the 73,000 figure and the extra 500. I reassure her that these 500 people are not imaginary; they already exist. They are already budgeted for under our existing structures. They are people of particular skill and talent who have been identified and who can be deployed to these specific technical areas. Yes, inclusive of the reservists, we expect a total force of more than 100,000, and that is a very impressive capability.

The noble Baroness asked about benefits to the union and whether, at the end of the day, we are not giving the different countries within the union a rather poor deal if we are reducing the overall size of the cake. I absolutely disagree with that. I think, as we know, Wales in particular will see an increase. In Northern Ireland and certainly in Scotland, we will see a sustained commitment to the presence in those two parts of the United Kingdom, and that is very healthy. In the case of Scotland, we will see an additional unit, retention of premises that some people were very speculative about and thought would be closed—they are not going to be closed—and a major increase in the presence over and above the Army. In Scotland, if we take into account the submarine headquarters now based in Clyde, HM Naval Base Clyde, and the huge expansion at RAF Lossiemouth to accommodate Poseidon, which has been a big development, with the intention that Wedgetail will go there as well, we have an overall figure for regulars and reserves across the three forces of approximately 14,500 people. That is a very significant presence, and I know that it is a presence that is considered very positive by people in Scotland.

The noble Baroness asked basically whether the Army was fit for purpose. The answer is yes, but, without this, it might not have been. We will be able to field a fighting division in the future; we will be able to respond to our allies and supporters. The noble Lord, Lord Coaker, raised a point in relation to NATO. He is quite correct: we will honour our obligations to NATO. It means that our Army will be better connected, faster and pound for pound more lethal than ever before. It will be integrated across domains with allies in NATO and beyond.

The noble Baroness’s final point was about artificial intelligence, and she had a pertinent question about whether we were sure we were getting the people in that we will need. That is a very relevant and important question. The answer is that we will continue to recruit great people—we have great people, but we will continue to recruit them. There is a need for a broader range of skills, including digital and cyber experts, so the Army will transform the way in which it identifies talent and how it trains its people. There will also be a step change in Army education and professional upskilling, all of which is relevant to what we are trying to do. As I said in the Statement, this is an investment in the human element of the Army, not just an investment in structure, buildings and equipment. We are investing in our people to give the Army the intellectual edge that it needs. I hope that that reassures the noble Baroness.

I think that I have dealt with the questions that were raised, but I shall look at Hansard and, if I have missed anything out, I shall undertake to write to the noble Lord and the noble Baroness.

[Lord Harries of Pentregarth (CB)]

I thank the Minister very much for her Statement. Like other noble Lords, I pay tribute to our Armed Forces, particularly those who have been serving in recent years in Afghanistan under such testing and difficult circumstances.

Obviously, the main thrust of the Statement—rapid deployment and cutting-edge technology, particularly cyberwarfare—is absolutely right. However, as one of the diminishing number of people who served in the mid-1950s, when, if my memory serves me correctly, we had 1 million soldiers in the British Army of the Rhine alone, it comes as quite a shock that we are now talking about an Army of only 100,000 or so. What particularly worries me is that, in recent years, recruitment, even to this number, has not been satisfactory; there has always been a shortfall. What new strategies are there to ensure that this number of 100,000 is at least maintained? Of course, in this new Army, reservists, as the Minister rightly said, will play a significant role, with something like 27,000 of them. Is the Minister satisfied that the number of people with the right qualifications are coming forward for the reserve element in the Army?

[Baroness Goldie (Con)]

I thank the noble and right reverend Lord very much indeed. He raises two important points. On recruitment, he is correct that challenges with recruitment were identified, and the approach to recruitment changed—and, actually, the position has turned around and is very encouraging. Part of what we are doing is to try to ensure that the Army represents an attractive career with an attractive future. Therefore, we are optimistic that recruitment will not be an issue and there will continue to be a good rate of applications to join the Army. We have no reason to think that that will not materialise.

On reservists and skills, one consequence of this reconfiguration, as I said earlier to the noble Lord, Lord Coaker, is to make this a much more attractive prospect for reservists, for two reasons. It gives them a sense that they are valued, acknowledged and regarded as part of the scene, as it were; whereas I think before that they may have felt that they were on the periphery, additional when needed but not at the centre of activity. This turns that around and makes sure that they are part of a whole-force approach.

The other interesting thing is, with the changes that have been introduced and some of the innovations that have been implemented in very recent times, we are now offering greater flexibility to reservists so they can choose, along with their employers, what is a suitable period of commitment for them. It used to be much more rigid: it was a short period away and then back to the full-time job. We are trying to make sure that that is much more flexible. We think that that will also appeal to a lot of people, depending on where they are in their career in the outside world, and that should facilitate heightened interest in the reserves, and, I hope, encourage more people to sign up to be reservists, in the knowledge that we are tailoring a system that is designed to suit them and their employers, as well as benefiting our whole-force approach.

[Lord Houghton of Richmond (CB)]

There is much to be excited about in this announcement—there is quite a lot of novelty—and, if I turned the clock back, I think it is an Army that I would want to join. I congratulate the architects. My worry is that, despite some presentational sleight of hand, it is an Army that will be some 9,000 fewer—and with that smaller Army the delivery will depend on a number of challenging things. Regardless of what the Minister has just said, it needs a perfect recruiting system. In respect of the reserves, it needs the willingness of employers to release reserves not as a last resort but as an integral part of what the Army needs to function on a daily basis. It also demands the adoption of some robotic and autonomous systems, which currently do not even have a legal framework within which to operate.

More widely, however, I want to turn to MACA—military aid to the civil authorities—which involves such things as assistance with foot and mouth, floods, Nightingale hospitals, post-Brexit supply chains and Covid vaccinations; all those things. Historically, those come out of what is called the Armed Forces’ irreducible capacity, but where within this structure is the irreducible spare capacity to meet the exponential rise in the tasks that relate to the resilience of the nation and which featured in the integrated review as among the principal future threats to the country? You cannot have reserves released by their employers to do MACA tasks in the UK when they form an essential part of making the regular force resilient. I think this House should be worried, despite many of the attractive novelties contained in this announcement.

[Baroness Goldie (Con)]

First, I thank the noble and gallant Lord very much indeed for his initial reaction and for his very helpful observation that this is an Army that he would like to join, as I understood him to say. I think that says a lot.

The noble and gallant Lord raises important issues. He first of all mentioned the reduction in the number of personnel. I think he will be aware of this, but in the past we tended to have numbers in boxes and on pieces of paper, which was very comforting, but actually they did not reflect the number of people whom we could call on if the chips were down. For various reasons, the numbers were perhaps inaccurate, or people were unavailable, and they were not a regular or reliable indicator of who we had to hand. The intention behind all this is that, when we talk about these figures, they represent men and women who are on hand, ready to serve and can be called upon.

The noble and gallant Lord mentioned recruitment. I repeat what I said to the noble and right reverend Lord, Lord Harries of Pentregarth, that recruitment has had fairly positive progress in the past two or three years, and we hope that can continue. On the reservists, again, as I indicated, we have always had an interest in the reserve side of our Armed Forces. There is nothing to suggest that that is diminishing. The whole point about the new structures and flexibilities is that that will be increasingly attractive to them. He made the important point that that is only as good as the willingness of the reservists to be more involved and the willingness of their employers to release them. Attempts have been made to ensure that that is a more flexible territory, whereby reservists benefit from getting long periods off. On the whole, employers have a very positive attitude to reservists, so we hope that that attitude of co-operation will continue.

On AI, the noble and gallant Lord is quite right: it continues, as we discussed during the passage of the Armed Forces Bill, to be an intricate, complex and challenging environment. He is aware that, as far as the MoD is concerned, there is a defence strategy coming out fairly imminently, so I cannot say any more about that, other than to reiterate what I said to the noble Baroness, Lady Smith, that we are very clear that we must recruit to the Army people with skills that we need—and we will need the skills of people conversant with those areas of activity. The noble and gallant Lord makes an important point that we want to be sure that we have personnel who are of a calibre to cope with that new environment.

In relation to overall resilience and the Army’s ability to respond to the MACA requests, we have seen that very vividly and impressively articulated in the response to Covid—it is an important point. Bringing in recognition of the reserves and the appointment of the new company in York acknowledges that we need a way of steadily addressing that resilience issue so that we have a core of people poised to respond to these situations. We do not then necessarily take other forces away from what may be important deployed activity. I wish to reassure the noble Lord that implicit in the new structure is this essential component of flexibility and fluidity, so that there is much more movement and much more of a focus on having people available—maybe in smaller units; I accept that—to go to the job when the job needs to be done, wherever that job arises.

[Earl Attlee (Con)]

My Lords, I am grateful to my noble friend the Minister for repeating the Statement. On the point made by the noble and right reverend Lord, Lord Harries, when I joined the TA in 1974, we had 70,000 men and women in the TA alone. I accept that we need to make changes. There is no room for sentimentality, but I am worried that we are being too ambitious and trying to do everything. I am worried that we have too many chiefs and not enough Indians, at all levels.

Though there are numerous questions to ask about defence policy, I will ask three. It was said in the Statement that we will

“operate on a continuous basis … persistently engaged around the globe”,

with many operations being conducted simultaneously. That sounds great, and I accept that our strategic airlift is well organised, but I understand that it is a limiting factor now. What happens when we deploy a whole division? Do we have the airlift to do so? I do not think we do. The Statement referred to the Challenger 3 tank; the programme sounds hopelessly optimistic in suggesting delivery from 2025 onwards, given the technology involved. Can my noble friend the Minister confirm that Challenger 3 will not have electric drive? Will the engine remain the CV12 engine supplied by Caterpillar, and will it have a diesel common rail direct injection system? My noble friend the Minister may want to write on that point. I will resist the temptation to talk about Ajax.

Finally and importantly, the primary role of the British Army is to train for war, but it sounds like we will be on operations all the time—numerous operations—and in contact with the enemy. There seems little time to train, especially for medium and large-scale operations. Most importantly, do we risk having too high a post-traumatic stress disease bill from continuing operations in contested environments?

--- Later in debate ---

[Baroness Goldie (Con)]

My noble friend covered a lot of ground there. Let me see if I can deal with some of the points. He mentioned the possibility of too many chiefs, but I would make two observations. First, as was indicated in the Statement, at Army headquarters, there will be a 40% drop in the number of regular Army personnel, so that is one way of reassuring the Chamber that we are alert to the need to simplify the structures. The other thing implicit in the new structures is that we are providing opportunities for people to join and see career progress. If we have chiefs, we want them to be the right people —in my case, I want them to be women as well as men. If we can broaden the base, which is what this is all about, and provide more channels for activity and for operational work, we will get more people into these units, and they will see a fulfilling career ahead of them.

My noble friend was a little pessimistic about whether we are biting off more than we can chew. I would say no, we are not. The Army will continue to be a fighting entity and to have a warfighting division at its heart. The future structure will comprise two deployable manoeuvre divisions—the 1st and 3rd (UK) Divisions—and one information, manoeuvre and unconventional warfare division, which is the 6th (UK) Division. Thought has been given to what we are trying to do and how we do it.

On the Challenger tank, I am afraid my mechanical engineering knowledge is way short of what is necessary to reply to my noble friend. I will offer to write to him, which I hope is acceptable to him. His final question was on the important matter of the welfare of our Armed Forces. Indeed, I have a sense of déjà vu here, because we talked about this at length in our debates on the Armed Forces Bill. At the heart of what the Government and the MoD do with our Armed Forces is their welfare and well-being. Very important developments have been made in that field. I would hope that my noble friend’s prognosis as to the future would not manifest greater instances of people suffering from post-operational trauma or from mental health issues. We want to ensure that our Armed Forces personnel operate in environments where, with the support and advice that they get, they are spared that. If there are people who are unfortunately affected by such health conditions, we absolutely will make sure that we are in there supporting them, whether directly within their Armed Force environment or through many of the other support agencies available in conjunction with the MoD and the NHS.

[Lord Berkeley (Lab)]

My Lords, there are many things in the Minister’s Statement that I welcome, and a more high-tech, more professional military with the most modern equipment is something that I think we all welcome. What worries me is that the Statement mentioned the word “global” four times. Do we really think we are a global power any more? We have one aircraft carrier, I think, which is fiddling around in the China Sea; maybe it has some Ajax tanks on trial there, but do we think we are going to invade China with it? We are getting to be a bit naive on this. Surely the time has come to get rid of some of this gear and concentrate on the humanitarian elements that the Army does and has done so very well, and to cut out some of these vanity projects that, to me, are just a massive waste of money.

[Baroness Goldie (Con)]

I can see that the noble Lord is not filled with festive enthusiasm for the Statement. I disagree with his assessment; I think that being a global power is not about chest-beating or trying to talk big and look big. Being a global power is about trying to make sure that, where you can work with allies and partners who share the same values, then, together on a global basis, you can influence agendas and bring support to where it may be required.

The noble Lord said that he thought we had one aircraft carrier. I am pleased to inform him that we in fact have two. I am also pleased to inform him that Carrier Strike Group 21, which has been operating over the last few months, most recently in south-east Asia and the Indo-Pacific, has proved an amazingly effective convening power. I can tell the noble Lord at first hand that the interest of other powers in what we have been doing has been extraordinary. They want to understand what we are doing, they want to visit and be on the carrier, and they want to be part of that activity. It is not about going around the world threatening people; it is simply making sure that we are a global presence, that we have a convening power and that we can reassure our friends and allies in different parts of the world that we are in the business of wanting to stand with them, shoulder to shoulder, and to support them if they feel in any way intimidated, never mind threatened. That is what we try to do.

The noble Lord suggested that there is a binary choice between having an effective defence capability—which of course is what the Government want and, I would argue, is very much what we do have—and dealing with humanitarian challenges. It is not a binary choice; the obligation of a responsible state is to deal with both. It is in fact our naval and military capabilities that enable us to respond to humanitarian situations. He makes an important point, but I do not think that it is a question of one or the other—you try to address both.

I certainly disagree with his somewhat depressed assessment of where we are. What we are doing with our defence capability in the United Kingdom is positive, strong, necessary, effective and, let me tell him, much admired, not least in NATO. He has a vision of what is meant by the phrase “global power”, but it is not about some Victorian caricature of people strutting around looking self-important; it is being at the cutting-edge of the real-life, 21st-century global existence and trying to be a presence for good within that.

[Viscount Waverley (CB)]

My Lords, the future size has been referred to. Keeping the peace necessitates preparing for war, with the potential need for rapid escalation. What consideration has been given by planners to the capability to react on parallel fronts, given that this is a regrettable possibility?

[Baroness Goldie (Con)]

The noble Viscount raises a good question. I would say that, implicit within the reconfiguration of what we are doing, is the very desire to introduce the flexibility to which he is referring, so that we have the capacity to respond quickly and effectively if a need arises. I think if he looks not just at the size of the Army but at how we now propose to restructure it into, I think, a much more intelligent way to address threat, wherever it is found and in whatever form it manifests itself, he will see that this is a very reassuring way forward to do just that.

Armed Forces Bill

Baroness Goldie Excerpts

Report stage
Tuesday 23rd November 2021 Lords Chamber

[Lord Robathan (Con)]

My Lords, if I may intervene briefly, I will start with a confession: I have not read the Mutiny Act 1689, to which the noble Lord, Lord Thomas, referred so eloquently. But I have a little experience, in that I have sat on a court martial as part of the board. I have never been court-martialled, I am glad to say, but I have experience of military justice—some decades ago now, because I am getting old. I also have some experience of it from working in the Ministry of Defence in the coalition Government. The Bill as a whole tries to make the criminal justice system in the military better. It is all to be applauded, and I am particularly impressed with the setting up of the defence serious crime unit.

I found a slight contradiction in the amendments that we are discussing today; perhaps it might be explained later. Is it because defendants—typically soldiers—are too harshly treated that they should have trial by jury? When I was serving, my experience was that, in the military justice system, there was a certain attitude: “If he is before a court martial”—it was almost exclusively a “he”—“he must be guilty”. Or is it because, as it says in Amendment 25, we need to improve the rates of conviction for serious offences? This seems to be a slight contradiction.

Is it because people do not like the whole courts martial system? That is a serious question to be addressed. In my experience, which is aged and limited, the courts martial system works pretty well, so let us know exactly why it should be that we wish to change it for these matters—and I know Judge Lyons has said so. Notwithstanding the comments of the noble Lord, Lord Thomas, that we should not consider discipline to be part of this, it is very important that we have a disciplined force. That is why we have courts martial, though no longer the death penalty for mutiny.

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

My Lords, I am delighted to join your Lordships in the Chamber this afternoon on Report to discuss these proposed amendments to the Armed Forces Bill. This is an important Bill. I know it enjoys support across the Chamber, but interesting issues have arisen and merit discussion.

I also observe that many of the issues that were vigorously and articulately debated in Committee have resurfaced. That was a good debate, probing the legislation for the Bill. Please be assured that I will endeavour again to address the points raised and to dispel the concerns that noble Lords have around the Bill.

Your Lordships may take comfort that I am as passionately driven as anyone in this Chamber to ensure that we deliver the best for our service men and women, our veterans and their families, balanced against the resources to hand. I say with confidence that the Bill seeks to achieve that overriding objective. I am grateful to my noble friend Lord Robathan for acknowledging that this is exactly the improvement that the Bill seeks to deliver.

With that said, I will now speak to Amendments 1, 2 and 25. Just for the avoidance of doubt, I understand that the noble and learned Lord, Lord Morris of Aberavon, will not now move Amendment 25, and therefore I propose not to use my speaking notes and have a Mogadon effect on the Chamber. If the noble and learned Lord is content with that, I can perhaps shorten this debate a little.

Amendments 1 and 2 focus on the service justice system. I thank the noble and learned Lord, Lord Morris of Aberavon, for tabling Amendment 1. It seeks to amend Clause 3 so that a circuit judge or a High Court judge can be nominated by the Lord Chief Justice to sit as a judge advocate only when they are ticketed to deal with cases of murder, manslaughter and rape.

First, I reassure your Lordships that judge advocates hearing murder, manslaughter and rape cases in the courts martial have the same training and requirement for ticketing as judges hearing those cases in the Crown Court. The Judge Advocate-General and all judge advocates sit in the Crown Court for up to 60 sitting days a year and are as qualified, capable and well trained as civilian judges sitting in the Crown Court.

Tickets are allocated based on the Judge Advocate-General’s judgment that a particular judge advocate has the appropriate training, experience and ability to try the case in question. Judges nominated by or on behalf of the Lord Chief Justice to sit as a judge advocate will likewise have whatever tickets are necessary for the case that they will be trying. I trust that this will assure the noble and learned Lord that all the judges sitting in the courts martial are qualified to try whatever case is before them.

There may also be some misapprehension about another situation: when the service courts might need additional judges. As drafted, the amendment would allow only judges ticketed for murder, manslaughter and rape to be nominated to sit in the court martial. The judiciary in the service courts is already able to deal with these serious offences, so the Judge Advocate-General may need to request the nomination of a judge for other reasons. It might be because they have particular expertise or experience that is relevant for another type of offence. There might also simply be a temporary shortage of judge advocates, perhaps when the service courts have an unusually high caseload. A judge nominated to sit in the service court would need to be ticketed only for the particular type of case that they are trying; they would not need a ticket for murder, manslaughter or rape, unless of course they were dealing with those offences. I hope that that reassures your Lordships and, therefore, that the noble and learned Lord will feel able to withdraw his amendment.

I turn now to Amendment 2 in this group, tabled by the noble lord, Lord Thomas of Gresford, and supported by the noble Lord, Lord Coaker, the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Baroness, Lady Bennett of Manor Castle. It seeks to ensure that certain serious crimes—murder, manslaughter, domestic violence, child abuse, rape and sexual assault with penetration—are all tried in the civilian courts when committed by a serviceperson in the UK, unless by reason of specific naval or military complexity involving the service the Attorney-General has specifically consented for such crimes to be tried at courts martial.

By way of preface, I say that it was very clear from our debate in Grand Committee that we all have a common aim: to ensure that, where there is concurrent jurisdiction, each case is heard in the most appropriate jurisdiction. This amendment seeks to achieve this through two procedural safeguards—namely, that there is a presumption that these offences are heard in the civilian courts and that, to overturn that presumption, the Attorney-General’s consent must be obtained.

We accept the need to improve decision-making in relation to jurisdiction, and a key part of that is of course for the civilian system to have a potential role in each case. We differ on the need to restrict the legal principle of concurrent jurisdiction by introducing a presumption in favour of one system over the other, and that is what the noble Lord’s amendment manages to create.

As I said in Grand Committee, the recently published review by Sir Richard Henriques was unanimous on two things, in supporting not only the continued existence of the service justice system but the retention of unqualified concurrent jurisdiction for murder, manslaughter and rape. Importantly, the review found the service justice system to be fair, robust and capable of dealing with all offending. The creation of a defence serious crime unit elsewhere in the Bill will further improve the skills and capability of the service police to deal with these most serious offences. Therefore, we do not believe that a presumption in favour of these offences being heard in the civilian courts is necessary or justified.

We acknowledge that change is required to improve clarity as to how concurrency of jurisdiction works in practice. Instead of introducing an Attorney-General consent function, as recommended by His Honour Shaun Lyons, we believe that a better approach is to strengthen the prosecutors’ protocols and enhance the role of prosecutors in decision-making on concurrent jurisdiction. Independent prosecutors are, after all, the experts on prosecutorial decisions.

--- Later in debate ---

[Baroness Goldie (Con)]

My Lords, I thank all noble Lords for a genuinely interesting and thoughtful debate. I will focus on the amendments that comprise the grouping: Amendments 3 to 7 and Amendment 17. To that end, I thank the noble Lord, Lord Coaker, for tabling his well-intended—I know that that is what they are—Amendments 3, 5, 6 and 7, and I thank the noble Baroness, Lady Brinton, for supporting them.

I was aware during the debate that some contributors made fairly wide-ranging speeches, not least focusing on citizens of Hong Kong and former Hong Kong military service personnel. These are important issues, but I would rather deal with them under Amendment 26, which seems more relevant to that particular area of concern. So, in addressing the amendments in group 2, I will confine my remarks to the issues covered by them.

The purpose of these amendments is to widen the scope of the new covenant duty to the areas of employment, pensions, compensation, social care, criminal justice and immigration in all four home nations. As I made clear in Committee, the new duty created by the Bill is designed to initially focus on the three core functions of healthcare, education and housing. This quite simply reflects those already in statute that are the most commonly raised areas and where variation of service delivery across localities can inadvertently cause disadvantage to the Armed Forces community.

Importantly, future areas of concern can be addressed as and when they arise through the powers in the Bill that allow the Government to widen the scope of the covenant duty, if needed, through secondary legislation. We are working with key stakeholders to establish an open and transparent process by which the scope of the legislation can successfully adapt to address the changing needs of the Armed Forces community.

As a number of your Lordship have indicated, our plan is to use the covenant reference group as the focus of this work. It has a broad representation from the Armed Forces community, service charities, families’ federations, the Local Government Association and senior officials from both central government departments in Westminster and the devolved Administrations. I suggest that the covenant reference group is therefore ideally placed to be closely involved in the future development and running of this process. It will bring the necessary expertise and representation together to best consider suitable additions to the scope of the duty.

I wish to make clear—I am not being evasive or trying to elude or escape responsibility—that we have to be very careful about what we are creating with the Bill, understand how it will work in practice, make assessments, and then have a clearer sense of what may be needed and may require to be added in the future. This will also provide an opportunity for areas of concern to emerge and be highlighted, and it may be possible that these can be addressed through other means.

In adopting this approach, we considered the practicalities of extending the covenant duty to further policy areas, and the timelines involved. Any addition to the scope of the duty will require extensive consultation with stakeholders and the devolved Administrations in order to identify the appropriate bodies and functions to bring into scope and to work through any issues arising as a result of different procedures and legal frameworks in devolved policy areas.

I suggest that a better way forward lies in first working through and resolving any practical implications arising as the new covenant duty in the Bill is implemented. This will give us a good indication of where amendments may be required to better meet the changing needs of our Armed Forces community in the future.

By retaining the flexible nature of the legislation, the Government hope to establish a firm legal foundation for the covenant while avoiding any unnecessary administrative burden. The new duty builds on the existing widespread commitment to the covenant, thereby contributing to a further strengthening of covenant delivery across the entire United Kingdom. That is not in any way dodging the bullet. I am not trying to be evasive; I am trying to explain why I think this a sensible and cautious way to proceed, and I therefore ask the noble Lord not to press these amendments.

I turn to Amendment 4, tabled by my noble and learned friend Lord Mackay of Clashfern, and supported by the noble and gallant Lord, Lord Craig of Radley, the noble Lord, Lord Coaker, and the noble Baroness, Lady Smith of Newnham. The purpose of Amendment 4 is to make central government departments subject to the new covenant duty. This new duty arises when a specified public body exercises a relevant function. Those functions, which are specified in the Bill, are exercised by local authorities and other public bodies, and are not matters for which central government has day-to-day responsibility.

The problem with the amendment as drafted is that it would not, as I far as I can see, serve any identifiable meaningful purpose. I can understand the enthusiasm among opposition Members of this House to land anything they possibly can on the Government. I know that my noble and learned friend Lord Mackay is not motivated by these sentiments and that he genuinely believes that there is an omission here that should be addressed, but I am trying to explain that I am not quite clear what the omission is, and I am certainly not clear how the amendment would address it.

It occurred to me that, in addressing the principle of this amendment, it would be useful to explain the Government’s thinking behind the design of the new covenant duty and how we see it establishing a firm foundation from which to build into the future. I hope noble Lords will indulge me: I will go into this in some detail because my noble and learned friend raises an important issue, and I believe it merits serious discussion and a considered response. I will attempt to give due attention to his amendment.

As I have outlined before, in considering how to take forward our commitment to further strengthen the covenant in law, we looked first at what the covenant has already achieved without being brought into any statutory provision. The considerable number of successful covenant initiatives across many different policy areas shows how the covenant provides a framework through which the widespread admiration and support for our Armed Forces community can flourish, allows scope for innovation and permits future growth. That is why we designed the new covenant duty around the principle of “due regard” as a means of building greater awareness and understanding of the lives of the Armed Forces community, which will bolster, rather than weaken, this support.

We considered carefully which functions and policy areas the covenant duty should encompass, including those that are the responsibility of central government. This required an assessment of the benefits arising from their inclusion, focusing on the purpose of the duty: to raise awareness among providers of public services of how service life can disadvantage the Armed Forces community, and so encourage a more consistent approach across the UK.

We were mindful that central government is responsible for the overall strategic direction for national policy, whereas the responsibility for the delivery of front-line services and their impact generally rests at local level. The Government are fully aware of issues impacting on the Armed Forces community. Indeed, we work with other departments and organisations to raise awareness across all service providers. The inclusion of central government in the scope of the duty was therefore not seen as necessary.

The noble Viscount, Lord Brookeborough, raised a particular issue with reference to Northern Ireland. The key front-line services we wish to target are generally devolved issues. They are not the responsibility of the Westminster Government, so any additions to the scope of the duty in respect of central government would not address the concern he has but would cause a greater disparity in covenant delivery if the—

[Viscount Brookeborough (CB)]

I thank the noble Baroness for giving way. I remind her that when we found that the Executive were not operating on things that they should operate on, as in this case—I am talking about abortion—this Government, from here, overrode the Assembly. Therefore, there is a precedent for doing so.

[Baroness Goldie (Con)]

The noble Lord refers to a very difficult and sensitive issue, and I think he is referring to the time when the Executive were not functioning in Northern Ireland. This Bill is concerned with the actual delivery of services that exist at the moment. It is the responsibility of Northern Ireland’s devolved legislature to deliver health, housing and education, although it may not directly be doing any of these things. That is why bringing in central government does not address the noble Lord’s concern. Indeed, there is an argument that, if you brought in the Westminster Government but not the devolved Governments, there would be an even greater disparity in covenant delivery. The reason the devolved Governments are not in this Bill is that it would seem to be beyond its scope.

I have previously explained that, as we look to the future, the vital element in our approach rests with the new powers granted to the Government in the Bill to add to the scope of the duty. This will allow it to effectively adapt to the changing needs and concerns of the Armed Forces community. We are engaging with government officials and covenant stakeholders to establish an open and transparent process, by which possible additions to the new duty can be thoroughly considered and evaluated, and we expect issues of concern to be raised, as they are now, by members of the Armed Forces community, by service charities and by other stakeholders through our existing networks. So, to be clear, we see no restriction to the nature of any issue raised, including those that fall within the responsibility of central government.

My noble friend Lord Lancaster asked wisely whether it would not have been better to approach this incrementally. I think that is exactly what would be better, and that is what the Government are intending to do. His other words, I think, were about being very wary of doing too much too soon. The reason the Government are being cautious about this is that we are breaking new ground. We are going where Governments have not gone before in relation to the covenant. We hope it will lead to improvement right across the United Kingdom, but we have to assess in practice how this will all work once this legislation has gone through.

The plan, as we look to the future, is for the work to be focused through the covenant reference group, which, as a number of your Lordships are aware, is made up of independent representatives from service charities, such as the Royal British Legion, the War Widows’ Association and the families’ federations, and, as I said earlier, includes senior officials from central government departments at Westminster and from the devolved Administrations. That group plays an important role in working with the Government to set out the overall direction of the covenant. It ratifies the grant-awarding priorities of the Armed Forces covenant fund trust, as it is recognised as having a clear understanding of the issues of most concern to the Armed Forces community.

I think it was the noble Lord, Lord Coaker, who asked about the covenant reference group and its terms of reference. The covenant reference group feeds into the ministerial covenant veterans board, chaired by the Defence Secretary and the Chancellor of the Duchy of Lancaster, and that board last met on 8 November. So, at the senior levels of government, this work is very much on the radar screen and being addressed.

In my opinion, the covenant reference group is ideally placed to be closely involved in the evaluation process, both in terms of its development and the conduct of its work. Where there is evidence to support the inclusion of new bodies and functions, a recommendation will be made to the Secretary of State for Defence, who will then consult with relevant stakeholders. Where a decision is made to exercise the power to extend the scope of the duty, further consultation will be required with key stakeholders before making regulations, which would need to be approved by both Houses of Parliament.

Crucially, any evaluation process must also ensure that extending the scope of the new duty would help to address any perceived problem, as it may not always be the appropriate response and there may be other methods of addressing the areas of disadvantage required under the covenant that do not necessarily require statutory powers.

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[Lord Kerr of Kinlochard (CB)]

I do not disagree with all the good things that the noble Baroness is describing, which the Government have brought about, but I have not heard her address the central argument of the noble and learned Lord, Lord Mackay of Clashfern: that it might be easier for the Government to persuade others to go on doing good things if the Government bound themselves in the same way as they are seeking to bind others. I suppose the noble Baroness could say that the Government feel bound already, but if so, why not spell it out in the Bill?

[Baroness Goldie (Con)]

I am sure the noble Lord has been listening carefully to the argument that I have been advancing, but I have been trying to distinguish between identified, critical core services—in this case housing, education and health, which the Armed Forces community said mattered most to them—and how we address the delivery of these services. In the main, these services are not delivered by central government but by a range of other agencies, and may be the responsibility of devolved Administrations, in turn delivering them through their agencies. The point I am making is that adding an obligation to central government does not seem in any way to address the need that we have identified that has to be addressed: the current disparity in the delivery of services across the United Kingdom. That, quite simply, is what the Bill is seeking to rectify. That is why trying to attach a covenant obligation to central government is something of a red herring—I do not actually see what it is going to deliver.

Before the noble Lord interrupted me, I was simply explaining, by way of illustration, the point I have just been making: exactly what it has been possible for the Government to do without attaching any statutory obligation on them, and I am not even halfway through my list. At the risk of being tedious with your Lordships, I was also going to mention, finally, a new holistic transition policy that co-ordinates and manages the transition from military to civilian life for service personnel and their families when they leave the Armed Forces. The Defence Transition Services also supports those in that position. We have the Career Transition Partnership, and a range of initiatives and support packages covering a wide range of activity, all of which benefit our Armed Forces personnel. I merely adduce that list to illustrate how alternative processes allow areas of concern to be brought to light more readily and addressed more quickly through other means, if necessary, including action to be taken by central government departments and devolved Administrations, where appropriate.

I think it was the noble Lord, Lord Coaker, who specifically raised the evaluation process. This would feed into our existing commitment to review the overall performance of the covenant duty as part of our post-legislation scrutiny. That review will be submitted to the House of Commons Defence Select Committee and will also be covered in the covenant annual report. This is in addition to regular parliamentary scrutiny, such as Parliamentary Questions and regular reviews by the Select Committee, or whatever form of inquiry Members of the other place and of this House may wish to undertake. The detail of the evaluation process is still being worked on with our stakeholders, but I hope that this background and the outline of the process provides reassurance that it represents a better way forward and that we are committed to continuing our work to mitigate the impact of service life on the Armed Forces community, wherever it may occur.

Listening to some of the contributions, it occurred to me that there may be a misunderstanding of the role of the Armed Forces covenant. My noble and learned friend Lord Mackay of Clashfern recalled an interesting and arguably disturbing situation, in which it is possible that Armed Forces personnel suffered harm. I undertake to look at that instance in detail; he provided a reference for where I can find more information.

However, I say to my noble and learned friend that central government, and the MoD in particular, are directly responsible for the Armed Forces, and the MoD has always looked after the welfare of service personnel. During the Bill’s passage through this House, we have heard how the support provided has improved, expanded and developed over time, particularly in relation to issues such as mental health. Central government and the MoD answer to Ministers, are held to account in Parliament, and may be held to account by the courts of this land. But the covenant is a separate concept: it is a promise by the nation as a whole to the Armed Forces community that they will not be disadvantaged because of their service. It brings in other organisations, such as health providers and local authorities, who are not directly responsible for the Armed Forces community but whose decisions undoubtedly affect them. It is this new duty that will ensure that these organisations consistently apply the principles of the covenant and can be confident of the legal basis for doing so. Based on this fairly lengthy explanation, I hope that my noble and learned friend will not press his amendment.

I turn to Amendment 17, also tabled by my noble and learned friend Lord Mackay of Clashfern. I know that he is motivated by the best and most honourable of intentions, but I am somewhat unclear about its purpose. The new definition contained in the amendment adds nothing to the duties already set out in the Bill. Indeed, perhaps disquietingly, it seems to decrease the scope of that duty, which I know is not my noble and learned friend’s intention.

We are clear that the Armed Forces covenant is a promise by the nation to support our Armed Forces community. The amendment characterises the scope and character of that promise as an agreement between the Secretary of State and servicepeople. But, with the greatest respect to my noble and learned friend, in doing so, it fails to capture its essence: it is a much broader and more widely embracing concept.

The covenant was framed during a time of great pressure on the Armed Forces community. As I have described at some length, it has been delivered highly successfully in the succeeding decade because it captures the spirit of appreciation and voluntary support for that community from people of every walk of life across the United Kingdom. This voluntary spirit is why it is called a covenant and framed as something far greater than the more transactional approach that this amendment could engender. To express the covenant in the way proposed by this amendment goes against the spirit of the covenant and the many successful initiatives that it has produced, built on the widespread admiration and support to which I have referred.

The Armed Forces covenant is described on the government website for the Armed Forces, and on the front of the annual report, as

“an Enduring Covenant Between the People of the United Kingdom, Her Majesty's Government—and—All those who serve or have served in the Armed Forces of the Crown and their Families.”

That definition is not in statue, but the principles of the covenant appear in the Armed Forces Act 2006. That is why this Bill has been taking forward greater detail, to try to assist the delivery of vital services for our Armed Forces community.

The description I have just given of the covenant far better captures its nature, which provides the framework through which support for our Armed Forces community can thrive and grow. I thank your Lordships for indulging me with patience and courtesy, as these were important points which had to be addressed at length. In view of the explanation I have given, I hope my noble and learned friend will feel able to withdraw his amendment.

[Lord Mackay of Clashfern (Con)]

My Lords, I thank the Minister for her very detailed answer to my amendment. It was clear to me, from the beginning of this provision titled “Armed Forces Covenant Report” in the 2011 Act, that all that had been done to make any references to the Armed Forces covenant in this was to delete the word “report”. But it seemed to me that, in the ordinary course of statutory interpretation, you need to know what you are talking about, and I was surprised—I thought I must have missed something, though the Minister now confirms that I did not—that there was nothing in statute to define the Armed Forces of the Crown covenant. A covenant is a contract, and it is obvious that the people of the United Kingdom are represented in this agreement by the Secretary of State. Therefore, it seems to me odd that the Secretary of State is not prepared to have regard to the principles given at the opening of this provision. Of course, the term “Secretary of State” includes the Secretary of State for Defence and other Secretaries of State as well, if that is relevant to the provision in question. I find it hard to have the Government of the United Kingdom say that they are not prepared to be bound to have regard to the principles of the covenant.

If I should by any chance be successful, this will go back to the House of Commons, and the Commons will have to ask themselves whether it is reasonable that the Government of this country should refuse to be bound to have regard to the principles of the Armed Forces covenant. I do not think the Government intend that, but that is the effect of leaving this out. Having this on a website is not equivalent, as yet, to having it in law—the statute book is still distinct from a website. It rather comforts me that the definition on the website includes the Government. I think that something of this kind is necessary, and I had rather hoped that the Minister might think of Third Reading as a time to put in a definition, but there is no offer of that kind, and I understand why she is not a position to do that.

I thank all who have supported me, as I think all who have spoken apart from the Minister have, which is a very good situation so far as I am concerned. I am not concerned about anything except that the Armed Forces covenant should be as effective as possible in law in our country. I do not subscribe to the other extensions that were being suggested in amendments because I can see that there is power to do that and, as and when resources are available, it would be right to bring that in by regulation.

In the meantime, I very much regret to tell my noble friend that in all conscience I do not feel able to withdraw the amendment. It is a matter that has to be faced by those who are responsible for this if they are not prepared to subscribe to having regard to the principles of the Armed Forces covenant.

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8: Clause 8, page 15, line 35, at end insert—
“(3A) Guidance under this section—(a) may not be issued unless a draft has been laid before Parliament, and(b) comes into force on whatever day the Secretary of State may appoint by regulations.”Member’s explanatory statement
This amendment would provide for guidance under new section 343AE to be laid in draft before Parliament and for the coming into force of the guidance to be governed by regulations (and is to be read with Baroness Goldie’s amendments at lines 36 and 43 of page 15 and page 18, line 39).

[Baroness Goldie (Con)]

My Lords, I am delighted to speak to the government amendments that will implement specific recommendations of the Delegated Powers and Regulatory Reform Committee in respect of the Armed Forces covenant. Among this group are some minor and technical corrections to the Bill.

The Delegated Powers and Regulatory Reform Committee—whose painstaking work is often unsung and to whom I pay tribute and offer thanks—made two recommendations in respect of the Armed Forces covenant. These relate to the power under new Section 343AE to issue guidance to which public authorities must have regard when exercising relevant statutory functions, and to those who are classed as “service people” and are therefore beneficiaries of the covenant duty. Having considered the committee’s recommendations and recognising the impact these matters may have on the duties imposed on public bodies, we have brought these amendments to provide for greater parliamentary scrutiny in these key elements of the duty.

I will first address government Amendments 8, 9, 11, 12, and 19, which relate to the statutory guidance that we are preparing in support of the duty. These amendments will require the guidance to be laid before Parliament in draft before it can be issued and provide for the guidance to be brought into force by regulations using the affirmative resolution procedure. Given the status of the guidance and its importance in supporting the public bodies that will be subject to the duty, these amendments will provide Parliament with a greater opportunity to scrutinise this document before it is issued.

Amendments 16, 18 and 20 relate to the definition of “relevant family members” for the purpose of the covenant duty. The covenant principles relate to disadvantages arising for “service people”, with special provision being made for such people. The term “service people” is defined in Section 343B of the Armed Forces Act 2006 to include “relevant family members” of service and former service personnel, but this does not include a description of precisely who is a relevant family member for the purposes of the covenant duties. As this group of people will need to be considered by those public bodies in scope of the new duty, we have accepted the committee’s recommendation to specify in regulations who is to be regarded as a relevant family member and that the affirmative resolution procedure is appropriate.

These amendments will therefore amend Section 343B of the Armed Forces Act 2006 to provide for “relevant family members” to be defined in regulations that will be subject to the affirmative resolution procedure. The definition set out in the regulations will apply to both the new “due regard” duty and the Armed Forces covenant report. However, for the purposes of the report, the definition will also include such persons connected with service members and ex-service members as the Secretary of State may decide, as is currently the case under Section 343B.

In addition to the recommendation of the Delegated Powers and Regulatory Reform Committee, the amendments will also require the Secretary of State to consult with the devolved Administrations and other stakeholders he considers appropriate before making the regulations.

There are further minor and technical amendments to Clause 8. Amendments 10 and 13 amend new Sections 343AE(4)(c) and 343AF(7)(c) to correct drafting omissions to ensure that the duty on the Secretary of State to consult a Northern Ireland department on regulations or guidance applies only where the Northern Ireland devolved context is affected. This mirrors the position for Wales and Scotland.

Amendment 14 to new Section 343AF, which is inserted by Amendment 19, removes a superfluous part of the definition of Northern Ireland devolved competence, also bringing it into line with the approach for Wales and Scotland. I hope your Lordships will support these amendments, which will provide Parliament a greater opportunity to scrutinise these key elements supporting the covenant duty before they become law.

Amendments 21 and 22 are minor and technical in nature and are being brought forward to improve the drafting of the Bill and ensure consistency with existing legislation. Amendment 21 will allow the regulations that replicate the effect of Section 10(5) of the Police Reform Act 2002 to also replicate the effect of Section 54(2D) of the Police Act 1996. The service police complaints commissioner and Her Majesty’s Chief Inspector of Constabulary have complementary statutory functions and are charged with the oversight of the service police forces. This amendment will require them to enter into arrangements with each other for the purposes of securing co-operation and providing assistance in the carrying out of their respective functions. Amendment 22 would provide for the records of the service police complaints commissioner to be “public records” for the purpose of the Public Records Act 1958. I beg to move.

[Lord Tunnicliffe (Lab)]

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

[Baroness Smith of Newnham (LD)]

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

[Baroness Goldie (Con)]

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

Amendment 8 agreed.

Moved by

[Baroness Goldie]

9: Clause 8, page 15, line 36, leave out “issuing guidance under subsection (1)” and insert “laying draft guidance under this section before Parliament”
Member’s explanatory statement
This amendment is supplementary to Baroness Goldie’s amendment at page 15, line 35.

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[Baroness Goldie (Con)]

I thank my noble friend Lord Lancaster for retabling his amendment. I understand his motivation for doing so. I thank the noble Lord, Lord Tunnicliffe, and the noble Baroness, Lady Smith, for their contributions. I will not rehearse the whole structure behind the VAPCs, which my noble friend very eloquently did. I will make two points in response to him. First, for several years, VAPC members have undertaken activities that go above and beyond the scope of the statute. They have undertaken these additional activities on a non-statutory basis instead, and there have been no substantive issues with them doing so.

My second point is to acknowledge—and I hope this reassures my noble friend—that there may be ways in which we can improve on this arrangement. The Government are committed to looking again at the role of the VAPCs. That is why the MoD and the Office for Veterans’ Affairs recently agreed with the chairs of the VAPCs a new set of non-statutory terms of reference to guide their activities. The terms of reference envisage that VAPC members will undertake many of the activities listed in his amendment, such as raising awareness of the strategy for our veterans and the proposed new duty to have due regard to the covenant. The terms of reference are set for an initial period of 12 months. I confirm to my noble friend that we intend to use this period and the evidence we gather during it to work with the VAPCs to review what they have done, how effective they have been in doing it, and whether and how their statutory role might need to be amended in the future.

Anticipating the point from the noble Baroness, Lady Smith, I hope my noble friend will understand why seeking to amend this Bill at the present time is premature. The Government have already set themselves on a course to review the role of the VAPCs, but we are doing this first via the introduction of new terms of reference, and we want to give the VAPCs a chance to perform under them before we take firm decisions about their longer-term future.

Legislative change may well need to follow and the evidence we gather over the coming months will help to inform us on this point. As it is, we are not sure that the legislative provision proposed in my noble friend’s amendment is necessarily the most suitable or effective way of achieving the desired outcome. For example, it would provide for only a specific and rather limited adjustment to the VAPCs’ statutory role, when instead we might want to consider more fundamental changes.

My noble friend will appreciate that I cannot speculate about the precise vehicle or timing for any future legislative change. However, I am very willing to commit to him that I and my officials will explore what changes we can make in this area and I hope that, with that reassurance, my noble friend will be content to withdraw his amendment.

Amendment 15 withdrawn.

Moved by

[Baroness Goldie]

16: Clause 8, page 18, leave out line 32 and insert—
“(b) subsection (4) is amended as follows— (i) in the definition of “relevant family members”, after “means” insert “such persons as may be prescribed, and for the purposes of section 343A also includes”;(ii) at the appropriate place insert—”Member’s explanatory statement
This amendment and Baroness Goldie’s amendment at page 18, line 37 would provide for “relevant family members” to be defined in regulations.

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Moved by

[Baroness Goldie]

18: Clause 8, page 18, line 37, at end insert—
“(c) after subsection (4) insert—“(4A) In subsection (4) “prescribed” means prescribed by regulations made by the Secretary of State under this subsection.(4B) Before making regulations under subsection (4A) the Secretary of State must consult—(a) the Welsh Ministers so far as the regulations contain provision that is within Welsh devolved competence,(b) the Scottish Ministers so far as the regulations contain provision that is within Scottish devolved competence,(c) the relevant Northern Ireland department so far as the regulations contain provision that is within Northern Ireland devolved competence, and(d) any other persons the Secretary of State considers appropriate.(4C) Subsections (8) to (10) of section 343AF apply for the purposes of subsection (4B) as they apply for the purposes of that section.””Member’s explanatory statement
This amendment and Baroness Goldie’s amendment at page 18, line 32 would provide for “relevant family members” to be defined in regulations. This amendment also imposes requirements with regard to consultation.

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Moved by

[Baroness Goldie]

21: Clause 11, page 23, line 6, at end insert—
“(2A) If regulations under subsection (1) include provision corresponding (with or without modifications) to section 10(5) of the Police Reform Act 2002 (general functions of Director General), the regulations may also provide for subsection (2D) of section 54 of the Police Act 1996 (functions of inspectors of constabulary) to apply (with or without modifications) in relation to the Service Police Complaints Commissioner as that subsection applies in relation to the Director General of the Independent Office for Police Conduct.”Member’s explanatory statement
This amendment would enable regulations to impose on the chief inspector of constabulary duties which would be reciprocal to duties imposed on the Service Police Complaints Commissioner by the same regulations.

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Moved by

[Baroness Goldie]

22: Schedule 4, page 52, line 23, at end insert—
“2A_ In Part 2 of the Table in paragraph 3 of Schedule 1 to the Public Records Act 1958 (definition of public records), at the appropriate place insert—“Service Police Complaints Commissioner.””Member’s explanatory statement
This amendment would provide for records of the Service Police Complaints Commissioner to be public records for the purposes of the Public Records Act 1958.

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The point made by my noble friend Lord Robertson about the defence representation unit in Amendment 27 is important. He made his points really well, so I will not repeat them, but the necessity to ensure that Armed Forces personnel and veterans are properly supported when they face legal action is a principle I am sure we would all support. My noble friend may not put that to a vote, but it is an important point of principle that the Government need to consider.

[Baroness Goldie (Con)]

My Lords, I thank the noble and learned Lord, Lord Thomas of Cwmgiedd, for his amendment. I know this is an issue in which he is keenly interested and one which he has pursued with vigour. I will speak first to Amendment 23 in his name and supported by the noble Lords, Lord Coaker, Lord Robertson of Port Ellen and Lord Thomas of Gresford.

We had a useful and, I think, constructive debate in Grand Committee on the defence serious crime unit and this amendment. The DSCU is an important part of Sir Richard Henriques’ recent review. Indeed, 20 of the 64 recommendations of that review relate to that unit. I am extremely pleased that we have been able to take swift action to make the necessary changes to primary legislation in order to deliver that unit, and I think everyone shares that view.

Let me address at the outset the specific issue of the number of Sir Richard’s 20 recommendations on the DSCU that the Government are accepting. I think noble Lords were left with the impression that only a small number had been accepted, because the government amendments in Grand Committee related only to three recommendations on the DSCU. It is certainly not the case that only a small number of recommendations have been accepted. Let me explain. With one exception, where we are taking a slightly different approach to civilians, the Government accept all Sir Richard’s recommendations on the DSCU. All the recommendations that we accept and that require primary legislation are dealt with in the Bill. The three recommendations I referred to in Grand Committee reflect those that require primary legislation to constitute the DSCU. These are the changes needed to deliver an operational unit. In particular, they give the provost marshal for serious crime the same powers and duty of investigative independence, on the same terms, as the existing provost marshals. The other recommendations that the Government accept do not require primary legislation.

This mirrors the usual position of a review of this nature, where some recommendations require primary legislation to be implemented and others simply do not. I have sought to explain this in clear terms today, but I have also made available a fact sheet to set out in detail the Ministry of Defence’s work on the DSCU. Indeed, a number of your Lordships helpfully referred to that. I have circulated that fact sheet to opposition defence spokespersons, but I have copies with me in the Chamber today if anyone wishes sight of one.

I also want to assure noble Lords that the Ministry of Defence is now taking forward the DSCU project, both the legislative and non-legislative elements, with considerable speed and energy. As well as the swift work on the primary legislation, work on the necessary changes to secondary legislation is well under way. In Grand Committee, noble Lords agreed a power to make consequential secondary legislation, which will facilitate this once the Bill is passed. A DSCU implementation team has been established, led by a senior civil servant. It is a multidisciplinary team of project management and service police specialists representing the three services. An individual has now been selected to be the provost marshal for serious crime designate. Their initial focus will be to lead the implementation of the DSCU to full delivery. I noticed the comment by the noble Lord, Lord Thomas of Gresford, that he thought this was putting the cart before the horse, but I disagree. This is a sensible, logical, structured way in which to proceed.

I now turn to the specific issues raised in this amendment. In general terms, I do not believe that adding these further Henriques DSCU recommendations to primary legislation is necessary. They will form part of the work that is already under way to establish the DSCU. I am happy to confirm that we are already working towards a DSCU by April 2022 and will look to implement a victim and witness care unit shortly after. In addition, the implementation team has already started work on the establishment of a strategic policing board, which is also to be in place by April 2022. The provost marshal for serious crime will produce an annual report to the Minister for Defence People and Veterans, which that Minister will provide to Parliament. None of these matters requires primary legislation.

Let me say a bit more about three specific issues: the independence of the DSCU, the role of civilians, and the investigative protocols. On independence, the amendment includes the language:

“The tri-service serious crime unit must carry out its investigations in a manner that is operationally independent of the military chain of command.”


However, I respectfully suggest to the noble and learned Lord, Lord Thomas of Cwmgiedd, that this is already reflected in the Bill. I remind your Lordships of the recommendations from Sir Richard regarding the implementation of a defence serious crime unit. He was specific. He said:

“The Provost Marshal (Serious Crime) should have a duty of operational independence in investigative matters owed to the Defence Council, on the same terms as that owed by the”


existing

“Provost Marshals under section 115A of the Armed Forces Act 2006.”

That is what we achieve in this Bill and what we are delivering under Clause 12(3).

As the noble and learned Lord indicated, the UK courts have already found that, under the existing structure, the service police are capable of being

“hierarchically, institutionally and practically independent”

of those that they are investigating. It is therefore right that the duty on the new provost marshal for serious crime is the same as the existing duty on the provost marshal of each of the service police forces. I urge noble Lords to look at Clause 12(3) if anyone is in any doubt about the impact of that clause.

The Ministry of Defence shares Sir Richard’s ambitions for an increased role for civilians in the DSCU. It is already possible under existing arrangements for civilians to work alongside the service police in delivering service police functions. There are examples of civilians taking on leadership roles in the service police, and of secondments from civilian police forces to the service police. As part of the work of the DSCU implementation team, we will look at options to appoint a civilian in a senior leadership role and at how experienced civilian police can work with the unit. I say specifically to the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lords, Lord Thomas of Gresford and Lord Coaker, that what we cannot do at this stage is have a civilian as deputy provost marshal, because that is a role for service persons and currently subject to Armed Forces systems of command and discipline. At present, simply making them a civilian might give them the title of deputy provost marshal but without the concomitant mechanisms of accountability and control. I am sure that is not what the amendment desires to achieve, but it would be its effect. The role of civilians therefore needs further consideration and work as part of the implementation exercise. However, I hope I have indicated that there is no antipathy within the MoD to the role of civilians in this important process.

I want to address the protocols regarding fatalities and ill-treatment cases referred to in the amendment. As we set out in the ministerial Statement, and as I confirmed in Grand Committee, the non-legislative protocols for dealing with fatalities and ill-treatment cases on overseas operations—between the service police, the Director of Service Prosecutions and the Judge Advocate-General—should rightly be considered by those independent bodies in the first instance. I draw noble Lords’ attention to Sir Richard’s own view on this, which is that “an agreed protocol” is “preferable to legislation”. That particularly avoids compromising the independence of the Director of Service Prosecutions. We support Sir Richard’s recommendation that the protocols should be non-legislative. Taking that approach will allow for more flexibility as the protocol text can be amended at speed in response to lessons learned during its application. Sir Richard also made the point that agreements along the lines that he proposed,

“doubtless with variations to achieve flexibility”,

could be achieved but only once the issue of coronial jurisdiction had been resolved. That was his recommendation 41, and we will engage with the Ministry of Justice on it.

We will be supporting the service police, the Director of Service Prosecutions and the Judge Advocate-General in this important work. The principles of timeliness, regular reviews and consultation are extremely significant. However, there are likely to be issues for these bodies and individuals to consider. In particular, they would need to be comfortable that the arrangements respected the proper relationships between the police, the prosecutors and the judiciary. Further work will be needed to ensure that we address Sir Richard’s concerns over investigations without falling foul of the constitutional principles of the independence of the investigation, the prosecution and the judiciary.

As I have set out, these are important but complicated matters, and the service police, the Director of Service Prosecutions and the Judge Advocate-General need time to properly consider them. While I am sure they will seek to undertake the necessary work to progress them as quickly as possible, it is vital that they get them right and it is important to respect their independence. I do not think it would be appropriate for Parliament to set a timeline of July 2022 for their implementation. I therefore urge the noble and learned Lord to withdraw his amendment.

I will speak to the other half of the group—Amendment 27—which has been tabled by the noble Lord, Lord Robertson of Port Ellen, and supported by the noble Lord, Lord Coaker, and the noble and learned Lord, Lord Thomas of Cwmgiedd. This amendment seeks an early decision—one month after Royal Assent of the Bill—on whether the MoD is going to accept or reject the recommendations in the Henriques review report for the establishment of a defence representation unit and, if the recommendations are accepted, requires the Minister to lay a report before Parliament, setting out a plan and timeline for establishing the unit by July 2022.

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[Baroness Smith of Newnham (LD)]

My Lords, I support the amendment in the name of the noble Lord, Lord Coaker, which I and the noble Baroness, Lady Bennett of Manor Castle, have signed.

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

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

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

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

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

[Baroness Goldie (Con)]

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

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

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

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[Lord Alton of Liverpool (CB)]

My Lords, we had a good debate earlier when my noble and gallant friend Lord Craig spoke to Amendment 4 tabled by the noble and learned Lord, Lord Mackay of Clashfern. There was a degree of unanimity around the House that this issue needed to be addressed. The Minister was good enough to say that, although she would not reply on Amendment 4 to the issue of Hong Kong ex-servicemen, when we reached this part of our proceedings on Amendment 26 she would be able to give us some reply. I rather hoped that might mean she wanted some space to try to digest some of the points that he and I tried to make earlier.

I particularly reinforce what the noble Baroness, Lady Smith of Newnham, said about the relationship between the MoD and the Home Office on this. If nothing else comes of this evening, will the Minister agree to facilitate a meeting involving perhaps those who have participated in this debate but also her noble friend Lady Williams of Trafford, at which we might try to make some progress on these two questions—one about citizenship and the other about the specific position of the Hong Kong ex-servicemen?

If the Minister has the figures, I wonder if she could share with the House the number of people we are talking about who fall into the category—whether the figures I gave earlier are correct or not. Sometimes it is what you do in small things that matters most, and we are talking about very small numbers of people. It was a point alluded to my noble friend Lord Brookeborough a few moments ago, that when you compare this very small group with the number of people who try to arrive in the United Kingdom—some illegally—it is how we behave towards them that will matter.

This brought me back briefly to debates in another place in 1983, when I spoke on the nationality Act about citizenship and the effects it would have on people in Hong Kong. Sadly, many of the things predicted during that debate have come to pass. The trajectory we all hoped that Hong Kong might be on post 1997 —“one country, two systems”, and an honouring of the difference between Hong Kong and mainland China —has clearly not happened. That has left people in a precarious position, and none more so than those who served the Crown. I reinforce the point I made earlier: these people’s lives are clearly now in danger, and we have a duty to do something about that. It is a point that my noble friend Lord Dannatt made as well.

That is all I wanted to say. I know I had the chance to speak earlier on. I hope the Minister will think about how she can, in a practical way, take these two relatively small questions forward and see if we can get some justice for those involved.

[Baroness Goldie (Con)]

My Lords, I thank the noble Lord, Lord Coaker, for tabling this amendment and the noble Lord, Lord Tunnicliffe, for his remarks in support of it. I am also grateful to those who have contributed to the debate, not least the noble and gallant Lord, Lord Craig of Radley, the noble Baroness, Lady Smith, the noble Viscount, Lord Brookeborough, and the noble Lords, Lord Dannatt and Lord Alton.

I think your Lordships will understand that I am at the Dispatch Box as MoD Minister. I cannot speak on behalf of the FCDO or the Home Office, but let me try and address some of the more technical issues to at least give context to what the amendment seeks to achieve. The first thing I want to say is that the Government highly value the service of all members of our Armed Forces, including: our Commonwealth nationals, our Gurkhas in Nepal, who have a long and distinguished history of service to the UK both here and overseas; and former British Hong Kong service personnel.

Before I address the detail of the proposed new clauses, I would like to say a few words about the process for setting immigration fees. Application fees for immigration and nationality applications have been charged for a number of years. They are charged under powers set out under Section 68 of the Immigration Act 2014. They play a vital role in our country’s ability to run a sustainable borders and immigration system, reducing the burden that falls on taxpayers.

Sitting beneath the Immigration Act are a fees order and fees regulations, all of which are scrutinised by both Houses before they come into effect; there is a democratic prism to all this. This system ensures checks and balances, and it seeks to maintain the coherence of the immigration fees framework as set out in legislation. If we were to remove these fees during the passage of this Bill, as the noble Lord, Lord Coaker, suggests in his amendment, it would undermine the existing legal framework for fees, without proper consideration for either the sustainability of the system or fairness to the UK taxpayer. It would also reduce clarity in the fees structure by creating an alternative mechanism for controlling fees which sits outside the immigration fees regime.

When non-UK service personnel, including Commonwealth citizens and Gurkhas from Nepal, enlist in the regular Armed Forces, they are granted exemption from immigration control status for the duration of their service. That is to allow them to come and go without restriction. They are free from any requirements to make visa applications or pay any fees while they serve, and that is unlike almost every other category of migrant coming to work in the UK. Those who have served at least four years or been medically discharged as a result of service can choose to settle in the UK after their service and pay the relevant fee.

As a number of your Lordships are aware, the time before discharge that such settlement applications can be submitted has been extended this year from 10 to 18 weeks. Those applying for themselves do not have to meet an income requirement, be sponsored by an employer, or meet any requirements regarding their skills, knowledge of the English language or knowledge of life in the UK, again putting them in a favourable position compared with others who seek to settle here. We recognise, however, that settlement fees may place a financial burden on non-UK serving personnel wishing to remain in the UK after their discharge, and we recognise the strength of feeling of parliamentarians, service charities and the public on this issue.

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[Lord Alton of Liverpool (CB)]

Can we press the Minister further on this point about the link between the MoD and the Home Office? She is of course right, but she has just said that it is a continuing process of consultation. The Home Office has been saying that for year after year, as referred to by my noble and gallant friend in his remarks earlier. When does the Minister think that that will conclude, and will she respond to the point made by the noble Baroness, Lady Smith, and me about the importance of facilitating a meeting between the Home Office, the MoD and noble Lords who are involved and interested in this issue?

[Baroness Goldie (Con)]

I would say to the noble Lord, Lord Alton, that I understand the strength of feelings so ably articulated by him, the noble Lord, Lord Coaker, the noble and gallant Lord, Lord Craig of Radley, the noble Lord, Lord Dannatt, the noble Baroness, Lady Smith, and the noble Viscount, Lord Brookeborough. I understand the strength of feeling expressed in the House in relation to individuals who have served this country. But, as I have explained, there is an existing legal framework in place for immigration fees which already enables proper consideration to be given by government and Parliament to the full range of issues in setting those fees.

The issues raised by this amendment are already subject to a consultation that is entering its final stages. I can tell the noble Lord, Lord Alton, that I have no magic wand that I can wave, and that this is another department’s responsibility. I can also confirm that the specific issues around Hong Kong are also under consideration.

[Viscount Brookeborough (CB)]

The Minister talks about consultation. I ask her to let us know who has been consulted and how many of the cohort group have been. Clearly, it will be very wide of the mark if none of them has been spoken to. So how many people, who, when, and has it involved the cohort?

[Baroness Goldie (Con)]

All I can do is undertake to write to the noble Viscount, because I do not have the specific detail in front of me. The consultation process ran and it was a joint process, but I will find out the specific information that he requested and write to him.

The noble Lord, Lord Coaker, helpfully indicated that this is a probing amendment, and I am very grateful to him for proposing not to press this to a Division. As I said earlier, I sense the strength of feeling, and Hansard will be testament to that strength of feeling. I give the noble Lord, Lord Alton, the assurance that through the conduit of the MoD I will indicate the desire of your Lordships for some clarity in seeing how these matters are to unfold. Therefore, while I cannot give the answers that noble Lords are no doubt impatient to receive—I sympathise with their impatience but think they will understand that I am in an impossible position in terms of providing the answers—I certainly undertake to use my offices as a Minister in MoD to see whether I can do anything to facilitate the provision of information. In these circumstances, I hope the noble Lord will withdraw his amendment.

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[Baroness Smith of Newnham (LD)]

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

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

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

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

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

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

[Baroness Goldie (Con)]

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

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

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

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

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

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

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

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

The Armed Forces foundation college—

[Lord Browne of Ladyton (Lab)]

I am very much obliged to the noble Baroness for giving way; she is very generous. However, at this point I think it is appropriate to ask her specifically if it is true that there were 60 complaints between 2014 and 2020 from parents or trainees about bullying behaviour at AFC Harrogate. Is that true?

[Baroness Goldie (Con)]

I do not have that information before me. I will certainly undertake to investigate, and I will write to the noble Lord with whatever I find out.

[Lord Browne of Ladyton (Lab)]

With respect, if it is true, will the noble Baroness also express in that letter whether she is concerned that that does not appear to have been reflected in the inspections of AFC Harrogate? If it had been, I am sure the noble Baroness would have shared that when we discussed this in Committee.

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[Baroness Goldie (Con)]

As I said to the noble Lord, all I can offer to do is to look at Hansard and the detail of what he said, and to check that out and see what I can ascertain. I will undertake to do that and write to him, and I will offer any comment that seems appropriate depending on what I find out.

What I was going on to say, particularly in response to the point raised by the noble Baroness, Lady Smith, is that—as the noble Lord, Lord Browne, has indicated—the foundation college, alongside all phase 1 and phase 2 training organisations, is subject to Ofsted inspection on a routine basis. Ofsted is an independent inspectorate. I and the Government have no control over what it says and does; it is for Ofsted to enter establishments, ask its questions, make its inspections and come to its conclusions.

What I can say to the noble Baroness is that the college was independently inspected by Ofsted in May 2021 as part of the 2020-21 inspection cycle into welfare and duty of care in Armed Forces initial training. Harrogate was awarded an overall grade of outstanding by Ofsted at the inspection, which followed the outstanding grade it received in October 2017. That grade was awarded due to the excellent standard of provision of duty of care and welfare encountered by Ofsted at the college.

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Knowing the Minister in the way that I do, I know she will go back and ask this. But the system needs to respond to us, to this Chamber, to this debate and to all the various points that have been made; that is what democracy is about. It is about the Chamber that represents the people speaking up for the people to the system and demanding that it change and respond to them. That is what we expect from this debate. I thank my noble friend Lord Browne again for putting the amendment and for his continued efforts with respect to this really important issue.

[Baroness Goldie (Con)]

My Lords, the noble Lord, Lord Coaker, is right: we have kept until the end of the day—unfortunately when few people are around—one of the best debates we have had during this stage of the Bill. I thank the noble Lords, Lord Browne and Lord Clement-Jones, and the noble and gallant Lord, Lord Craig, for tabling this amendment. I know that their interest is informed and determined, and I can tell them that it is welcome. Having debated this issue with them now on several occasions, I understand the depth of their concern in this important area. I am grateful to them for the way they have engaged with me and officials and I look forward to further engagement, for we will surely debate these issues in this House for many years to come. I say to the noble Lord, Lord Coaker, that any Government would expect to be accountable to Parliament in respect of matters of such significance.

As with so many issues relating to the rapid march of new technology, this is both complex and pressing. The Government continue to welcome the challenge and scrutiny being brought to this question, and, as I noted on previous engagements, I do not dispute the noble Lords’ analysis of the importance of proper legal consideration of novel technologies. Indeed, I attempted to access the podcast to which the noble Lord, Lord Browne, referred. I do not know whether the Chamber will be delighted or disappointed to learn that, such is the security of my MoD computer, I could not get anywhere near it, so I have still to enjoy the benefit of listening to that podcast, which I intend to do.

As I said, I know that the amendment is extremely well intended and timely, but I hope to persuade your Lordships that the proposed review is not the right means of addressing these issues. However, I assure your Lordships that the department is alert to these questions and has been working extensively on them over the course of the last 18 months. Indeed, the noble Lords, Lord Browne and Lord Clement-Jones, have been engaging with officials in the department. They might have a better understanding than most of what is taking place.

Setting a requirement for a review in law would actually risk slowing down the work needed to develop the policy, frameworks and processes needed to operate AI-enabled systems responsibly, and to address the legal risks that service personnel might otherwise face. That is an issue of profound importance and one in which the noble and gallant Lord, Lord Craig of Radley, is rightly interested.

Noble Lords will understand that I cannot set out details of the department’s position until these have been finalised, but I can assure your Lordships that work to set a clear direction of travel for defence AI, underpinned by proper policy and governance frameworks, has reached an advanced stage. The noble Lord, Lord Browne, will I am sure have a sense of where that is headed. Key to it is the defence AI strategy, which we hope to publish in early course, along with details of the approaches we will use when adopting and using AI.

These commitments, which are included in the National AI Strategy, reflect the Government’s broader commitment that the public sector should set an example through how it governs its own use of the technology. Taken together, we intend that these various publications will give a much clearer picture than is currently available, because we recognise that these are vital issues that attract a great deal of interest and we need to be as transparent and engaged as possible. I wish specifically to reassure the noble Lord, Lord Coaker, about that.

I know from their contributions, to which I listened, that noble Lords will understand that this AI strategy cannot be the last word on the subject, but I hope that, when we do publish details, your Lordships will be substantially reassured that we are on the right track, and that substantial effort and engagement will follow. There is no end to the march of technology—that is one of the reasons why we have questioned the utility of a snapshot review process—nor will there be an end to our challenge of ensuring that we do the right thing with that technology, especially where grave matters of life and death and national security are concerned.

As we undertake this work, one of our top priorities must be to develop the terminology and vocabulary necessary to ensure we illuminate, clarify and improve understanding and awareness, and to find the right way to debate these issues. This is by no means a comment on any of the discussions that we have engaged on in this House; it is more a general observation on the difficulty of debating concepts such as lethal autonomous weapon systems when there is no definition and different views are not always clearly differentiated.

Are we concerned that AI could usher in a new era of weapons which, whether controlled by a human or not, could result in devastation and atrocities? Or are we concerned at the ethical implications of a machine, rather than a human, taking decisions which result in the death of even a single human? The answer is both, but the discussion is not best served when it jumps between such disparate topics.

The MoD has to keep pace with the threats that confront this country and consider how to deal with them. When I spoke in Grand Committee, I commented, in response to the noble Baroness, Lady Smith, that context-appropriate human involvement could mean some form of real-time human supervision, which might be called “human in the loop”, or control exercised through the setting of a system’s operational parameters. The noble Lord, Lord Browne, correctly observed that some might call the latter a fully autonomous weapon. But I wonder whether they would use that term, or perhaps more importantly be concerned, if the use case they had in mind was a system mounted on a Royal Navy vessel to defend against hypersonic threats. Such a system might well be lethal—that is, capable of taking human life—but in many ways it would not be considered fully autonomous, even if it detected the threat and opened fire faster than a human could react.

We must be careful to avoid generalisations in this debate. We in the Ministry of Defence have a responsibility to ensure that our position is properly communicated. That is a responsibility we acknowledge, and I say again to the noble Lord, Lord Coaker, that it is a responsibility of which we are cognisant and about which we will be vigilant.

The crucial point, which is also the reason why this amendment is unnecessary, is that all new military capabilities are subject to a rigorous review process for compliance with international humanitarian law. Any determination as to the exercising of context-appropriate human involvement will similarly be done carefully on a specific case-by-case basis. We also adjust our operating procedures to ensure that we stay within the boundaries of the law that applies at the time.

International and domestic frameworks provide the same level of protection around the use of novel technologies as for conventional systems because their general principle is to focus on the action, rather than the tool. These frameworks therefore offer appropriate levels of protection for our personnel. We are committed to ensuring that our Armed Forces personnel have the best possible care and protection, including protection against spurious legal challenges. I think I said in Committee that, earlier this year, we acted to bolster this protection in historical cases through the overseas operations Act.

This is a fascinating and complex area. I hope my remarks provide reassurance to your Lordships that the Ministry of Defence takes these matters very seriously, is already doing all that needs to be done and is planning to be proactive in communicating its approach appropriately to Parliament and the public. On this basis, I suggest that this amendment is not needed. The noble Lord, Lord Browne, has been kind enough to indicate that he will not press it, but I hope that he and other Members of this House will remain engaged with us in the MoD, as we will remain engaged with our international partners and allies, and our own public and civil society, so that we can make rapid progress on these important and challenging questions.

Armed Forces Bill

Baroness Goldie Excerpts

Wednesday 17th November 2021 Lords Chamber

Moved by

[Baroness Goldie]

That the amendments for the Report stage be marshalled and considered in the following order:

Clauses 1 and 2, Schedule 1, Clauses 3 to 9, Schedule 2, Clause 10, Schedule 3, Clause 11, Schedule 4, Clause 12, Schedule 5, Clauses 13 to 16, Schedule 6, Clauses 17 to 27, Title.

Motion agreed.

Armed Forces Bill

Baroness Goldie Excerpts

Committee stage
Monday 8th November 2021 Grand Committee

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

My Lords, I thank the noble Lord, Lord Coaker, for tabling Amendment 51, and the noble Lord, Lord Tunnicliffe, for so eloquently speaking to it. As has been explained, this amendment seeks to create through primary legislation a representative body for the Armed Forces that is similar in many respects to the Police Federation. It proposes that details of how the federation would operate are set out in regulations. I recognise the commitment of both noble Lords to the welfare of our Armed Forces, as other contributors have rightly acknowledged.

This has been an interesting debate. It has thrown up in broad terms the particular environment and context in which we ask our Armed Forces to operate, and it has disclosed some specific issues. Let me try to address some of the points raised. Clearly, the noble and gallant Lords, Lord Boyce and Lord Craig of Radley, and the noble Baroness, Lady Smith, have reservations. I think they were well articulated and suggest that they should be heeded.

To go to the context, the environment in which we ask our Armed Forces to operate, the Armed Forces have a unique role and can be called upon to carry out tasks that are clearly beyond anything that most other people would be asked to do in the course of their duties. What works for a civilian workforce such as the police will not necessarily work for service personnel. That is why the interests of Armed Forces personnel are already represented through a range of mechanisms, not least the chain of command. I will spend a short time outlining some of those provisions. We are currently, in fact, considering what more we can do in this space without compromising operational effectiveness.

The noble Baroness, Lady Smith, raised the issue of pay in general terms and made a particularly interesting point about whether the Armed Forces understand the structures. The Armed Forces’ Pay Review Body and the Senior Salaries Review Body provide independent annual recommendations on pay for the Armed Forces to the Prime Minister. The X factor addition to basic military pay, which is currently at 14.5%, recognises the special conditions of military life, including the limits on the ability of service personnel to negotiate on this issue. Processes are in place for personnel to make complaints about their pay or allowances. I would hope that, with the new ambience that now pervades the Armed Forces, people would be encouraged to articulate those concerns and ask questions of the very type the noble Baroness mentioned.

With regard to complaints more widely, the Service Complaints Ombudsman provides independent and impartial scrutiny of the handling of service complaints made by members of the UK Armed Forces regarding most aspects of their service life, and service personnel are able independently to approach the ombudsman or ombudswoman about a complaint which they do not want to raise directly with their chain of command. Support is provided to those who are making complaints or allegations and to those who are the subjects of such actions. In addition to this practical support, there is a range of internal and external welfare support for personnel to draw on if they need it as they go through these processes.

Improvements to the service complaints process are being progressed as a matter of policy, as the vast majority of these do not require primary legislation. For many other issues, the Soldiers, Sailors, Airmen and Families Association—SSAFA—the Royal Naval Association, the Royal Air Force Association, the Veterans Support Association and a host of other regimental associations and groups around the country have regular access both to the chain of command and to Ministers to represent their members’ interests.

Service personnel have their own voice on matters which concern them through the Armed Forces annual continuous attitude survey, which asks our people about all aspects of their service life. The results, which are published, are used to inform the development of policy and to measure the impact of decisions affecting personnel, including major programmes and the Armed Forces covenant.

Service personnel can also play an active role in the development of the policies which affect them. There are currently more than 50 diversity networks operating within defence at various levels. Most of these are run by volunteer members, with senior officer advocates and champions, and they can be consulted on matters which are likely to impact our people.

Noble Lords will understand that the well-being of our personnel directly contributes to the operational effectiveness of the Armed Forces. It is therefore important to the chain of command and to defence to both sustain and support the well-being of service personnel and their families and, where necessary, provide welfare support to resolve issues that might otherwise undermine well-being and impact on operational effectiveness.

That is why, during basic training, all service personnel receive details on how to identify welfare issues and how to get help, with refresher training provided during subsequent initial trade training. All regular and reserve officers also receive training during their respective commissioning course which teaches how their service provides welfare support and sets out their welfare roles and responsibilities as line managers. Once again, refresher training is provided throughout and welfare specialists are also on hand to provide advice to the chain of command and provide support to their personnel.

We recognise that some personnel and families may feel uncomfortable exposing welfare issues to the chain of command and, in some cases, issues may even arise as a direct result of conflict with the chain of command. My noble friend Lord Lancaster spoke in broad terms about that and the alternative channels available to complainants.

I therefore submit that, in these circumstances, service personnel have alternative mechanisms for raising and addressing welfare issues, giving them a voice independent of the chain of command. These include unit welfare staff, padres and confidential helplines, in addition to the service families federations and service complaints process that I referred to earlier. The noble Lord, Lord Tunnicliffe, referred to Australia, but Australia disbanded its armed forces federation in 2006.

The noble Lord also raised an issue about the recent Budget, in response to which I would say that as the department prioritises providing a wider range of supportive bodies and invests in training for service personnel throughout their service career, it would be misleading to quantify this in terms of budget lines as such. The department feels strongly that the interests of service personnel need to be protected and we take a varied approach by providing many strands to offer that protection. We cannot put a price on giving people a voice.

I hope that this explains clearly the rationale for the Government’s approach to ensuring that the interests of service personnel are protected and the provisions that exist. I trust that, following these assurances, the noble Lord will agree to withdraw his amendment.

[Lord Tunnicliffe (Lab)]

My Lords, one of the essential skills for survival in politics is being able to count. I recognise a 5-0 defeat when I hear one; it can also be pretty uncomfortable when the closest you get to support comes from the Government. But I ask noble Lords to pause and consider that the speech that the Minister just made was probably unthinkable 30 years ago. She at least took the generality that representation, through one mechanism or another, is necessary. We also have to take the generality that, much as we all are proud of the Armed Forces, we know that in some areas things are not as perfect as we would want.

The concept of representation will have its day. Clearly, that is not today. But on the ideas behind it, I am pleased that the Government, I think, conceptually see that it is necessary to make sure that there are appropriate mechanisms for representation. Over time—this will come up every five years—we will test the ground, because we as a party believe in representation.

There is an interesting concept about civilians in uniform. They are not civilians in uniform; clearly, they are different from civilians in that they have to put their lives on the line, and I accept that. However, I think that they are citizens in uniform and there need to be processes and a mechanism for their views to be made known. We talk about supporting individuals going to the ombudsman. That is a good thing. I think that there is a recognition that that might have to be more formalised and more powerful. We will see. I accept that we are apart on this issue. Nevertheless, we are not as apart as one might think. The idea of agency by individuals is one that will not go away, but it is certainly not an idea that should be forced on an unwilling institution.

I opened by saying that I wanted to hear what the Government had to say. I am pleased with the direction of their answer. I also said that we were interested in what noble and gallant Lords might say. I note what they said. Therefore, taking account of all those issues, I beg leave to withdraw this amendment and will not be bringing it back on Report.

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[Lord Houghton of Richmond (CB)]

This amendment, which I do not particularly support or otherwise, would be an awful lot better placed if better evidence were available. There does not appear to be the relevant data. Personally, I am convinced that if that data were made available, it would re-establish in people’s minds and in society at large that the Armed Forces are one of the nation’s most successful organisations for social improvement among the people who join.

I fear that amendments such as this convey the impression that people enter the Armed Forces and then leave, at some later stage, damaged by the experience. That is far from the reality of the situation. Yes, some unfortunate people will struggle to find employment—some people struggle with second careers—but, by and large, people leave the Armed Forces both socially and professionally improved and go on to have highly successful second careers. So the publication of the evidence base would be hugely helpful in determining whether this sort of amendment was, in truth, required.

[Baroness Goldie (Con)]

My Lords, this may have been a short debate, but it was interesting. Once again, I have no doubt about the commitment of the noble Lords, Lord Coaker and Lord Tunnicliffe, in taking an interest in these matters. Amendments 52 and 56 engage with the subject of, first, the number of veterans claiming universal credit, and secondly, Armed Forces champions.

I will deal with Amendment 52 first. The Government are delighted that the universal credit system has now been enhanced to allow the Department for Work and Pensions to collect information on how many universal credit claimants are veterans. The noble and gallant Lord, Lord Houghton, put his finger on the point: the all-important issue here is the data, which is not yet complete. It is still early days. The DWP is still building up its data base and working out what the data is telling them and how to make best use of it, including producing reports and making information public. This may well include making information available through the covenant annual report, as well as more routine data releases.

I understand that, as soon as decisions have been made, the DWP will write to the noble Lord, Lord Coaker, setting out its plans. I expect it to be able to do this early in the new year. Further, the MoD will keep a close eye on this area as well. We are also interested in the data being collected, so I, too, look forward to the DWP’s response on this matter. With that assurance, I hope that the noble Lord will feel able to withdraw his amendment.

I will now address Amendment 56, again in the name of the noble Lord, Lord Coaker, which seeks to put into the Bill a specific number of Armed Forces champions who would be in place at all times. The number of Armed Forces champions, their specific roles and how and where they are deployed are detailed day-to-day operational matters for the DWP.

The DWP’s long-standing, undoubted and profound commitment to and support for the Armed Forces covenant is clear. Like the rest of this Government, my colleagues there do everything that they can to provide members of the Armed Forces community with the help and support that they deserve. I thought that the noble and gallant Lord, Lord Houghton, made an important point about the impressions that we wish to create and what the perceptions might be. Armed Forces champions are key in supporting and enabling the DWP to provide that help and support, but setting out a specific number in the Bill will limit the DWP’s flexibility to adjust the support to meet levels of need and will do nothing to enhance the current support provided by the DWP to veterans and others.

The DWP works very closely with the MoD and the Office for Veterans’ Affairs to help ensure that those using its services get the help and support that they need. Earlier this year it introduced a new model. Once again, it is important to put all this into shape so that there is context. It introduced the new model to transform the support that the DWP provides to members of the Armed Forces. This change of approach by the DWP was not subjective; it reflected feedback that the department had received, including from formal research and from those representing members of the Armed Forces community.

The new model was designed to ensure that veterans and others are served in a more intelligent and effective way. It enables the department to better match available resources with the demand for its services. The new model has built on the successful network of Armed Forces champions, which had been in place within the DWP for a number of years.

As part of the new model, the department has introduced for the first time a dedicated Armed Forces role at middle management level. These roles have responsibility for building capability and sharing best practice on Armed Forces issues across the DWP network, as well as building networks with the tri-services. It is important to understand the relevance and significance of that conjunction of activity.

There is a lead role in each of the 11 Jobcentre Plus groups and, as part of its work, it oversees 50 Armed Forces champions stationed across the Jobcentre Plus network. I know that the noble Lord, Lord Tunnicliffe, was critical of that level of champions, but the work of the champions cannot be viewed in isolation, for the reasons that I have just described.

The champions have specific responsibility for supporting claimants who are members of the Armed Forces community. Under the new model of support, the champions also have a front-line role and will personally handle some claims for the first time, supporting veterans into work and helping to resolve some of the more complex cases where necessary. I can tell the noble Lord, Lord Tunnicliffe—I think the noble Baroness, Lady Smith, also raised this point—that there is at least one Armed Forces champion in each of the 37 Jobcentre Plus districts.

The new model has been welcomed by the department’s Armed Forces stakeholders, who have been more interested, to be honest, in the structures and quality of services than in actual numbers. The DWP has listened to what stakeholders and researchers have said. Putting in place the new lead roles will help to improve the co-ordination of support activity and facilitate the sharing of best practice between the champions, and more widely across the department. The new roles also provide the opportunity for more pro-active work with the three armed services on resettlement and recruitment. Again, the noble and gallant Lord, Lord Houghton, took an interest in this issue.

In the early stages of introducing the new model, the DWP talked to a number of stakeholders, including Armed Forces charities and other groups, about the planned structures and roles. It explained how these would work in practice for stakeholders, as well as for individual claimants and their families. Now, almost six months in, the change seems to have settled in well and continues to be well received.

The DWP’s support is not limited to those with a formal Armed Forces role. For example, the new model enables the dedicated Armed Forces roles to complement the wider investment the department had already made during the pandemic in the recruitment of an additional 13,500 work coaches, bringing the total to 27,000. The Committee may be interested to know that every work coach receives specific training to support members of the Armed Forces community, and that an important part of the work of the new champions and lead roles is to build capability on Armed Forces issues across the whole department. This is not just across the Jobcentre Plus network but more widely, for example in DWP service centres.

As your Lordships will understand, there are many DWP staff, some based in individual jobcentre offices, who will be the local expert on Armed Forces issues and will work with those in the dedicated roles also to the support the Armed Forces. Many of these staff will have experienced service life themselves, either directly or through friends and family. They will use this experience in their work.

As within other parts of its business, the DWP will monitor and evaluate the new model, and will use the information gathered from this work to shape the support provided. These new arrangements come on top of other support that is already in place. For example, veterans are given early entry to the work and health programme, and if we can use service medical board evidence, a severely disabled veteran does not have to undergo additional examinations for employment and support allowance and universal credit purposes.

If the intention of this amendment is to make sure that the DWP always provides an Armed Forces champions service, it is unnecessary. The the DWP, through its words and actions, has consistently demonstrated its commitment to support veterans and members of the Armed Forces community. I accept that this is unintentional, but the amendment would constrain what are rightly day-to-day operational decisions for DWP managers. For example, holding open a post for a short while during a recruitment exercise would become unlawful. I know that is not the noble Lord’s intention, but we should let the expert delivery managers in the DWP manage their resources as they see fit.

With that reassurance of the scale of support within the DWP for Armed Forces personnel and veterans, I hope nthe noble Lord will be prepared to withdraw his amendment.

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[Baroness Smith of Newnham (LD)]

My Lords, I support these amendments, to which I have added my name. As the noble Lord, Lord Coaker, pointed out, they very much draw on the House of Commons Defence Select Committee’s report. In a sense, that was a cross-party report. The signatories in this place come from the Labour and Liberal Democrat Benches, although of course Sarah Atherton, the MP for Wrexham, who was the force behind the report, is a Conservative. We potentially have cross-party and cross-Chamber support for a range of issues brought forward in these amendments.

If these amendments are not necessary, we would be delighted to hear the Minister say, as the noble Lord, Lord Coaker, invited her to do, that whatever the Secretary of State has been doing today in bringing the service chiefs together will somehow deal with all the issues. That would be fantastic, but the evidence seems rather concerning, to put it at its mildest. The noble Lord, Lord Coaker, talked about the number of female service personnel and veterans who had come forward. The report also talks about delays in the complaints procedure. It says that the performance target for the Armed Forces is apparently that

“90% of service complaints should be resolved within 24 weeks. This target has not been met by any of the services in recent years, and the pandemic has increased delays in the system.”

Maybe the pandemic has made it even worse, but in 2020 only 24% of the complaints brought in the Royal Navy were dealt with within 24 weeks, although it had a much better record in previous years. In 2019, before the pandemic, the Army’s statistics were only 32%. Those figures seem entirely inappropriate.

Could the Minister tell the Committee what is being done to try to resolve the complaints system? It does not seem to be working at the moment. What is even more shocking, in addition to the delays, is that the people who have brought complaints have been extremely dissatisfied with the outcomes and the way they were kept informed about progress. What is going on? If the Minister and her team are unable to give the Committee good answers, these amendments seem the very minimum of the recommendations that came forward from HCDC that we would want to see in the Bill to ensure that the service complaints system is improved.

Noble and gallant Lords raised concerns about the chain of command under the Armed Forces federation proposals in an earlier amendment. I understand that. I do not think that anything in these amendments would undermine the chain of command, but there are suggestions in the House of Commons Defence Select Committee’s report and in Amendment 66B that say essentially that if service personnel bring cases against somebody in the chain of command, that has to be looked into. It is hugely important to acknowledge that the argument about the chain of command cannot be used in any way to negate the complaints that have been brought by service personnel, particularly women. I hope the Minister will take these amendments in the spirit in which they are brought, which is in no way to criticise the MoD specifically but to say that these issues need to be explored and that the service complaints procedures need to be speeded up if that is possible, which we hope it is.

I will say a brief word about Amendment 55, in case the noble and gallant Lord, Lord Houghton of Richmond, feels the need to say that we should not be talking down veterans or the experience. I do not believe that the intention of the previous set of amendments on universal credit was to say that there is particular problem and somehow veterans are coming out as being poorly treated; rather, it was to understand the situation for veterans. Again, the House of Commons Defence Committee report seems to suggest that there are some problems for women transitioning out of the Armed Forces that may be a little bit different from those experienced by the men. If we can understand the experience of veterans and have a report on that, we can try to improve the situation for all veterans.

These amendments are intended to be positive and constructive, and I hope the Minister takes them in that light.

[Baroness Goldie (Con)]

One would think that one would get into a routine of “Off with the mask, slug of the water, stand at the Dispatch Box”, but it still comes as a ritual.

Amendments 53 to 55 and 66B in the name of the noble Lord, Lord Coaker, and promoted so ably by the noble Lord, Lord Tunnicliffe, cover four strands: promoting flexible service, making binding the recommendations of the Service Complaints Ombudsman, monitoring the experience of veterans with protected characteristics, and considering whether to establish an independent defence authority. These are important amendments, and I reassure the noble Baroness, Lady Smith, that the Government understand that Members are trying to make constructive contributions.

The amendments concern a broad range of topics but, as has been identified, each is based on recommendations of the House of Commons Defence Select Committee report, Protecting Those Who Protect Us: Women in the Armed Forces from Recruitment to Civilian Life. The noble Lord, Lord Coaker, was interested in what happened at the convened meeting of the Army Board this morning. I think he will understand that I am constrained in what I can say, because these proceedings are confidential. I hope he realises that the Secretary of State, his Ministers and the Army do want to be sure that they are proactive in addressing issues which, as noble Lords have indicated, can be upsetting when they surface in the media and can cause concern. Without being able to impart any specific details, I reassure your Lordships that this morning’s meeting was very constructive, with what I thought were some excellent suggestions coming forward.

I believe that the motive behind the amendments is driven by a subject which I am deeply passionate about and wholeheartedly supportive of: women in the Armed Forces and, indeed, women in defence. To that end, I want to say a few words about that Select Committee inquiry and to thank the committee for its thorough work and report. That work has been enhanced by the testimony of current and former servicewomen, whose experiences have greatly assisted the inquiry. Their courage and fortitude were not just admirable but inspiring, and I extend my thanks to all those women who came forward to such positive effect. I acknowledge that, on too many occasions in the past, Defence has failed to provide women with adequate support. It will not surprise your Lordships to hear me say that.

We have examined the Defence Committee’s report in minute detail. We want to use it to build on our improvements and to ensure that our response is substantial and informed. We recognise that the lived experience for many women is not yet good enough, and this has to change.

The noble Lord, Lord Coaker, rightly identified the report as pivotal. I assure the Committee that the Secretary of State is absolutely committed to delivering against its findings. Indeed, he intends to go further. The Secretary of State has personally discussed the initial draft of our response to the report with members of the servicewomen’s networks, and this has led to additional work.

I know that your Lordships are keen to see a response to the Defence Committee’s report and I acknowledge that it is taking a little longer than expected, but that is for good reason. The Secretary of State has kept the inquiry chairwoman, Sarah Atherton, fully informed. She is in the picture. I think that we all agree that we would much rather produce something meaningful and substantial that provides hope and concrete direction for the way forward than just cobble together something to produce it within a time limit.

Defence Ministers and service chiefs are adamant that the important issues in the report are addressed comprehensively and that no opportunity is missed to bring about meaningful and enduring change. We are all taking an active role in ensuring that our response to the report is comprehensive and well informed to deliver positive outcomes. We are in the process of finalising that and anticipate submitting our response “in due course”, as it says here. I say to your Lordships to read that as “sooner rather later”.

I wish to be clear that many changes have already been introduced to improve the experience for women in the Armed Forces and military service remains a fantastic career opportunity for men and women alike. It is important to remind your Lordships that nearly 90% of the women giving evidence to the committee would recommend a career in the Armed Forces to female relatives and friends. We should not underestimate the importance of that. Yes, there are matters to be addressed. Yes, there are improvements to be made. Yes, there were areas overdue for investigation, for being addressed and for being rectified. But that sort of testament shows that many women have confidence in a career in the Armed Forces. We are delighted about that and proud of it. We owe it to them and everyone else in the Armed Forces to make sure that the response to this report has clout and impact.

Before speaking to Amendment 53, I first remind this Committee that the Armed Forces launched flexible service on 1 April 2019. The policy allows all regular personnel to apply to serve part-time and/or to restrict the amount of time that they are away from the home base, for a temporary period, subject to defence need. Flexible service is part of a suite of flexible working opportunities that we offer our people, which include remote working, variable start and finish times and compressed working. Between its introduction in April 2019 and September 2021, more than 355 service personnel and their families have benefited from flexible service. This level of uptake is in line both with the MoD’s forecast and with the experience of other nations’ Armed Forces that have introduced similar measures. Defence is ensuring that as many service personnel as possible can benefit from these measures by keeping flexible service under constant review.

We have an ongoing communications campaign aimed at encouraging uptake and improving awareness of flexible service and the wider flexible working opportunities that it offers its people. For example, this autumn, Defence is releasing a series of podcasts that explore service personnel’s experience of flexible working. On completion, the campaign’s impacts will be evaluated to inform communications for 2022.

Our previous communications have led to a high awareness of flexible service. The Armed Forces continuous attitude survey for 2021 shows that 82% of service personnel have heard of the policy. Notable campaigns have included video case studies of service personnel on flexible service in summer 2020, which attracted over 270,000 impressions on social media and nearly 10,000 engagements, and promoting Defence’s full flexible working offer to the Armed Forces through a digital booklet Flexible Working and You: A Guide for Service Personnel, which was published in January 2021. The booklet was viewed 17,000 times on the GOV.UK website and 12,850 copies were distributed to Armed Forces information centres and military units during June and July this year.

Ownership and development of flexible service policy is overseen by the Minister for Defence People and Veterans and, as such, he, too, is committed to ensuring that all service personnel can benefit from the policy. Defence already has several initiatives in place to measure and report on its awareness and uptake. These include annual reporting of flexible service’s developments, uptake and usage in the Armed Forces continuous attitude survey’s background quality reports.

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[Lord Lancaster of Kimbolton (Con)]

I am grateful to my noble friend for giving way. I simply want to ask a technical question, which she will not be able to answer right now. I accept that, but perhaps she would be so kind as to write to me. Having thought about this as she spoke, can I take her back to Amendment 53 and the wonderful flexible service scheme? We are going to face the challenge between dialling down the regular service of an individual, male or female, to perhaps two or three days a week and what they are going to be paid. Given that when you are on operations, you sometimes work seven days a week but at other times, effectively, you work Monday to Friday—five days a week—are they to be paid, for example, 60% of their salary if they are dialling down to three days’ service? I am bearing in mind that a part of that is their 12% X factor, which they get because of the inconvenience of service life. Would they continue to get that 12% X factor when they dial down their service?

I will compare that to the other end of the spectrum and the Reserve service. Part of the Reserve Forces 2030 review, which I chaired, sought to have a spectrum of service so that a reservist can increase their service, potentially, to three days a week—the same level that the regular has dialled down to. Bearing in mind that a reservist gets paid only a reduced X factor of 5%, and that their individual pay is based on one-365th of their regular counterparts’, unless we manage to mirror those two schemes so that they meet in the middle, individuals will potentially be doing exactly the same service per week but will be paid quite different amounts. That is a technical challenge, but we need to think about it. I simply ask whether, perhaps in slow time, my noble friend could write to me about how we are going to address that issue.

[Baroness Goldie (Con)]

I am sure that your Lordships are, as ever, immensely impressed by the noble Lord’s command of this matter. I think he is the only person on the Committee who really understands it and I am very grateful to him. I will look in Hansard to consider all his remarks—and, yes, I do undertake to write to him, because there are serious points in there and I do not have the information before me.

Before I conclude my remarks on this group of amendments, I was saying that the response to the Defence Committee’s report will be significant and I think your Lordships will be reassured by it. I will certainly be pleased to update your Lordships once the Government’s response to the report is published and I might even, I suggest, do a Peers’ briefing on that topic when it is forthcoming.

[Lord Coaker (Lab)]

I thank the Minister for her response which, as usual, sought to engage with the questions. That is always very helpful to the Committee. In particular, we all look forward to what she mentioned in her last point: she said to the Committee words to the effect that there will be a significant response to the Defence Select Committee report, which we have been referring to. I am sure that the Committee will look forward to that response.

I apologise to the noble Baroness, Lady Smith, for not mentioning that she had added her name to the amendments. I did not mean to be rude. I had it in a note that I wrote to myself but I just went over it, so I apologise for that.

In addressing the specific amendments, on Amendment 53 I wrote that I understood what the Minister had said. I think I nearly understood what the noble Lord, Lord Lancaster, was saying. That reflects my ignorance, not his explanation, and it was an important point. I would be interested to see that, but I understood the points that the Minister made about Amendment 53. However, like all of us, I am going to have to reread Hansard a little to fully grasp some of this—and Amendment 54 is a classic example of needing to read it. As I understood it, the Minister said that if the ombudsman makes findings, they are binding; but if they make recommendations, they are non-binding, but that is okay because they can be judicially reviewed. I need to read what she said because, again, the role of the ombudsman is important for us. On Amendment 55, perhaps I need to look again, but I think she said that the Committee will be pleased because the Government are going to go further than is stated in the amendment so, in that sense, more will be done.

Before I make a couple of general points, with respect to Amendment 66B I refer the Minister—if the Committee will bear with me for one moment—to something that I will read. She referred to the Diversity and Inclusion Directorate as one of the reasons that a defence authority was not needed, but paragraph 147 of the report says:

“Although the Wigston Review identified a pressing need to reform the complaints process, the MOD has not fulfilled the recommendation for a Defence Authority, to handle complex BHD complaints outside the chain of command.”

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It will be interesting to hear the Minister’s reply. This is an extremely important amendment, and I thank my noble friend Lord Browne and the other noble Lords for bringing it forward.

[Baroness Goldie (Con)]

My Lords, I have added to my choreography before standing at the Dispatch Box: can I get a Polo mint in before the noble Lord, Lord Coaker, concludes? The answer is no. That is the first question I am able to answer.

I thank the noble Lord, Lord Browne, for tabling Amendment 59, which is supported by the noble Lord, Lord Clement-Jones, and the noble and gallant Lords, Lord Houghton and Lord Craig, and engages with the subject of novel technologies. It is a significant issue that merits discussion, and I am grateful to the noble Lord for his kind remarks.

There is no doubt that the increasing adoption of innovative technologies is changing how military operations are conducted. The noble Lords’ analysis—that we need to be particularly mindful of the legal ramifications—is hard to dispute. From the engagement that I and the department have had with the noble Lords, I know that they understand very well the broader complexities likely to be created by Defence use of AI and are anxious that we should address these issues both purposefully and systematically. This scrutiny and challenge is welcome, because we are grappling with questions and subjects that are indeed very complex.

I hope to reassure your Lordships that the department is alert to these issues and has worked extensively on them over the course of the last 18 months. Noble Lords will understand that I cannot set out details until these positions have been finalised, but work to set a clear direction of travel for defence AI, underpinned by proper policy and governance frameworks, has reached an advanced stage. Key to this is the defence AI strategy, which we hope to publish in the coming months, along with details of the approaches we will use when adopting and using AI. This commitment, which is included in the National AI Strategy, reflects the Government’s broader commitment that the public sector should set an example through how it governs its own use of the technology. Taken together, we intend that these various publications will give a much clearer picture than is currently available, because we recognise that these are important issues that attract a great deal of interest, and we need to be as transparent and engaged as possible.

Noble Lords asked pertinent questions. I think the noble and gallant Lord, Lord Craig, asked some of these: where in the chain of command does responsibility for AI-related outcomes reside? When might the Government have an obligation to use AI to protect service personnel from harm? What are the military and moral consequences of machine-speed warfare? These are vital questions, and we recognise that we do not yet have all the answers.

Nor can we hope to arrive at these answers on our own. We have to persist in our engagement with our international partners and allies, and with our own public and civil society. It is perfectly legitimate for parliamentarians to take an interest in this subject, to ask questions and to table debates. I hope that our forthcoming publications will provide a solid platform for an ongoing effort of public engagement and efforts to enhance public understanding, subject to the usual caveats that may apply to the release of Defence information.

To turn to the subject of the proposed amendment, we are committed to ensuring that our Armed Forces personnel have the best possible care and protection, including protection against spurious legal challenges. I assure noble Lords that, regardless of the technologies employed, all new military capabilities are subject to a rigorous review process for compliance with international humanitarian law. Furthermore, we also adjust our operating procedures to ensure that we stay within the boundaries of the law that applies at the time.

International and domestic frameworks provide the same level of protection around the use of novel technologies as for conventional systems because their general principle is to focus on the action, rather than the tool. These frameworks therefore offer appropriate levels of protection for our personnel. Earlier this year, we acted to bolster this protection in historical cases, for example, through the overseas operations Act.

In respect of artificial intelligence, I have mentioned our forthcoming AI strategy and our plan to publish details of the approaches we will use when adopting and using AI. This is really where we come to the nub of the issue. The noble Lord, Lord Browne, put his finger on it, as did the noble and gallant Lord, Lord Houghton, and the noble Lord, Lord Coaker. I want to try to encapsulate what I hope will be a substantive and reassuring response to them all.

These approaches will not affect or supersede existing legal obligations, but they will ensure coherence across defence. They will also drive the creation of the policy frameworks and systems that, in practical terms, are needed to ensure that personnel researching, developing, delivering and operating AI-enabled systems have an appropriate understanding of those systems and can work with and alongside them in compliance with our various legal and policy frameworks.

The noble Lord, Lord Browne, specifically referred to the NATO AI principles. Essentially, NATO’s position is that alliance members can sign up to these NATO-wide standards or they can produce their own to a similar standard. We support NATO’s leadership in the responsible use of artificial intelligence and, as I have indicated, we intend to publish details of our own approach in early course.

In addition, we will continue to engage internationally, including through the United Nations Conference on Certain Conventional Weapons, to promote consensus on international norms and standards for the use of new and emerging technologies on the battlefield, while continuing to act as a responsible leader in this area.

I think it was the noble Baroness, Lady Smith, who asked about the phrasing I used in response to her noble friend Lord Clement-Jones’s question last week. From memory, I said two things: first, the UK has no systems that could unilaterally employ lethal force without human involvement at some stage in the process. I think that I went on to say that, sharing the concerns of government, civil society and AI experts around the world, the UK opposes the creation and use of systems that would operate without context-appropriate human involvement. I think that is the phrase the noble Baroness sought clarification on.

The phrase means that a person is exercising some form of control over the effect of the use of the weapon in a way that satisfies international humanitarian law. This could be some form of control over the operation in real time, or it could be setting clear operational parameters for a system. I hope that that has been helpful to the noble Baroness in explaining what was behind the use of that phrase.

I have endeavoured to provide reassurance to noble Lords that the Ministry of Defence takes these matters very seriously, is already doing all that needs to be done, and is planning to be proactive in communicating our approach appropriately to Parliament and the public. On this basis, I suggest that the amendment is not needed.

I also say, with the greatest respect to the noble Lord, Lord Browne, and no sense of impertinence, that I do question the utility of requiring a review and a report. This will necessarily be only a snapshot; it will quickly become out of date when we are dealing with a rapidly evolving subject matter. Not to put too fine a point on it, the effort of staffing it risks reducing the capacity needed within the department for developing the extensive systems and frameworks that we need to ensure the proper handling of AI.

I must say that I have enjoyed this debate, as I always enjoy my engagement with the noble Lord, Lord Browne—but, for these reasons, I ask that he withdraw his amendment.

[Lord Browne of Ladyton (Lab)]

I thank the Minister for her response to this debate and, with the indulgence of the Committee, I will refer to parts of her response. I was greatly appreciative of it all, but some parts I welcomed more than others.

I will start with the last point. The criticisms the Minister made about the vehicle that I tabled in order to have this debate was correct. It is implicit in the way I debate these issues that they are moving so fast that probably there is no point in time at which we could publish a report that would not quickly go out of date. I accept that. In fact, for that reason I wish that people, and sometimes senior military officers—but thankfully no British ones—would stop talking about a “race” for this technology. A race requires a line, and the development of this technology has no winning line that we know of.

In fact, the likelihood is that when we move to AGI, which is a hypothetical but likely development, whereby an intelligent agent understands or learns any intellectual task that a human being can, it may well be that we think we are at the line, but the machine does not think we are at the line and runs on and looks back at us and laughs. So I accept all of that but, at some point, we need to find a framework in which we in Parliament can connect with these issues—a methodology for the Government to report to Parliament, to the extent that they can, and for all of us to take responsibility, as we should, for asking our young people to go into situations of conflict, with the possibility that these weapons will be used, with all the implications.

So that is what I am seeking to get. I want a 24 year-old who is asked to take some responsibility in an environment in which these weapons are deployed to know with confidence that he or she is acting within the law. That is my shared responsibility with the Government; we need to find a way of doing that. This may be an imperfect way, but we may always be in an imperfect situation with a moving target. So I thank all noble Lords for their contributions to this debate. None of these debates answers any questions fully, but they all add to our collective knowledge.

I thank the noble and gallant Lord, Lord Houghton, for his unqualified support. He took me slightly by surprise with the deployment of his eloquence to make the case for deploying the law as a weapon of war. I fear that I agree with him—I used to be a lawyer—but I will have to think long and carefully before I give him my unqualified support for that. However, I suspect that, as always, I will end up supporting what he said.

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[Lord Browne of Ladyton (Lab)]

I apologise, but I had not finished—it was a dramatic pregnant pause that misled the noble Baroness.

[Baroness Goldie (Con)]

Your preface is a long one.

[Lord Browne of Ladyton (Lab)]

It is not a preface. I want to turn to Amendment 62, for a couple of paragraphs. The amendment would ensure that

“soldiers aged under 18 are not required to serve for a longer period than adult personnel.”

In my view, the amendment addresses an issue that is just wrong—we just should not be keeping people who signed at 16 in the Army longer than people who signed at 18, just because of their age. There is no justification for that discrimination, in my view. It is an abuse of their rights; they should be treated the same as everybody else, and we should simply get rid of their distinction. I have finished now.

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[Lord Coaker (Lab)]

My Lords, I am a bit nervous of standing up.

I will make some brief remarks, if noble Lords will bear with me. It is somewhat strange for me: my noble friend Lady Massey, the noble Lord, Lord Russell, and I have spent years campaigning on children’s rights and on 100% of occasions have been exactly as one on all these issues. I therefore fully understand the proposal outlined in Amendment 61, but I have always been persuaded by the argument that has been put forward: for some young people in some situations, recruitment into the Army at 16 offers a way out of the situation in which they have found themselves. It is often a desperate situation—not for all the recruits at 16, but certainly for a number of them.

I was persuaded by this as much as anything. Most of the schools I taught in for 20 years before becoming a Member of Parliament and then joining your Lordships’ House were in the most deprived and desperate communities. One of the options available to those young people was the Armed Forces. Indeed, we used to use the uniformed organisations, admittedly not the Army, but certainly organisations such as the cadets, the Scouts and the Guides, if it was girls, to try to instil some structure into completely chaotic lives. I have always felt that, in some situations, recruitment at 16 gave some young people an opportunity that they otherwise would not have had. I have always been persuaded by that argument and certainly that is our position formally from the Front Bench.

I do not want to get into an “I have done this and other people have not” discussion but I have been to the college at Harrogate—not that you have to go to places like that to have a legitimate or honest opinion. I went there when I was shadow Secretary of State a number of years ago and it was fantastic. It was brilliant and the experience of the young people and the dedication of the Army personnel who were responsible for them was first rate. The young people talked openly about their experience there. You can be cynical about it and say that they were set up to do it and they would not say anything else because they would be worried about getting in trouble, but I did not feel that, to be honest. Maybe I was duped—who knows? However, I felt when I was there that those young people expressed a view that supported the fact that they were allowed to be recruited at 16.

I know that there are very deeply held views on both sides on this. They will cut across party lines, probably. As I have said, I am completely persuaded and always have been by that argument that it creates opportunity. That is the position that the Front Bench of Her Majesty’s Opposition have at present.

There are concerns and I think the Minister would say that some of the allegations that have come out need to be addressed. Some of the statistics from the report quoted by my noble friend Lady Massey are concerning. We need to understand the rights and wrongs of the bullying and of the sexual allegations. We need to get to the root of that. As Amendment 62 points out, maybe there is something there that needs to be looked at.

A very serious debate has taken place here and people have very deeply held views. It is a debate that has been going on for decades about whether it is right to recruit young people at that age because they are too young, or whether is it right to create an environment in which they can join at that age if they are properly supported, protected. They are looked after but they are given an opportunity that were it not available to them there would be significant problems in their lives. That opportunity should be made available to them, but that then puts an added responsibility on all of us to ensure that they are properly cared for and properly looked after as part of Her Majesty’s Armed Forces.

[Baroness Goldie (Con)]

First, I can say to all contributors that, wherever one comes from in relation to this debate, this was a cracking debate. It was really interesting, with genuinely thought-provoking contributions from all round the Committee. I thank contributors for that.

The subjects under discussion are, essentially, fairly simple to understand. To look at these two relatively small amendments is perhaps misleading, because they are the genesis of the content that is the trigger for the debate. Essentially, we have amendments tabled in the name of the noble Baroness, Lady Massey of Darwen, with Amendment 61 supported by the right reverend Prelate the Bishop of St Albans, the noble Baroness, Lady Lister of Burtersett, and the noble Lord, Lord Russell of Liverpool. Amendment 62 is once more supported by the noble Baroness, Lady Lister of Burtersett, and the noble Lord, Lord Russell of Liverpool.

These amendments seek to raise the age of recruitment to the Armed Forces to 18 and to ensure that those recruited while under the age of 18 serve the same period of time as those who enlisted at the age of 18. To be honest, what I have detected is a fundamental philosophical divergence: the proposers and supporters of Amendment 61 think that such recruitment is bad; the Government take a different view. I will try to address the concerns articulated by your Lordships in the course of the debate.

I want to be clear about one thing: we comply with the law. We are not in breach of the law in doing what we do. We remain clear that junior entry offers a range of benefits to the individual, the Armed Forces and society, providing a highly valuable vocational training opportunity for those wishing to follow a career in the Armed Forces. I am very grateful to my noble friend Lord Lancaster, who spoke eloquently and authoritatively from a very personal standpoint as to the merit he sees in this system. That opinion should weigh with us.

What I am very happy to do—if others want to respond to this, I am more than happy to support that—is facilitate a visit to the Army Foundation College at Harrogate. I offer to join that visit myself. I, too, have not visited that college, but I would be very happy to do so. I can reassure the noble Baroness, Lady Smith, who specifically asked whether I would be prepared to do that. I hope that, following the impressive marketing strategy from the noble Lord, Lord Coaker, relating to the foundation college, there will be a good take-up of this invitation. I will take that away, engage with those who might be interested in attending and see whether we can get a visit to Yorkshire sorted out.

A number of noble Lords quite rightly raised our duty of care in Defence. We take our duty of care for entrants under 18 extremely seriously. Close attention has understandably been given to this subject in recent years, especially after the tragic deaths at Deepcut. We have robust, effective and independently verified safeguards in place to ensure that under-18s are cared for properly.

I will give a little more detail on that. Mental health and well-being are a priority across Defence and all training establishments. We are clear that the duty of care to all our recruits, in particular those aged under 18, is of the utmost importance, and that those aged under 18 should be treated with special consideration. The 2020-21 Ofsted report, Welfare and Duty of Care in Armed Forces Initial Training, noted the well-co-ordinated care and welfare arrangements for regular and reserve recruits and trainees. At the Army Foundation College in Harrogate, Ofsted was particularly impressed by the strong ethos of emotional and psychological safety, as well as the high standards of all facilities and accommodation. The AFCH has dedicated safeguarding, mental health and well-being leads to support students while they are at the college.

As others have indicated, the provision of education and training for 16 year-old school leavers provides a route into the Armed Forces that complies with the law and government education policy while providing a significant foundation for emotional, physical and educational development throughout an individual’s career. I thank the noble Baroness, Lady Smith. She made a very balanced contribution and acknowledged her acceptance of these virtues.

As others have said, there is no compulsory recruitment into the Armed Forces. Our recruiting policy is absolutely clear. No one under the age of 18 can join the Armed Forces without formal parental consent, and that is checked twice during the application process. The noble Lord, Lord Russell of Liverpool, adduced an example and thought it would be extremely undesirable if the individual whom he envisaged were to go into the Armed Forces but, presumably, in that situation, parental consent would not be given, and one could understand why not. In addition, parents and guardians are positively encouraged to be engaged with the recruiting staff during the process. As has been acknowledged, service personnel under the age of 18 are not deployed on hostile operations outside the UK, or on operations where they may be exposed to hostilities.

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[Lord Browne of Ladyton (Lab)]

On Amendment 62, can the Minister answer this deceptively simple question? Why do the Army, in their regulations regarding the minimum service period, discriminate against younger recruits? On the issue of whether this is legal, I am not arguing that it is illegal—but will the Minister confirm for the record that the only reason why this discrimination, which would be unlawful in civilian life, is lawful, is because the Armed Forces benefit from an exemption from the Equality Act 2010 which was put there to allow them to continue to discriminate?

[Baroness Goldie (Con)]

I think I can add nothing more to what I have already provided by way of an explanation for how that system works and why it is there, and why we do not believe that it is as discriminatory as the noble Lord indicates. However, I am happy to look at his remarks in Hansard and see whether I can provide him with a fuller response.

In conclusion, I thank your Lordships for all contributions. I genuinely thought that it was an extremely interesting debate, and I have welcomed the thoughts from contributors all around the Room.

[Baroness Massey of Darwen (Lab)]

My Lords, I have about 10 pages of notes here, which I shall go through very slowly. I joke, of course—it is late.

First, I thank the Minister for her extended response. I should love to meet her, and I should also like to bring others with me to that meeting, because I think we all have a variety of experiences on this—they are very different. We are almost at some sort of philosophically possibly permanent divide. I know where I stand and the noble Lord, Lord Lancaster, knows where he stands, and possibly never the twain shall meet. But perhaps they will.

I will say a little about some of the comments by my very dear noble friend Lord Coaker, who talked about children joining the guides or scouts. They are not forced to join them, obviously, and can also not go if they do not want to. You cannot do that in the army, so it is a different situation. Sorry about that, Vernon.

In trying to make any comments of any sense, I can only say what I would like next from this debate. It has been a super debate, it has been really interesting and exciting, with very good speeches from my friend the right reverend Prelate, my noble friend Lady Lister, and my friend, the noble Lord, Lord Russell, who are all clearly where I am—on the side of the rights of the child, child protection and welfare. That was my focus: child protection and child welfare.

We perhaps all need to seriously look at—I do not mean in depth, just some summaries—the new research coming out about children’s brains. It is very extensive and scientific. We have to accept from this research that the teenage brain develops at different levels in different children. However, there are trends, and 16 is generally too low an age to accurately make decisions or predict what you want to have in life. I was a teacher—as was my noble friend Lord Coaker—a long time ago. I do not think we knew all this stuff then. We knew that children were different, but we did not have all this scientific input about the development of the brain. I am grateful for it. I have just read a wonderful book about it, and I am really grateful we have it.

The noble Lord, Lord Lancaster, said that the Armed Forces can equip children with skills for life. Yes, they can, but so can other places. I cannot accept that equipping people with skills for life should include such joys as I have heard—I have not quoted all the stories I have heard—about the not-so-good parts of Harrogate. I would love to go to Harrogate with the Minister or anybody else. I am very aware that institutions can gloss over things. I have been in schools, so I know that when you have an Ofsted inspection you would not think there were naughty children there, or anything is wrong, you would just believe what you were told. You were often not invited to interview children. It is absolutely key that children must be interviewed, and parents should give their views as well, to have a complete spectrum of what is going on in an institution.

I keep talking about the rights of children. We should respect the international agreements, that we have not just made but endorsed, about the rights of children as embedded in the UN Convention on the Rights of the Child. It is a hugely important document; we do not know enough about it and we should take more account of it. My noble friend Lady Lister was quite right to bring out the awful reports from the committee on our attention as a country to youth justice and the rights of the child. We need to look at all these things if we have not already.

I would also say that the evidence of people tonight has not really answered this question: if the case for recruiting at 16 is so strong, why do none of our closest allies do it? We are really out on a limb. I read in the Times the other day that the Marines are now looking at recruiting people at an older age because they are more mature and have more experience of life, and that is what they want, rather than people who are raw recruits.

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Moved by

[Baroness Goldie]

67: Clause 24, page 38, line 21, at end insert—
“(ga) paragraphs 1 to 23 and 33 to 52 of Schedule (Tri-service serious crime unit) (and section (Framework for establishment of tri-service serious crime unit) (5), so far as it relates to those paragraphs);”Member’s explanatory statement
This amendment is about the territorial extent of the new Schedule proposed by Baroness Goldie to be inserted after Schedule 4.

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Moved by

[Baroness Goldie]

68: Clause 25, page 39, line 4, leave out “and” and insert—
“(ha) paragraphs 1 to 23 and 33 to 52 of Schedule (Tri-service serious crime unit) (and section (Framework for establishment of tri-service serious crime unit) (5), so far as it relates to those paragraphs), and”Member’s explanatory statement
This amendment is about the territorial extent of the new Schedule proposed by Baroness Goldie to be inserted after Schedule 4.

Armed Forces Bill

Baroness Goldie Excerpts

Committee stage
Tuesday 2nd November 2021 Grand Committee

Moved by

[Baroness Goldie]

38: Clause 11, page 22, line 33, leave out “and service police forces,” and insert “, service police forces and the tri-service serious crime unit,”
Member’s explanatory statement
This amendment would make consequential provision in connection with the new Clause proposed by Baroness Goldie to be inserted after Clause 11.

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

My Lords, I rise to speak to group 7, which comprises government Amendments 38 to 42, 45 to 47, and 67 and 68, in my name. I will speak also to Amendments 43, 44 and 66, in the names of the noble Lords, Lord Coaker, Lord Robertson of Port Ellen and Lord Thomas of Gresford, and the noble and learned Lord, Lord Thomas of Cwmgiedd.

I thought it would be helpful if I started with something of a scene setter on the report of the review conducted by Sir Richard Henriques. As noble Lords will be aware, on 13 October 2020, the Secretary of State announced the commissioning of a review by Sir Richard Henriques, to build upon, but not reopen, the recommendations of the service justice system review by His Honour Shaun Lyons and Sir Jon Murphy.

The aim was to ensure that, in relation to complex and serious allegations of wrongdoing against UK forces on overseas operations, defence has the most up-to-date and future-proof framework, skills and processes in place, and that improvements can be made where necessary. The review was to be forward looking and, while drawing on insights from the handling of allegations from recent operations, it was not to reconsider past investigative or prosecutorial decisions or to reopen historical cases.

I am pleased to say that Sir Richard submitted his report at the end of July 2021 and, as I had committed to do at Second Reading, we published it on 21 October, with a supporting Written Ministerial Statement, to enable your Lordships to have chance to consider it during the passage of the Armed Forces Bill. It goes without saying that we are very grateful for the comprehensive and considered work that Sir Richard has undertaken, and we particularly welcome his recognition of the need for a separate system of military justice. In summary, the report contains a total of 64 recommendations, approximately a third of which are focused on taking forward the establishment of a Defence Serious Crime Unit—DSCU—originally recommended by Sir Jon Murphy.

There are also a number of operations-related recommendations, including for protocols between the service police, the Service Prosecuting Authority and the Judge Advocate-General for processes relating to the timely and effective investigation of allegations of unlawful killing and ill-treatment by UK forces on overseas operations. There are also recommendations for improving the technical IT systems supporting the military courts, and a number of recommendations relating to summary hearings.

As set out in our ministerial Statement, we have prioritised taking forward the recommendations to establish the Defence Serious Crime Unit, and I am extremely pleased that we were able to take swift action to table the government amendments for the key DSCU recommendations—one, two and seven—because they require primary legislation.

We have also committed to taking forward work over the coming months on four other recommendations, which will: amend standard operating procedures to ensure that service police are informed with minimum delay of reportable offences; establish a serious incident board within the Permanent Joint Headquarters; create or upgrade an operational record-keeping system; and adopt a uniform approach in respect of training of service legal personnel prior to their posting to the Service Prosecuting Authority.

The remaining recommendations, including among other things legal support to personnel, improved technology and IT for the service courts and improvements to the summary hearing process, raise wider implications relating to policy and legal and resourcing issues. These will be considered further by the department over the coming months. Where appropriate and necessary, legislation will be brought forward when parliamentary time allows. I will of course update your Lordships on progress.

Our goal will be to ensure that, in considering and taking forward work on Sir Richard’s recommendations, we continue to maintain operational effectiveness and the swift delivery of fair and efficient justice for victims and offenders.

The amendments in my name contain the necessary changes to primary legislation to give effect to the Government’s plans for a new tri-service serious crime unit, headed by a new provost marshal for serious crime. This is an important set of amendments that demonstrate the Ministry of Defence’s commitment to the highest investigative capabilities for the service justice system. Through this, we are rapidly taking forward the most important set of recommendations from Sir Richard Henriques’s recently published review.

The amendments make the following key changes. The new clause provides that the new provost marshal for serious crime is subject to the same rules about appointment as existing provost marshals. This means appointment by Her Majesty and the requirement that they be an officer in the service police. The new clause also provides that the new provost marshal for serious crime will be responsible for ensuring that investigations of the new tri-service serious crime unit are independent.

The new schedule contains consequential amendments relating to the clause and provides the new provost marshal for serious crime with the same investigative powers as the pre-existing provost marshals for the Royal Navy, Army and Royal Air Force and service police. I should underline that these are not new investigatory powers for the service police. This is about ensuring that the existing service police investigatory powers are available for the new arrangements. We expect there to be a similar consequential exercise for changes needed to secondary legislation.

Sir Richard’s recommendations supported those made by His Honour Judge Shaun Lyons and Sir Jon Murphy regarding the implementation of a Defence Serious Crime Unit. He further recommended: that the Defence Serious Crime Unit be an operational unit; that it should be commanded by a provost marshal for serious crime; and that the provost marshal for serious crime should have a duty of operational independence in investigative matters owed to the Defence Council, on the same terms as that owed by the service provost marshals under Section 115A of the Armed Forces Act 2006.

The Ministry of Defence has been working on the Defence Serious Crime Unit model since the recommendations made by the Lyons and Murphy review. There were non-legislative ways of implementing the recommendations from Lyons and Murphy under consideration. However, the recommendations from Sir Richard require primary legislation, particularly as far as they concern the operational independence of the unit and the new provost marshal.

The Defence Secretary is adamant that we should progress these aspects of Sir Richard’s report with the utmost speed, which is why we are bringing these amendments before your Lordships today. With the support of noble Lords, we will be able to implement these critical recommendations and, in tandem, we will progress the remaining recommendations which focus on the functionality, remit and operational considerations for the unit.

With the establishment of the new provost marshal for serious crime and the tri-service serious crime unit, the MoD will be in a stronger position to respond to serious crime. We will be able to combine resources and specialist skills from across the single services under one unit and will build an independent, more effective and collaborative approach to policing across defence.

This reinforces the decision by the Secretary of State for Defence that the existing principle of jurisdictional concurrency between the service and civilian jurisdictions should be maintained. That of course is a position that Sir Richard Henriques has also supported. The service justice system is capable of dealing with the full range of offences when they occur, in the UK as well as overseas. These changes to service policing will support that capability into the future.

I hope that this explanation assures noble Lords of our commitment to the improvement of policing across the service justice system and our intent to adopt the recommendations provided in the judge-led reviews. I therefore urge your Lordships to support the proposed amendments in my name.

[Lord Robertson of Port Ellen (Lab)]

Will the noble Baroness give way for a moment? She admits that she is not implementing all the recommendations in the Henriques report in relation to the prosecution and then she said that the Government would consider them with utmost speed. I recognise all these wonderful phrases. Then she said that she would bring forward amendments when parliamentary time allows. That seems to me to kick the matter down the road. Some of his recommendations that are not part of this new clause need to be implemented as early as possible. I am sure the Minister will eventually find that “when parliamentary time allows” normally means in many years’ time.

[Baroness Goldie (Con)]

I am just checking back to see what I actually read out. I was pointing out that this is roughly broken into three sectors. One is what we are taking forward today with the amendments. The second concerns four other specific recommendations that we are taking forward. Then the remaining recommendations, as I said, raise wider implications for policy, resourcing and legal issues. I said that these will be considered further by the department over the coming months and, where appropriate and necessary, legislation will be brought forward when parliamentary time allows.

That is not kicking the can down the road. That is to simply say to the noble Lord that we recognise that we still have research, inquiry and investigation to do in the department to understand the consequences of these recommendations from Henriques. We want to be clear about that but, equally, we are very positive about Sir Richard Henriques’ report. I said that our goal will always be to ensure that, in considering and taking forward work on his recommendations, we keep an eye on operational effectiveness and the swift delivery of fair and efficient justice for victims and offenders.

I hope that explains to the noble Lord why I cannot really go any further than that today. I certainly dispute his analogy of kicking the can down the road. This is a serious and substantial piece of work. We are prioritising the most important part, which we think will make a big difference to policing within the service justice system, and we are being canny about how we then progress the other bits of the report.

[Lord Robertson of Port Ellen (Lab)]

May I ask the Minister to be more specific and tell us which of his recommendations in relation to this specific part raise policy implications that will have to be considered over some time?

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[Baroness Goldie (Con)]

The noble Lord will have read the report and he will be in no doubt, I imagine, about both the extent and the complexity of many of the recommendations. I cannot be drawn into commenting on something where we are still doing the exploratory work to understand what the implications of the recommendations are. To reassure the noble Lord, as I said earlier, we are very positive about this report. It is a huge contribution to how we deal with justice and the service justice system. I beseech the noble Lord to exercise a little patience. I know that his natural interest in these matters, and the avenues available to him to pursue that interest, will ensure that I and the department are kept on our toes.

I was about to speak to Amendments 43, 44 and 66. I turn first to Amendment 43. That seeks to change the wording in government Amendment 42 on the duty of investigative independence for the defence serious crime unit. Government Amendment 42 works by updating the existing duty on the service police currently contained in Section 115A of the Armed Forces Act 2006. The government Amendment provides that the provost marshal for serious crime must

“seek to ensure that all investigations carried out by the tri-service serious crime unit are free from improper interference.”

The term “improper interference” is already defined in Section 115A. It includes any attempt by someone not in the service police to direct an investigation. Amendment 43 would amend the duty so that, rather than seek to ensure that investigations are carried out free from improper interference, the duty will be absolute, placing on the provost marshal a need to guarantee—“to ensure”—that the investigations are operationally independent.

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[Lord Robertson of Port Ellen (Lab)]

My Lords, it is a great privilege to follow the former Lord Chief Justice of England and Wales in making the valuable and very firm points that he made. The question he asks is far from rhetorical. Why should members of our Armed Forces settle for second best? Why should we expect them to be less entitled to systems of justice that ordinary citizens can access?

I have vivid memories of the overseas operations Bill from this Session of Parliament. That was another Bill that came from the House of Commons, where the debates were dominated by a Minister demanding total obedience to every dot and comma of the Bill on the grounds that if you were against it, you were against the British Army, thereby allowing through provisions that might well have led to British soldiers and other members of Britain’s Armed Forces appearing before the International Criminal Court. Eventually, the Government woke up, but not without huge pressure and a lot of distinguished Members of this House making sure they got a very firm message. I do not want to embarrass the Minister too much, but I know that she played a role in getting common sense seen in that debate.

When we look at legislation being brought forward by the Government, we are wise to be cautious about what the Government say in their own defence. Therefore, when the Minister says that there are elements in the Henriques report which require attention and I ask which of those have policy implications, I would expect the department to be able to tell us. I recognise the phrase “when parliamentary time allows”, because I am sure I used it during my ministerial career. There is usually very little parliamentary time available for primary legislation, which is what would be required to enact the remaining aspects of the Henriques recommendations.

I follow my noble friend Lord Coaker in what he says and his detailed questions. The key question concerns the fact that, while Henriques made a number of recommendations, 13 of them have not appeared in the amendments to the Bill in this Committee. He is right to ask this question, which I repeat: which of these require policy consideration, because that could take a very considerable period to come forward as well?

The stories in the Sunday Times, both last Sunday and the Sunday before, should, frankly, horrify all of us. What is described there is disgraceful, disgusting and completely indefensible. I am not a lawyer or a soldier, but I cannot understand why action is not being taken and investigations into this particular incident are not taking place. We are being told that only if the Kenyan authorities start to make their inquiries will anything happen in this country, when there seems to be clear evidence around, involving British citizens and members of the British Armed Forces involved in this. Why has there not been some investigation? Just as members of the Armed Forces are perfectly entitled to be treated like other citizens in this country, victims also have a right to the kind of justice and investigation that we would expect for anyone else in the country.

We should not allow the Sunday Times to develop this story, week after week, with hugely damaging effects on the reputation of our Armed Forces, the recruitment of people into them and the country as a whole. Although it is not, strictly speaking, the business of this Committee, it is a matter of public concern. It has alerted the public in general to the whole question of service discipline. Therefore, the business of this Committee and Bill, detailed and arcane as it is in some ways, has now become a matter of public attention. It is up to the Government and Ministers in the Ministry of Defence to pay attention to that and resolve it so that they protect the reputation of the country and our distinguished Armed Forces.

[Baroness Goldie (Con)]

My Lords, I first thank noble Lords for an interesting and stimulating debate, as ever. I shall endeavour to respond to the points raised. I certainly hope that the fate that befell Admiral Byng, so colourfully described by the noble Lord, Lord Thomas of Gresford, does not befall me, or the proceedings would come to a summary conclusion.

I will first address the points raised by the noble Lord, Lord Coaker, who said, quite correctly, that perception is important. I agree with that, but so is legal exactitude, which is, I accept, tedious to some but none the less absolutely vital in the framing of legislation. I will come to that in a little more detail shortly.

I say to the noble Lords, Lord Coaker and Lord Robertson—who, with the best of intentions, I know, raised the appalling situation of the Kenyan lady —that I am constrained. This is a live investigation in Kenya, and it is sub judice. I can say that the Secretary of State has offered our full co-operation, but it is essentially a Kenyan investigation. We are prepared to offer any co-operation that we can when they request it. We have to let the investigatory process continue.

The noble Lord, Lord Coaker, reverted to the point raised by the noble Lord, Lord Robertson, about the remaining Henriques recommendations. I looked at again at what I said and double-checked where we are. I do not want to be discouraging or disappointing, but I can put my hand on my heart and say that approximately 40 of these recommendations require policy and legal analysis. That is factual, and I cannot accelerate that at the moment, but I am happy to give your Lordships an undertaking that I shall certainly monitor and report back on progress. I hope that will reassure your Lordships that this is not some somnolent process that will fall asleep once Committee stage is over. I am very happy to place that on the record and offer to do that.

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[Lord Lancaster of Kimbolton (Con)]

I sense that my noble friend might be coming to the end of her remarks. Perhaps I might take her back to the question of independence and the need for the appointment to come from members of the service police. The answer that she gave to the Committee was, “Well, that’s what the Armed Forces Act says”. My response would be, “Well, so what?” Is it not the purpose of this Bill and this Committee to look again at these issues? I do not want to put my noble friend on the spot, but could we perhaps think again as to whether that is still the best thing to do, given the nature of the role, and whether, as we move forward, because there are other examples in defence where we recruit from civilians because they are best qualified and best placed, the time has come to look again at that requirement?

[Baroness Goldie (Con)]

I cannot give my noble friend the certainty of the assurance that he seeks, but I indicated that the rank was decided based on the current rank range of the single service provost marshal. We are open to revisiting the rank of provost marshal for serious crime—that is one of the recommendations in Henriques—and we would intend to review the post three years after the unit is operational. That is a sensible review period to allow some time to elapse. We want to ensure that the post remains aligned with the level of responsibility that is implicit in the role and the relevant and recent skills and experience of the postholder, and that it remains open to all three services to compete for. I can say to my noble friend that there is continued thinking on this, but I cannot at this stage provide him with the certainty that he seeks.

I have tried to address the points that have arisen and I hope that I have covered them all. In these circumstances, I ask noble Lords not to press their amendments.

[Lord Thomas of Gresford (LD)]

Perhaps I might draw to the Minister’s attention her amendment, which states in subsection (3)(b) of the proposed new clause:

“The Provost Marshal for serious crime has a duty, owed to the Defence Council, to seek to ensure that all investigations carried out by the tri-service serious crime unit are free from improper interference.”


Does she not agree that that is miles away from the formulation proposed by Sir Richard Henriques, as stated in Amendment 43, that the duty is to

“ensure all investigations are operationally independent from the military chain of command”?

I have tried to point out that we have got away from the military chain of command in the justice system and that justice comes first, before discipline, in that area—individual justice. Does the Minister not see the difference in the wording, and how much stronger is Sir Richard Henriques’ formulation?

[Baroness Goldie (Con)]

I say to the noble Lord—and I do not want to reprise everything that I have said—that we recognise the different characteristics within the service justice system that are not necessarily a part of the civilian system. We have to acknowledge that, as I indicated, it is not easy to just place things in silos. If something happens on an overseas operation, the chain of command may have to take action. That is why we talk about “improper interference”. I think that is an important distinction. What we are placing upon the provost marshal and the Defence Serious Crime Unit is the obligation to be independent and to seek to ensure the independence of the investigation.

However, we also have to acknowledge the reality of the environment in which these individuals are operating. That is why the Government have deliberately chosen the phrasing they have. I said earlier that there is nothing innovative about that phrasing; it deploys existing text from previous Acts. But I suggest to the noble and learned Lord that it would be unwise to place on the provost marshal obligations that are beyond the wit of the provost marshal to discharge. Equally, it would be wrong to condemn the chain of command for taking action in the early stages of an incident which the chain of command may have had no alternative but to take to protect personnel, to look after safety, to preserve evidence or whatever. That is why the Government prefer the phrasing they have adopted.

[Lord Thomas of Cwmgiedd (CB)]

May I ask one question? I asked: why does the Bill contain no institutional provisions to protect the independence? Maybe the Minister needs a little more time to think about this and look at what protection is given in relation to the civilian police. I would be grateful if she could write with an answer about the institutional support that backs up independence.

[Baroness Goldie (Con)]

I hear the noble and learned Lord. I think there is an acceptance within the service justice system that there is operational independence. I have had that confirmed to me by military police officers, particularly those investigating senior ranks and above their rank. They have not felt inhibited. They have not felt constrained. They have absolutely done the work they have needed to do. But I will reflect on the noble and learned Lord’s remarks and see whether I can offer any comfort.

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Moved by

[Baroness Goldie]

39: Clause 11, page 23, line 26, leave out “and service police forces,” and insert “, service police forces and the tri-service serious crime unit,”
Member’s explanatory statement
This amendment would make consequential provision in connection with the new Clause proposed by Baroness Goldie to be inserted after Clause 11.

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Moved by

[Baroness Goldie]

42: After Clause 11, insert the following new Clause—
“Framework for establishment of tri-service serious crime unit
(1) The Armed Forces Act 2006 is amended as follows.(2) In section 365A (Provost Marshals: appointment), in subsection (1), after “force” insert “, or to be Provost Marshal for serious crime,”.(3) In section 115A (Provost Marshal’s duty in relation to independence of investigations)— (a) in subsection (1), for “This section” substitute “Subsection (2)”;(b) after subsection (2) insert—“(2A) The Provost Marshal for serious crime has a duty, owed to the Defence Council, to seek to ensure that all investigations carried out by the tri-service serious crime unit are free from improper interference.”;(c) in subsection (3), at the end insert “or (as the case may be) the unit.”(4) In section 375 (definitions relating to police forces)—(a) in the heading, after “to” insert “the service police and other”;(b) after subsection (1) insert—“(1A) In this Act the “tri-service serious crime unit” means a unit under the direction of the Provost Marshal for serious crime, each member of which is a member of a service police force.”(5) Schedule (Tri-service serious crime unit) makes further provision about the tri-service serious crime unit and the Provost Marshal for serious crime.(6) The Secretary of State may by regulations made by statutory instrument make such provision amending or revoking any provision of subordinate legislation made before the passing of this Act as appears to the Secretary of State to be appropriate in consequence of any provision of this section or Schedule (Tri-service serious crime unit).(7) Regulations under subsection (6) may include transitional provisions or savings.(8) A statutory instrument containing regulations under subsection (6) is subject to annulment in pursuance of a resolution of either House of Parliament.(9) In subsection (6)“subordinate legislation” means—(a) subordinate legislation within the meaning of the Interpretation Act 1978,(b) an instrument made under an Act of the Scottish Parliament, or(c) an instrument made under Northern Ireland legislation.”Member’s explanatory statement
This amendment and the amendment in the name of Baroness Goldie to insert a new Schedule after Schedule 4 would make provision in connection with the establishment of a tri-service serious crime unit and with regard to the functions of the Provost Marshal for serious crime who is to be the head of that unit.

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Moved by

[Baroness Goldie]

45: After Schedule 4, insert the following new Schedule—

“TRI-SERVICE SERIOUS CRIME UNIT

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Moved by

[Baroness Goldie]

46: Clause 13, page 26, line 11, leave out “service police force” and insert “relevant body”
Member’s explanatory statement
This amendment would make consequential provision in connection with the new Clause proposed by Baroness Goldie to be inserted after Clause 11.

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I sometimes think that clear exposition of these things in a way that is understandable and makes sense of policy would be of benefit not only to our Armed Forces but to those of us seeking to scrutinise legislation and to make it in a way that helps and makes sense to people. In that way, we can turn to our Armed Forces, now and in the future, and say, “We recognise that mental health has been a problem and that duty of care is a problem. This is what is happening, this is the amount of money that is being spent and these will be the benefits of that.” I think that all of us would welcome some clarity about all that from the Minister in her response.

[Baroness Goldie (Con)]

My Lords, I think we all found that a fascinating discussion. I will say later in my remarks that I indicated during the passage of the overseas operations Bill that I felt that some of these issues would be worth revisiting in the Armed Forces Bill. I am very grateful to the noble Lord, Lord Dannatt, for raising the issues. I will address the points on which he specifically sought clarification later in my speech, but I pay particular tribute not just to the content of your Lordships’ contributions but to the emotional sentiment and the calibre of that sentiment, as so eloquently expressed by the noble Lord, Lord Robertson.

These important amendments centre on the issue of service personnel and mental health. As I said, I am very grateful to be able to look at these amendments. I accept that the amendments in the name of the noble Lord, Lord Dannatt, are well intended. Amendment 48 is supported by the noble and gallant Lord, Lord Houghton of Richmond, the noble Lord, Lord Coaker, and the noble Baroness, Lady Brinton, while Amendment 66A is supported by the noble and gallant Lords, Lord Stirrup and Lord Boyce, with the noble Lord, Lord Coaker, lending his weight as well.

I also extend my gratitude to the right reverend Prelate the Bishop of St Albans, whose Amendment 60 highlights the potential harmful impact that addictive gambling could have on our service personnel. His amendment is supported by the noble Lords, Lord Browne of Ladyton and Lord Foster of Bath. The right reverend Prelate’s determined pursuit of the potential harm of addictive gambling is acknowledged and admired. I assure him that I have looked at the research he referred to, which I shall refer to when I address his amendment.

Amendment 48 seeks to ensure that the Government make provision for additional mental health support, including for service personnel affected by the United Kingdom’s withdrawal from and the Taliban takeover of Afghanistan in 2021. The noble Lord, Lord Dannatt, asked about Afghanistan and the effect of Operation Pitting on those who participated. I am not dodging the issue, but as yet there is no clear evidence to support what mental health impact the current Afghanistan situation is having. The MoD is prepared with comprehensive services and support for everyone who may have been affected by this situation.

The noble Lord, Lord Dannatt, specifically raised the issue of suicides. The MoD has begun the defence suicide register. It relates to all suicides across defence, including those relating to Afghanistan. It is anticipated that this review or register will be released in spring 2022. I hope that provides the noble Lord with some reassurance that active attention is being directed to this.

It is MoD policy that mental health should be properly recognised and appropriately handled, and that every effort should be made to reduce the associated stigma. The MoD recognises that mental ill-health can be a serious and disabling condition, but one that can be treated through education, training, diagnosis and specialist care. We have a resilient workforce and are focused on the prevent space all the time, not just with current events. I will explain to your Lordships what we do now. I thank the noble Lord, Lord Coaker, who said that, time was, we did not really talk about these issues. I say to him: we want to talk about them now, we can talk about them now, and that is what we should do.

Every year the MoD publishes the United Kingdom Armed Forces Mental Health bulletin, which provides a summary relating to Armed Forces personnel seen in all military healthcare services—primary care and specialist mental health care—for a mental health-related reason. It provides a wider picture of mental health among Armed Forces personnel. The noble Lord, Lord Coaker, justifiably asked about the level of need. That annual bulletin is a useful indicator of level of need.

The noble Lord, Lord Coaker, also asked for an overall figure of resource applied to the mental health support given to service personnel and veterans. I will inquire and see what I can find out. I undertake to write to the noble Lord, and I shall place that letter in the Library.

In June 2021, the annual UK Armed Forces Mental Health bulletin showed that the mental health of UK Armed Forces personnel is

“broadly comparable to that seen in the UK general population”

and that the rate of mental ill-health

“for those needing specialist mental health treatment was lower in the UK armed forces than that seen in the UK general population.”

The noble Lord, Lord Dannatt, referred to the helpful description that I believe my ministerial colleague for defence personnel and veterans used: the “gold standard” of what we try to do. I think we do have a gold standard in relation to the provision of mental health support for our Armed Forces and veterans. I am going to take some time to explain what we do, because it is important that I share with your Lordships as much information as I can. All Armed Forces personnel are supported by dedicated medical services, including mental health support. The MoD works with the single services, Defence Medical Services and other stakeholders to promote mental fitness, prevent ill health and reduce stigma. The noble and gallant Lord, Lord Houghton, and the noble Viscount, Lord Brookeborough, quite rightly raised that important issue.

Each of the single services provides through-career mental resilience and stress management training, including a defence course for senior officers. Armed Forces personnel who experience a traumatic event are supported through the trauma risk management process. The MoD has also produced the HeadFIT website to encourage the good management of mental fitness. An online mental health fundamentals course is available to all Armed Forces personnel and, from 11 October this year, the annual mental fitness brief is mandated activity for all Armed Forces personnel, delivering an understanding of mental health and well-being, stress management, how to transform stress into mental resilience and where personnel can seek appropriate help.

The MoD provides a 24-hour mental health helpline for Armed Forces personnel and their families delivered by Combat Stress. Togetherall allows Armed Forces personnel access to its 24-hour staffed digital forum, and the Samaritans deliver bespoke workplace training and a peer support pocket guide providing guidance on how to talk to and support colleagues struggling to cope with mental ill-health.

One question that arose was: what processes are in place to identify those who are vulnerable and most at risk of developing mental illness? No system can detect every individual at risk of mental illness. Nevertheless—I say this to reassure the noble Lord, Lord Robertson—measures are in place to increase awareness at all levels and to mitigate the development of operational stresses. These include pre and post-deployment briefing and the availability of support, assessment, and, if required, treatment both during and after deployment. This is available to all personnel, whether regular or mobilised reservists.

Going back to the important issue of stigma, what is the MoD trying to do to help address that and people’s reluctance to accept or seek help? Stigma is not, as your Lordships will understand, an issue only for the UK Armed Forces. It accompanies mental health issues among the general population. But, from September this year, all Armed Forces personnel receive a mandatory annual mental health and well-being briefing. It focuses on increasing awareness of mental health and the personal barriers that prevent some personnel seeking support.

We move on to the important issue raised by a number of noble Lords: the transition. What do you do when you propose to go from active service to the status of veteran? What support is given to service leavers with mental health issues to ensure that they do not slip through the gaps in that transition? Where personnel leaving the Armed Forces have an enduring need for mental health care, we work in partnership with the NHS to ensure continuation of care. The MoD’s departments of community mental health are accessible for up to six months after discharge to help veterans during their transition period.

An important question was raised by the noble Viscount, Lord Brookeborough: what are we doing to support the mental health needs of veterans? Wherever they live in the UK, all veterans are able to receive specialist mental health support if they need it. The MoD and the Office for Veterans’ Affairs work in close partnership with a variety of different organisations, including the NHS and the devolved Administrations, who are responsible for health care, including mental health care, for veterans, and service charities.

The through-life mental health support now provided to Armed Forces personnel will also have a positive impact on the veterans of the future. We are ensuring that Armed Forces personnel have the psychological resilience training they need to recognise mental ill-health in themselves and those around them and know how to manage it.

What about the supporting background, which is also critical? The majority of Armed Forces personnel who seek mental health care are actually managed by their GP. However, some with more complex needs will receive treatment from specialist mental health care providers. MoD specialist mental health services are configured to provide community-based mental health care in line with national best practice. This is done through 11 military departments of community mental health across the UK that provide outpatient mental health care. These DCMH teams comprise psychiatrists, mental health nurses, clinical psychologists, senior mental health practitioners and mental health social workers. A wide range of psychiatric and psychological treatments are available, including medication, psychological therapies and environmental adjustment, where appropriate.

For those personnel requiring medical intervention, the Defence Medical Services provide a responsive, flexible, accessible and comprehensive treatment service. Some 10.5% of UK Armed Forces personnel were seen in military healthcare for a mental health-related reason in 2021. This figure includes both personnel seen by their GP and those who required the support of specialist mental health services. We also do more out in the broader community. The Defence Medical Services set up Project Rebalance, a self-referral provision for serving personnel seeking mental health care who are pregnant or are on maternity leave. In February 2021, the Defence Medical Services set up another self-referral provision—Project Direct Support—for DMS personnel seeking mental health care while being engaged in clinical front-line duties during Covid.

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[Baroness Smith of Newnham (LD)]

My Lords, I support both amendments. I added my name to Amendment 49; it was merely an omission not to have added my name to Amendment 63 since both amendments, as we have heard, are important. At Second Reading, I spoke about the situation with the Gurkhas; my only experience of them is visiting once while on the Armed Forces Parliamentary Scheme, so I have no interest to declare in the way that the noble Lord, Lord Lancaster, has.

However, like other noble Lords, I am deeply aware of the importance of the Gurkhas and the service they give. We need to think what signals we send if we say, “You can work with us; you can put your life on the line and die for us. But if you wish to have indefinite leave to remain, we will charge you huge sums of money, as if you were simply coming as a third-country national with no relationship to our country.” People who have been serving with us, such as the Gurkhas and Commonwealth citizens working within our Armed Forces, should be given the opportunity to have indefinite leave to remain on an at-cost basis, as we ourselves would when we sign up for a passport. We do not get our passports free but we pay the cost.

Earlier on, the Minister suggested that the MoD has certain duties, but this is not currently a duty. The MoD and the Home Office could do something relatively straightforward about this and make a huge difference in the message that we send to service personnel from Commonwealth countries.

Finally, I add a word in support of the comments of the noble and gallant Lord, Lord Craig of Radley, about Hong Kong. This is partly because my noble friend Lord Alton of Liverpool was hoping to speak on this amendment in support of the service personnel from Hong Kong; he sat through the first group and most of our next debate but has had to leave for another meeting. It is very important that we think again about the commitments to Hong Kong. As the noble Lord, Lord Dannatt, said, it is slightly an issue of history and timing that the withdrawal from Afghanistan has happened in the middle of the passage of the Bill, and it sends certain messages. However, that withdrawal and the situation in Hong Kong again mean that we have certain duties. It would behove the MoD and the Home Office to look generously also on service personnel from Hong Kong.

[Baroness Goldie (Con)]

My Lords, I thank your Lordships for their contributions on an issue that might look fairly contained but is, none the less, important. I will look first at Amendment 49, on fees for indefinite leave to remain, which was moved by the noble Lord, Lord Coaker, and supported by the noble and gallant Lord, Lord Craig of Radley, the noble Lord, Lord Dannatt, and the noble Baroness, Lady Smith of Newnham. I make clear immediately that the Government highly value the service of all members of the Armed Forces, including Commonwealth nationals, and Gurkhas from Nepal, who have a long and distinguished history of service to the UK, both here and overseas.

Your Lordships will be aware that the Home Office, not the MoD, has a specific set of Immigration Rules for Armed Forces personnel and their dependants, the Appendix Armed Forces. Under these rules, non-UK service personnel enlisted in the regular Armed Forces, including Commonwealth citizens, and Gurkhas from Nepal, are granted an exemption from immigration status for the duration of their service to allow them to come and go without restriction. They are therefore free from any requirements to make visa applications or pay any fees while they serve, unlike almost every other category of migrant coming to work in the UK.

Non-UK service personnel who have served at least four years or been medically discharged as a result of their service can choose to settle in the UK after their service and pay the relevant fee. As my noble friend Lord Lancaster indicated, the time before discharge when such settlement applications can be submitted has been extended this year from 10 to 18 weeks. Those applying for themselves do not have to meet an income requirement, be sponsored by an employer or meet any requirements regarding their skills or knowledge of the English language or of life in the UK. That again puts them in a favourable position compared with other migrants wishing to settle here.

The noble Lord, Lord Dannatt, asked specifically about the situation of Afghan interpreters and sought to draw an analogy between them and the group that we are discussing under these amendments. ARAP and the ex-gratia scheme before it were set up in recognition of something very simple: the serious and immediate danger locally engaged staff would face, were they to remain in Afghanistan. The unique and perilous situation that this group of Afghans faced, because of their support for Her Majesty’s Government, required a bespoke solution to meet that immediate and extreme need.

I can tell the noble Viscount, Lord Brookeborough, that specific Immigration Rules are already in place for our non-UK service personnel and veterans, as I have outlined, to ensure that those who choose to can remain in the UK after service. Some choose to take up that offer, while others return to their original nation, but that personal choice is not overshadowed by risk of persecution or even death, such as would be faced by Afghan citizens if they returned to Afghanistan.

[Lord Dannatt (CB)]

I hope the noble Baroness will forgive me for interrupting. I much appreciate her point, but my point was not in this instance to do with interpreters. I am very grateful for the work of the Ministry of Defence in enabling many of our interpreters to come to this country, and more is still to be done. I was referring to members of the Afghan National Army who have found their way back to this country through the evacuation flights. As soldiers of another nation, they are going to be accorded better rights of residence in this country than foreign and Commonwealth soldiers who have served as members of the British Armed Forces.

[Baroness Goldie (Con)]

I referred to locally employed citizens in Afghanistan. It may be that some members of the Afghan army felt at risk and that their lives were imperilled, and therefore sought to return to this country. We would bring them under the overall umbrella of help we felt it necessary to provide people who came here because they feared for their lives—and they were people with whom we had a relationship. So I suggest that there is not a complete analogy in the noble Lord’s description.

We recognise that settlement fees place a financial burden on non-UK serving personnel wishing to remain in the UK after their discharge, and the strength of feeling from parliamentarians, service charities and the public about this issue. As has already been indicated, the Ministry of Defence, together with the Home Office, ran a public consultation between 26 May and 7 July 2021 regarding a policy proposal to waive settlement fees for non-UK service personnel. The noble Lord, Lord Tunnicliffe, asked when we will get an outcome from that. I can say to him that 6,398 responses were received. These are having to be sifted through. The results are currently being considered and the Government will publish their response in due course. The Government are aware that there is a certain anticipation in the outside world to know their response.

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[Baroness Smith of Newnham (LD)]

My Lords, I rise briefly merely to add the support of the Liberal Democrat Benches to the three amendments. I completely understand that, if there are discussions between the Home Office, the MoD and the noble Lords, Lord Lexden and Lord Cashman, about Amendments 57 and 58, I will take that as read and assume that we do not need to discuss them further at this stage. Obviously, we on these Benches support the amendments.

As the noble Lord, Lord Coaker, said in his opening remarks, there is a set of issues that we clearly still need to think and talk about, and injustices that need to be righted. So, while Amendments 57 and 58 may not come back to us, I assume that the amendment from the noble Lord, Lord Coaker, will come back in some form. We will support it.

[Baroness Goldie (Con)]

My Lords, this may have been a short debate but I do not think that any of us can doubt the passion and commitment that have been evident in the contributing speeches.

I thank the noble Lord, Lord Coaker, for moving Amendment 50 and the noble Lords, Lord Cashman and Lord Lexden, for tabling Amendments 57 and 58. All three amendments have undoubtedly been tabled with deep compassion and humanity, with the intent of righting a past wrong. They are all concerned about the historical effect of the criminalisation of homosexual behaviour in the Armed Forces. As the Minister in the defence department responsible for diversity and inclusion, I feel a personal commitment to deliver improvement; I say that in a manner that I hope reassures noble Lords.

Amendment 50 seeks to place an obligation on the defence department to commission a comprehensive report on the number of service personnel who were dismissed, discharged or charged with disciplinary offences due to their sexual orientation or gender identity, and to make recommendations for compensation and restoration. I am pleased to remind the Committee that the Government accept entirely that the historical policy prohibiting homosexuality in the Armed Forces was absolutely wrong. The noble Lord, Lord Coaker, is right: there is a sense of shame. We recognise this and are looking, where appropriate, to address the historical injustice suffered by members of the LGBT+ community as a consequence.

Our priority is effectively to look at what the Government can do to better understand the impact of pre-2000 practices on LGBT+ veterans and swiftly put in place a series of steps to address past wrongs. We acknowledge that many individuals, including the noble Lord, Lord Coaker, would like to understand how many people were affected by past practices. This is not a straightforward task. I must say, focusing solely on it would detract from our primary goal of righting historical failures, which is what we are engaged in doing and, I hope, what the Bill reflects.

While we agree that identifying how many people were affected has value, this must not overtake our efforts to find further tangible ways to do right by those who were treated unjustly. We therefore resist the amendment because it will constrain the work already under way now. Having said that, the MoD is working at pace to identify the cohort of individuals affected due to this policy. This will not be a quick process; it will take time.

We are also investigating historical records to see whether we can establish members of the Armed Forces who were encouraged to leave the Armed Forces due to their sexual orientation and gender identity. However, this latter cohort, as your Lordships will understand, will be much harder to identify, given that their personal files may not explicitly link their departure to their sexual orientation and gender identity.

In February this year, we announced the restoration of military medals to Armed Forces personnel discharged on the basis of their sexuality. Since February, we have received a number of applications in response to that well-publicised announcement. These are being actively considered.

On the scope of current legal disregards, as the noble Lord, Lord Cashman, indicated, the Home Office and the MoD are working together to consider whether any further services offences can be brought within the scope of the disregards scheme. The current legislation—the Protection of Freedoms Act 2012—is very specific as to the offences that can be considered for a disregard, with the scope being limited to offences that have since been abolished or repealed and that criminalised homosexual activity. I am sure that many of your Lordships will be aware that our decision to address this issue has drawn the support of organisations such as Fighting With Pride and Stonewall, and we continue to engage with these and other stakeholders as we work together to make it clear that the military is a positive place to work for all who choose to serve.

As noble Lords have heard, there is a significant amount of cross-government activity, which includes, but is not limited to, working with the Cabinet Office, the Office for Veterans’ Affairs, the Ministry of Defence and the Home Office. I thank the noble Lord for attending the meetings, which I attended with my colleague and noble friend Lady Williams of Trafford. I hope that the noble Lord, Lord Coaker, is reassured by what I have been able to say today, and will agree to withdraw his amendment.

As we know, Amendments 57 and 58 seek to extend the disregard and pardon schemes to include all service discipline offences, whether repealed or not, for which gay service personnel were convicted or cautioned. They also seek, where applicable, to provide posthumous pardons to deceased service personnel. I am grateful to the noble Lord, Lord Cashman, for indicating that he will not press these amendments. As I just said, on the scope of current legal disregards and pardons, the Home Office and the MoD are working together to consider whether any further services offences can be brought within the scope of these schemes.

There is a significant amount of cross-government activity to resolve the issue of historic hurt. As the noble Lord, Lord Cashman, indicated, we are already in conversation with him—as well as with the Home Office and Professor Paul Johnson of York University—to find the best course of action to implement the necessary legislation to address this issue. It is complex; there are technical complications in understanding which Acts apply and how we must draft remedial provisions. We must be mindful to mitigate the potential risks that a whole-scale adoption of these amendments in both this Bill and the Police, Crime, Sentencing and Courts Bill may cause.

This will not be a straightforward task. We need to continue to develop cross-departmental policy and correctly identify the approach to be taken. We therefore resist the amendment because this Bill is not the most suitable place to make these amendments; rather, the proper legislative vehicle is the Police, Crime, Sentencing and Courts Bill, where the scheme can be properly and effectively extended and managed. I think that the noble Lord, Lord Cashman, will have gathered from the attitude of my noble friend Lady Williams of Trafford that he has a very willing pair of hands prepared to look at all aspects of this.

I remind noble Lords that Clause 18 of this Bill seeks to amend the pardons scheme to ensure that those who served in the Army and the Royal Marines before 1881 and were convicted of now-abolished service offences are posthumously pardoned. I suggest that these actions demonstrate the full commitment made by this Government to rectifying what I earlier called the shameful and wrongful treatment of those who have served. I therefore assure the noble Lord, Lord Cashman, and my noble friend Lord Lexden, that the Government are determined to redress this historic slight—“slight” seems an inadequate word; I think it is an historic injustice—against our brave and loyal servicepersons.

I hope that your Lordships have taken comfort from what I have said today: that far-reaching and consequential work is going on in this area. Naturally, the outcome of this work will never truly replace the hurt suffered by those affected. However, I hope that it will provide a degree of recompense and demonstrate that this House, this Government and this nation stand resolutely and proudly with both former and serving members of the Armed Forces who are drawn from across the LGBT+ community.

For these reasons, I hope that the noble Lord, Lord Coaker, will agree to withdraw his amendment.

[Lord Coaker (Lab)]

I thank the Minister for her response. Many people hearing it will be reassured not so much by the Government’s intentions and so on, but by what shone through: her honest answer and her clear determination to want to get something done. That is what is actually reassuring. I do not know whether I am supposed to say that as a Labour politician or noble Lord to a Conservative, but on this occasion there is, frankly, nothing that disunites any of us here. The noble Lords, Lord Lexden and Lord Cashman, have campaigned long and hard on these issues for much longer than I have. I hope they will also have been reassured by a government Minister who, instead of hiding behind weaselly words, talked about a sense of shame that our country should have—because it should. That reassurance gives me confidence that she will push this forward.

There are questions to be answered as to how far we will be able to get the Home Office to move, if it is the Home Office that needs to do so, and what legislation will eventually be passed. I do not really care which department is responsible for passing the legislation; what I am concerned about is that the legislation is passed. If it is the Home Office it is the Home Office, and if it is the Ministry of Defence it is the Ministry of Defence. This was a historical injustice. It is almost one of those things where you look back and cannot believe that it actually took place, but we are having to deal with many historical injustices at present. We cannot be judged on those but we can be judged on how we respond.

The only thing I would say to the Minister is that the restoration of the medals has not gone as quickly as it might have done and some of the other things are not going as quickly as they might. I accept there are huge difficulties. People will have been paid to leave the Army and all sorts of excuses will have been made, when the real reason was that they were pushed, bullied and intimidated out simply because of their sexuality. That is unacceptable. I do not know how many people there are; I read the figure of approximately 20,000 in the papers. But if it was 100 or 200—if it was 10,000, 15,000 or whatever—that does not alter the principle that we should be ashamed of what happened, but proud of the fact that we are now going to try and do something about it. I say to the Minister: can we please do it as quickly as possible, and not have this dragging out for years and years? We owe it to those who are still living and to the memory of those who are no longer with us. With that, I beg leave to withdraw the amendment.

Autonomous Weapons Systems

Baroness Goldie Excerpts

Monday 1st November 2021 Lords Chamber

[Lord Clement-Jones]

To ask Her Majesty’s Government what assessment they have made of the calls made at the August meeting of the Group of Governmental Experts on Lethal Autonomous Weapons Systems at the Convention on Certain Conventional Weapons for a legally-binding instrument, including both prohibitions and positive obligations, to regulate autonomous weapons systems.

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

My Lords, the UK is an active participant in United Nations discussions on lethal autonomous weapons systems, working with partners to build norms to ensure safe and responsible use of autonomy. The UK and our partners are unconvinced by the calls for a further binding instrument. International humanitarian law provides a robust principle-based framework for the regulation of weapons deployment and use. A focus on effects is most effective in dealing with complex systems in conflict.

[Lord Clement-Jones (LD)]

My Lords, the Minister’s reply is pretty disappointing. It puts the Government, despite statements in the integrated review, at odds with nearly 70 countries and thousands of scientists in their unwillingness to rule out lethal autonomous weapons. Will the Minister commit to rethinking government policy in terms of giving our representatives at the next meeting of the Convention on Certain Conventional Weapons on 2 December a mandate to go ahead with negotiations for a legally binding instrument, which, after all, has been called for by the UN Secretary-General?

[Baroness Goldie (Con)]

I am sorry that the noble Lord is disappointed, because I know the extent of his interest in this issue. I have tried to facilitate engagement with the department to enable him to better understand what the department is doing and why we take the views that we do. He will be aware that international consensus on a definition of laws has so far proved impossible. At this time, the UK believes that it is actually more important to understand the characteristics of systems with autonomy that would or would not enable them to be used in compliance with IHL, using this to set our potential norms of use and positive obligations.

[Lord West of Spithead (Lab)]

My Lords, nations are sleepwalking to disaster. Engineers are already making autonomous drones the size of my hand that have cameras that act completely autonomously. They can, for example, have facial recognition and carry a small shaped charge, and will kill a person that that facial recognition shows. Once you release them, you release them and off they go. The firms producing these are talking in terms of, “Yes, if we had several thousands of these, gosh how wonderful, because we could kill a great chunk of a city without damaging it at all and get rid of the people there.” I find this quite horrifying. Also, these things are AI: they learn; therefore, they will learn how to kill even more than they have been programmed to. This is extremely dangerous. Do the Government agree completely that, wherever there is a kill-chain that ends up with a dead human being, there should be a human somewhere in that kill-chain to make that decision, rather than a robot?

[Baroness Goldie (Con)]

All weapon systems, whether with autonomous functions or not, must fully comply with the principle-based international humanitarian law framework. A robust application of that framework, I would suggest, is the best way of ensuring the lawful and ethical use of force in all circumstances. That applies to all states that might be developing autonomy in their weapons systems.

[Lord Lancaster of Kimbolton (Con)]

Can my noble friend the Minister confirm that the UK has agreed not to develop autonomous weapons? Of course, we run the risk sometimes of confusing autonomous weapons with automated weapons, where there will be a human being in that decision-making cycle. While some are concerned about the UK’s definition of autonomous weapons, I think it is quite far-sighted because it will take into account future developments. Perhaps my noble friend could offer some clarity as to where in that chain, from targeting to operating that weapon, there will be human intervention.

[Baroness Goldie (Con)]

I thank my noble friend for acknowledging the difficulties that accompany definitions and prescriptive attempts to define. UK Armed Forces do not use systems that employ lethal force without context-appropriate human involvement. This is an important area; it is clearly an area of evolving policy and it is an area where we are absolutely clear that the best way forward is to continue our international engagement with the group of governmental experts.

[Lord Coaker (Lab)]

Artificial intelligence is clearly an increasing part of the modern way of warfare but, as we have just heard from the noble Lord, Lord Lancaster, and my noble friend Lord West, it brings with it enormous moral challenges. I think what the House wants to hear is for the Minister to say unequivocally, and as a matter of principle, that there will always be human oversight when it comes to the use of artificial intelligence; in particular, that human oversight is involved whenever there is any decision about the lethal use of force.

[Baroness Goldie (Con)]

It is not possible to transfer accountability to a machine. Human responsibility for the use of a system to achieve an effect cannot be removed, irrespective of the level of autonomy in that system or the use of enabling technologies such as AI.

[Baroness Smith of Newnham (LD)]

My Lords, I have been listening closely to the Minister and I am still not quite sure whether she has said that the Government will unequivocally state that no autonomous drone or other AI could take a life, and that every decision would have to have human engagement. Can she confirm that that is the case? I declare an interest as an officer of the APPG on Drones and Modern Conflict.

[Baroness Goldie (Con)]

I simply repeat to the noble Baroness what I said to my noble friend Lord Lancaster: that UK Armed Forces do not use systems that employ lethal force without context-appropriate human involvement.

[Lord Browne of Ladyton (Lab)]

My Lords, the National AI Strategy was published in September and promises were made that, before the end of the year,

“details of the approaches the Ministry of Defence will use when adopting and using AI”

will be published. However, on 22 October the AI strategy for NATO, which presumably we agreed to, was published and it emphasised the principles of lawfulness, responsibility and accountability. Does the Minister not agree that it is now time for the UK to publicly reaffirm our commitment to ethical AI, including international law and human rights, and to tell our public and the international community that our Government are ready, as our Governments always have been, to show global leadership on these issues, particularly on lethal autonomous weapons?

[Baroness Goldie (Con)]

The noble Lord is quite correct that the department has said that it will publish a defence AI strategy. When I was told it would be in the autumn, I pointed out that the autumn had pretty well come and gone. I am reassured that significant work has been done on the strategy and we can expect publication in early course. It will set out our vision to be the most effective, efficient, trusted and influential defence organisation of our size, and have principled components to it. I would not wish to pre-empt what the strategy will say, but I would hope that it will serve to answer many of the noble Lord’s questions.

[Lord Holmes of Richmond (Con)]

My Lords, I declare my technology interests as set out in the register. Does my noble friend agree that, whether in safety or security, the public good or economic growth, the UK has a unique opportunity for the development and deployment of ethical AI? Further, does she agree that we urgently need public debate and engagement if we are to achieve, not just in defence but across all potential applications, optimum outcomes?

[Baroness Goldie (Con)]

I say to my noble friend, building on what I have already indicated to the Chamber, that AI and autonomy clearly have the potential to transform all aspects of defence, from the back office to the front line. They are a strategic priority for defence and we take that evolution of policy seriously. As I indicated to the noble Lord, Lord Browne of Ladyton, more will be disclosed when we publish our defence strategy in early course.

[The Lord Speaker (Lord McFall of Alcluith)]

My Lords, all supplementary questions have been asked and we now move to the next Question.

Armed Forces Bill

Baroness Goldie Excerpts

Committee stage
Wednesday 27th October 2021 Grand Committee

Moved by

[Baroness Goldie]

1: Schedule 1, page 40, line 9, at end insert—
“(3A) After subsection (2) insert—“(2A) In the case of proceedings where the number of lay members would (but for this subsection) be three, a judge advocate may, in accordance with Court Martial rules, direct that the number of lay members is to be four.””Member’s explanatory statement
This amendment would allow a judge advocate to direct that a Court Martial should comprise four rather than three lay members. Court Martial rules will set out the circumstances in which such a direction may be made.

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

My Lords, it is a great pleasure to join you in Committee this afternoon to discuss amendments to the Armed Forces Bill. Without further delay, I shall speak to group 1, which comprises government Amendments 1, 2 and 4 as well as Amendment 3, tabled by the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Thomas of Cwmgiedd, dealing with the constitution of the court martial.

Clause 2 will fix the number of lay members on a court martial board at either three or six. The amendment will give judge advocates the power to direct that a fourth lay member be sworn in to what would normally be a three-member court martial board. The court martial rules will set out the circumstances in which such directions can be made. If a four-member board loses a member, it will be able to carry on with the remaining three members and reach a verdict.

We are making this amendment because the Covid pandemic showed the need for greater flexibility in the service courts as board members were taken ill or had to self-isolate, particularly following the “pingdemic” earlier this year. This measure is a practical arrangement that seeks to future-proof the service justice system against this type of situation, or any other unforeseen circumstances that may arise in future. It will introduce flexibility to the system and ensure that more trials are effective and that victims and witnesses are not subjected to delays in the system. If we do not make the amendment, when a panel member is lost from a three-member board, the only options open to the judge advocate would be either to adjourn the proceedings until that lay member is available again or to halt the trial altogether. This would introduce an unwelcome delay to the administration of justice, which would especially affect victims and witnesses, and in some cases could actually mean that a retrial was required.

The approach that we have taken is based on the current legislation for the court martial. When a trial is likely to last more than 10 days in the UK, or five days when overseas, there is an existing arrangement whereby the judge advocate is able to direct that there should be one or two more members than the current minimum number of lay members for a trial. Where a four member-board remains in place until the end of the trial, at least three members of a board of four must agree on a finding. If it is reduced to three members, at least two out of three must agree.

We have consulted the Judge Advocate-General on this amendment, and he supports it as a means to improve service justice system efficiency and provide flexibility to deal with unexpected events in future. I hope that your Lordships agree that this is a sensible measure that will allow the court martial to continue to operate in difficult times and prevent unnecessary delay for victims and witnesses of crime.

I turn Amendment 3, which would create a statutory requirement for the judge advocate to determine the appropriate sentence alone, having consulted the military lay members of the board. This would reverse the current position whereby the military members of the board and the judge advocate together discuss and vote on an appropriate sentence.

Interestingly, the change sought by noble Lords is not something that His Honour Shaun Lyons recommended in the service justice review. The Armed Forces community is different from the civilian community and it is important that we recognise that. It is obviously the one with which we are familiar, but it is a very different environment within the Armed Forces community.

The board votes on sentence because it is best placed to fully appreciate the context of the offending, the background of the offender and the deterrent effect of any sentence on the wider service. Moreover, some sentences, such as demotion or detention for corrective training, are specific to life in the services. The board has the expertise to judge whether they might be appropriate or effective.

It is worth emphasising that members of the military are governed by a more stringent set of rules and restrictions than those of us in civilian life. These rules are designed to maintain discipline and promote operational effectiveness so that they can get the job done. Many of these additional rules and restrictions to which service personnel are subject apply regardless of whether they are on or off duty. An in-depth understanding of these rules and the context in which they apply form a key part of reaching an appropriate sentence.

To give a simple example, a civilian turning up late for work in a supermarket does not have the same impact on operational effectiveness as the same situation with a marine engineer on a nuclear deterrent submarine that is about to leave port. Members of the Armed Forces will have a broader and deeper understanding of the implications of this type of behaviour.

I reassure noble Lords that the sentencing process is already subject to stringent legal controls and oversight. The court martial is required by law to have regard to the Sentencing Council’s sentencing guidelines, which must be followed by the civilian courts. It can depart from these guidelines only if this is justified by the service context.

The Judge Advocate-General also issues guidance and sentencing for the service courts. The judge advocate makes the decision on sentence with the board, so everyone involved is fully aware of the relevant legislation and guidelines. Judge advocates also regularly sit in the Crown Court and bring that experience and expertise to the deliberations of the court martial. Further judicial oversight is provided by the Court Martial Appeal Court, made up of judges who sit in the Criminal Division of the Court of Appeal.

The current system is both legally sound and ensures that sentences take account of the service context. This amendment would not add any significant legal safeguards to those that already exist. It would move the emphasis away from the court martial being a part of a service justice system in which discipline is maintained by and for the Armed Forces and service personnel. It also diminishes the importance of the service context in sentencing and places a barrier between the service person being sentenced and those with whom they serve.

I hope I have managed to explain fully why the Government have a reservation about this amendment. I therefore urge the noble Lord to withdraw it, and I beg to move the amendment standing in my name.

[Lord Thomas of Gresford (LD)]

My Lords, I thank the Minister for seeing me and my noble friend Lady Smith yesterday, when we had a full and fruitful discussion of these issues. I very much support the thrust of this Bill, in particular, bringing the service justice system up to date and having majority verdicts at the heart of it.

Sentencing is a difficult and technical business. I suspect that I am the only person in this Room who has actually seen the judge in a case in which I was appearing put on a black cap and sentence my client to death. That was in Hong Kong. He was not actually executed but it is a solemn moment. Sentencing in the old days used to follow the verdict but not anymore. In any serious case there is an adjournment for sentencing to enable the judge to consider the sentencing guidelines, the pre-sentence reports, the technicalities which he or she must say in the sentencing remarks, the statements of relatives and the public interest in the whole matter. A balancing exercise is carried out.

Importantly, the guidelines may give the recommended range of the sentence, but the judge has to consider the aggravating and mitigating features of the case, which will increase or decrease the recommended sentence in the sentencing guidelines. If I can give an illustration, because it is apposite for next Saturday when Wales play the All Blacks, in rugby, a referee, with his touch judges or assistant referees and the television match official, will discuss something that might have happened. They talk together and they have the advantage of a replay of an incident from various angles so that they can actually see what happened, which does not happen in a court. But it is the referee who takes the decision, not the people who assist him in his decision.

In the court martial system, it is the panel that takes the decision on the sentence with the judge participating and advising. It is only if the board are equally divided that the judge has the casting vote. To take another example, in the magistrates’ court it is the decision of the magistrates, as advised by the clerk, who may or may not be legally qualified. The judge advocate is not a clerk advising; he is central to a trial. He controls the proceedings. He gives directions to the board and rulings, including dismissing the charges altogether, as happened in the 3 Para case in Colchester in 2005. There is an anomaly as well: if the defendant is a civilian subject to service discipline and thereby liable to court martial, the judge advocate sentences alone.

Of course, the panel could and should advise on any particular military facet of the case, but from my experience it should not be assumed that the members of the panel have any direct front-line operational experience comparable to that of the defendant before them. They might have, but there are many units and many roles in which modern British forces are involved. Very frequently, the officers on a court martial do not have anything like the same experience as the defendant and the pressures he has been under. On the other hand, the judge, who sits regularly as judge advocate in a military court, has considerable experience of the operational conditions from the cases that come before him.

Under the current system, an officer or warrant officer is summoned to be a member of the board, probably with no or limited experience of courts martial, save for the president. He might never have been near a court or a court martial, but he becomes a judge with very considerable powers. He will be given the responsibility of determining sentence in a difficult case. That is a power that has never been given to civilian juries in the history of the common law. But it can be only history which retains this unique power for the board in courts martial. Perhaps it is a throwback to when there were no civilian professional judges, but, as I said in opening in my remarks, we have advanced so far. The civilian judge advocate is so important to the system.

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[Lord Tunnicliffe (Lab)]

My Lords, as we begin Committee on this important legislation, I stress to all sides that we must use this opportunity to improve the lives of, and protections and support for, personnel and their families through legislative change.

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 we support the principles behind the Bill and welcome the steps to create a legal duty to implement the principles of the covenant and the key elements of the Lyons review. But we all know that there are many, both in and outside the House, who believe that the Government could and should go further. Therefore, I repeat that our main priority will be to work with other parties to improve the legislation.

Our forces communities are themselves determined that the Bill should not be a missed opportunity, so the amendments tabled by Her Majesty’s Opposition and those we are supporting, we believe, are designed in good faith to reflect the cause of personnel, their families and the organisations which represent them.

The first group of amendments, which focuses on Clause 2 and Schedule 1, concerns the constitution of the court martial and implements recommendations from the Lyons review. These include fixing the size of court martial boards at three or six, and a move to qualified majority verdicts instead of the simple majority systems currently used.

The Bill’s Select Committee stated that the

“use of the simple majority verdict had been criticised by some, including … Jeff Blackett, and Liberty, who proposed that unanimous verdicts be sought in the first instance.”

The Government have subsequently tabled Amendments 1, 2 and 4, which they say enable the court martial to remain validly constituted if a three-member board loses a lay member—for instance, due to illness or the need to isolate. The Minister has said that she is making a small adjustment to future-proof the system of three-member boards to allow for the appointment of a four-member board for longer cases.

Why are these amendments suddenly needed? How often does the Minister think that a four-member board will be appointed? What consultation process has there been for this change? Is there a large enough pool of board members to support this change? When she says that four-person boards are for longer cases, what type of cases does she mean? Will it be just about time, or some other characteristics of the case?

It was also helpful to hear the argument of the noble Lord, Lord Thomas of Gresford, behind Amendment 3; I look forward to hearing the Minister’s reply to these points. With that, and with a careful reading of Hansard, we will be considering our position on this amendment.

[Baroness Goldie (Con)]

First, I thank your Lordships for your contributions. I will start by responding to the noble Lord, Lord Tunnicliffe, who I think was principally concerned with the government amendments to which I spoke. Regarding the decision to introduce a flexibility to allow a three-member board to become a four-member board in order to keep operating, I cannot give him a list of statistics, but I can tell him that Covid brought into very sharp relief the potential fragility of the system if people sadly become infected with Covid or are required to isolate. That made it clear that we need to introduce some change to accommodate these extraordinary circumstances, which we may continue to encounter. None of us is clear when life as we once remember it may return, so I say to the noble Lord, Lord Tunnicliffe, that we regard this as a sensible introduction of a flexible measure to ensure, importantly, that justice continues to be done for victims and that they are not in the unenviable position of a case having to be dropped because the court martial is not properly constituted.

The noble Lord, Lord Tunnicliffe, inquires about what type of cases it is about and how often we expect a full-member board to sit. I suggest that the type of case is probably a matter for the court martial rules to determine. One would imagine that, in looking at the composition and constitution of a court martial, regard would be had to the type of offence being tried, the number of witnesses available and that an appropriate judgment would be made on that basis, but the court martial rules would be more specific about that aspect.

I turn to the amendment in the name of the noble Lord, Lord Thomas of Gresford, supported by the noble and learned Lord, Lord Thomas of Cwmgiedd—I hope he finds my pronunciation semi-acceptable; I was tutored by the noble Lord, Lord Thomas of Gresford, on how to deal with it. I think the points made are important. I detected a fundamental difference of opinion between me as a government Minister within the MoD and the noble and learned Lord and the noble Lord, Lord Thomas of Gresford, about the philosophical or essential character of what we are dealing with in the service justice system. I thought the noble Lord, Lord Lancaster, eloquently touched on that.

We have to remember that life for a service community and all those within it is very different from life for those of us in a civilian community. The noble Lord, Lord Thomas of Gresford, gave us an interesting analogy of the forthcoming rugby match between the All Blacks and Wales. The comparison that he attempted to draw was that the referee may consult the touch judges as to what has actually happened but the referee will ultimately make the decision. In response, I would say that the referee and the touch judges are not living in a close and mutually supportive community such as the Armed Forces community, where not only are they all living in close proximity to one another but in service they are mutually dependent on each other. The rugby players, the referee and the other officials are not dependent on each other for either disciplinary or operational effectiveness. There is a temptation to make that comparison but I do not find it completely analogous to what we are discussing within the Armed Forces.

The noble and learned Lord, Lord Thomas of Cwmgiedd, said that sentencing is complex, and I do not think anyone would dispute that. Training is needed, and in court martial appeals you have the expertise of the judges. I would respond by saying that we do have expertise; the judge advocate has expertise, and sentencing guidance is available to all on the panel. As I indicated in my preliminary remarks when addressing Amendment 3, there is a great body of expertise and information available. Where we differ is on a fundamental point, a point that noble Lord, Lord Lancaster, made well when he said that there has to be an understanding within the service community about how a punishment or a penalty is to be appropriate to what has happened. That is in the wider context of what the offence, transgression or omission actually meant to the broader community. As I pointed out in my speech, there is a world of difference between a supermarket worker turning up late and a marine engineer being late for a nuclear submarine that is just about to leave port.

The concern was raised by the noble Lord, Lord Thomas of Gresford, that in a civilian court you can adjourn for sentencing. The Judge Advocate General can also adjourn the court martial to consider sentencing if the panel needs time to get further information on the defendant, and pre-sentencing reports are used in the court martial system.

I have endeavoured to address the points raised. I have a note here saying that apparently the noble Lord, Lord Tunnicliffe, asked who we had consulted in the court martial. We consulted the Judge Advocate General, the Service Prosecuting Authority and the single services.

I submit that the government amendments proceed from a sensible and widely understood base and that Amendment 3, in the names of the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Thomas of Cwmgiedd, is well-intended but inappropriate for incorporation within the service justice system.

--- Later in debate ---

[Baroness Bennett of Manor Castle (GP)]

My Lords, I beg the Committee’s indulgence. This is my first time back in this Room, and I am afraid I got my body language wrong. I was hoping to come in before the noble Lord, Lord Coaker. Perhaps I may briefly speak in support of Amendment 5. The noble Lord, Lord Thomas, and the noble and learned Lord, Lord Thomas, as you would expect from legal people, were very carefully balanced, but I shall speak unashamedly in favour of the victims. The noble Lord, Lord Coaker, referred to the Times report about under-18s to which I was going to refer. I shall refer to another Times report from April, when 4,000 servicewomen and veterans came forward to speak about their concerns.

We know that there is a problem with prosecution of the crimes of rape, sexual assault and domestic violence in all areas, but it is obvious where we want to invest our effort. If we do so in the civilian courts, that is where the real speciality and ability will lie. I and others have framed this as an issue of violence against women and girls, but it is also worth thinking about male victims of domestic violence, rape and sexual assault, and how difficult it may be for them in that context.

This will be my only intervention in Committee. Your Lordships’ House is not taking recess for the COP 26 climate talks, although we recently took recess for the party conferences, which happen twice a year. I apologise that I will not be able to take a full part, but I hope to come back on Report.

Finally, there was a great deal of discussion of this at Second Reading, and I was expecting more discussion of Amendment 5 today, because this is something that we really need to see change and progress on.

[Baroness Goldie (Con)]

First, I want to thank your Lordships for what has been a profound and stimulating discussion. I am conscious that much of the debate has centred on fairly technical legal issues, not least in particular reference to the criminal legal system, both for civilian and service justice systems. I shall do my best to address the issues raised.

By way of preface, in response to points notably made by the noble Lord, Lord Coaker, and the noble Lord, Lord Thomas of Gresford, and echoed by the noble and learned Lord, Lord Thomas of Cwmgiedd, we all want a service justice system that is fit for purpose. I think we are all absolutely united in seeking that objective, and that is exactly what the Bill aims to achieve. That offers me the opportunity to say to your Lordships that much had to move at pace, involving a considerable volume of material. I apologise for that, as I know that you have all been deluged, first with the publication of the Henriques report and then the tabling of government amendments to create the defence serious crime unit.

While I think that these are regarded as very positive developments, I understand that it has put pressure on everybody to try properly to assimilate and understand the report and amendments. I took the view that the amendments did not make a lot of sense without the report, and I had to navigate my way through a fairly tangled jungle of clearances to make sure that we could get both things out into the public domain. I felt that it was important that we did that; it seemed to me that the amendments the Government were then able to table to the Bill in respect of the defence serious crime unit provided reassurance and perhaps answered some of the questions raised today. I think that gives a clear signal of intent about the desire to ensure, as a number of noble Lords have observed this afternoon, that the criminal justice system is absolutely fit for purpose and as good as it can be.

I will now address the amendments in this group. I shall do that beginning with Amendment 5 and then move on to Amendment 6—and then I shall speak to the intention expressed by the noble and gallant Lord, Lord Craig of Radley, to oppose Clause 7. Finally, I shall speak to Amendment 7 in the name of the noble and learned Lord, Lord Morris of Aberavon.

The noble Lord, Lord Coaker, said that there has to be confidence in the justice system, and I totally agree with that. He rightly referred to recent statistics, which are deeply troubling—and I make no pretence about that. As he probably knows, there has been ongoing work in the MoD over the last decade to try to address cultures and behaviour, to provide people who have been treated wrongly—whether it is the victims of unacceptable behaviour or of a criminal offence—with the confidence to come forward, and to try to reassure those within our Armed Forces, not least our women, that this is a good and safe place to be. That has been a Herculean struggle; it has been a huge challenge, and I am not going to pretend otherwise. What I can say is that there has been systematic progress of very good work.

The noble Lord, Lord Coaker, referred to the Commons Select Committee report, in which the MoD very readily engaged—and the Secretary of State took the courageous and absolutely correct decision to allow serving women to appear as witnesses before the committee. I thought he was absolutely right to do that, as it is the only way in which we can get evidence out into the open. Very troubling evidence was heard, and some of it was utterly appalling. What I drew comfort from was that, to the end, a very high percentage of the women who gave evidence said that they would recommend a career in the Armed Forces to other women. I felt encouraged by that. There was recognition that, while unacceptable practices and attitudes have existed in the past, there is a discernible recognition that the direction has changed.

In relation to the stats to which the noble Lord, Lord Coaker, referred, they are troubling, but they do tell us that people are now coming forward. One problem that we had was that people would not come forward; they did not have the confidence to do that—and that to me strikes at the very heart of the probity and integrity of, and the confidence that people should rightly have in, the system.

We have been and are reforming the service complaints system. A huge amount of work has been done among the single services to that end.

[Baroness Brinton (LD) [V]]

I seem to have lost the sound.

--- Later in debate ---

[Baroness Goldie (Con)]

I shall leave that to those who are much more technically gifted than I am to resolve.

I say to the Committee that I absolutely hear the concerns expressed and am not giving some cosmetic response to them. These concerns are being addressed, and in many respects have been addressed. I hope that we are going to see that a much healthier climate exists within the Armed Forces.

I turn specifically to Amendment 5, which seeks to ensure that the most serious crimes as listed in the amendment are tried in the civilian courts when committed by a service person in the UK, unless, by reason of specific naval or military complexity involving the service, the Attorney-General has specifically consented for such crimes to be tried at court martial. I realise that there is much interest in the Government’s decision not to follow recommendation 1 in the Service Justice System Review. While we accept the need to improve the decision-making processes 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.

By way of background, I would like to be clear that the primary reason the service justice system was established was, as we discussed earlier today, to support operational effectiveness and maintain the service discipline of our Armed Forces. The recently published review by Sir Richard Henriques and the service justice system review by His Honour Shaun Lyons were unanimous in accepting that premise; they strongly supported the continued existence of the service justice system. The noble and learned Lord, Lord Thomas of Cwmgiedd, referred to the importance of public confidence in that system. I entirely agree: it is vital that the public and victims, and service personnel, have confidence that this system can act adequately in respect of what it is asked to do.

Sir Richard Henriques stated in his review, published just last week, that he agreed with the Government’s decision to retain unqualified concurrent jurisdiction for murder, manslaughter and rape. Sir Richard, a retired High Court judge, found the service justice system to be fair, robust and capable of dealing with all offending. This endorsement of capability echoes the conclusion of the process audit conducted as part of the Lyons review, which previously found that the service police have the necessary training, skills and experience to investigate any crime. The service police, prosecutors and judiciary are trained, skilled and experienced, while independent prosecutors can be trusted to make appropriate decisions on jurisdiction.

I think it was the noble Lord, Lord Thomas of Gresford, who raised the issue of statistics on conviction rates. It is not possible to draw a meaningful statistical or data comparison between the service justice system and the civilian system, because the small database in the service justice system means that variances have a disproportionate effect, which I think everyone can understand. That can lead, frankly, to false conclusions.

We are confident that the service justice system provides an effective and fair system of justice for our Armed Forces. What we recognise, as in the very point raised by the noble and learned Lord, Lord Thomas of Cwmgiedd, is the public confidence issue and that it can be maintained only if the service justice system not only has but can be shown to have the capability to deal with all offending fairly, efficiently and in a manner which respects and upholds the needs of victims. That is why we continue to implement the recommendations of the Service Justice System Review, some of which are measures in the Bill. This will ensure that the service justice system is more effective and efficient and provides a better service to those who use it.

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[Lord Morris of Aberavon (Lab)]

On the point about circuit judges being allowed to try these very serious offences, will they be of a similar calibre to those judges who are licensed to try rape and murder cases? Maybe the Minister will not be able to deal with this now, but perhaps she could later.

[Baroness Goldie (Con)]

The noble and learned Lord makes a good point. Obviously at the heart of this is making the service justice system as good as it can be. Clearly I cannot give a specific undertaking as to what criteria would be adopted in making such a selection, but I hear what he says and it will be given careful consideration. I cannot be more specific about that just now.

I was saying that I hope the noble and learned Lord is reassured that we have considered this matter in detail, having regard, as we have been discussing this afternoon, to the military and operational environment in which our armed services function. In these circumstances, I hope he will not press the amendment.

I omitted to answer a specific question posed by the noble and learned Lord about the most junior member of the court martial voting first. I am informed that the most junior member of the court martial does vote first.

[Lord Thomas of Cwmgiedd (CB)]

I want to ask about two matters. First, I raised the point about judicial review but I also raised the serious issue of concurrent jurisdiction relating to murder committed overseas, and I gave the references. I would be grateful if the Minister could reply. I would not expect her to do that now but I would be grateful if she could write and deal with these two rather important points.

[Baroness Goldie (Con)]

I certainly undertake to look at Hansard and endeavour to frame a response to the noble and learned Lord.

[Lord Thomas of Gresford (LD)]

I am grateful to the Minister for the very careful and thorough way she addressed these amendments. I feel that she slightly misrepresents the nature of Amendment 5. I am not suggesting that in every case the Attorney-General be woken up by the telephone in the middle of the night and come to a decision in her pyjamas. That is not quite what I have in mind, which is that serious offences such as murder, manslaughter and domestic violence should normally be tried in the civil court. There is no question of protocols: that is the normal way you go about it. But in the event that there is some very specific naval or military complexity involved—I had in mind, for example, the working of a gun in a tank that causes another person to be killed on Salisbury Plain—one could imagine that there might be a case for the authorities to say, “This has a bit of a military tang to it. Therefore, we will see whether the Attorney-General will agree, in this very unusual case, that a trial by court martial would be more appropriate, because the panel might be more used to that sort of thing.”

We are talking about murder, rape, manslaughter, domestic violence, and child abuse by serving soldiers or servicepeople in the United Kingdom. It is important that that should be realised. Normally they would be tried in the Crown Court by a jury in the ordinary way.

The noble Lord, Lord Coaker, the noble Baroness, Lady Bennett, and the noble and learned Lord, Lord Thomas of Cwmgiedd, raised the issue of confidence. That is what this is about: public confidence in the system of service courts. That is what is needed. I repeat what the noble Lord, Lord Coaker, said: people will not come forward. If you have a situation where servicepeople who complain of rape find that only 16% of the complaints result in convictions, that means that 84% of victims will have gone to the court, given their evidence and found that the defendant has been found not guilty of the offence against them. Does that give confidence, not just to the victim but to the family? They will leave the service; this is the sort of situation in which a person says, “I’m not going to stand for this. I’ve gone before a court martial; they don’t believe me.”

This is an extensive problem in the United States. Four or five years ago I gave evidence to a congressional committee in Washington on what the British system was because they were considering sexual assaults in the military over there. I was in the unlikely company of Senator Gillibrand of New York, a Democrat, and Senator Ted Cruz of Texas, who is known to have certain right-wing views. They were all on the same side. Nothing happened. President Biden has within the first six months of his Administration set up a commission to deal with sexual offences in the military. This is a very important point and it is very necessary that we deal with it properly.

The noble and learned Lord, Lord Thomas of Cwmgiedd, pointed out to the judicial review that took place in the Blackman case that our protocols for overseas jurisdiction have not worked. His proposal that parliamentary approval of any protocol should underpin that protocol is entirely correct, sensible, right and common sense, because it would prevent the bringing of judicial review against whoever is in charge—the Director of Service Prosecutions or the director of prosecutions in another jurisdiction—as the protocol would have parliamentary approval.

I support the noble and learned Lord in that. The fact that it does not exist at the moment is neither here nor there; what we are concerned about is having something that does not give rise to parades and demonstrations in Parliament Square, as happened in the Blackman case. That is an important point, and I am sure that the noble and learned Lord, Lord Thomas of Cwmgiedd, will pursue it.

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We do not have this general commitment, as individuals and administrators, let alone as it is in this Bill, which is open enough to give the commitment that the covenant promised to give. I plead with the Minister to ensure that, whatever comes with this, we allow it to be modified as we all learn more about how to be effective, especially in the mental welfare of our veterans.

[Baroness Goldie (Con)]

Once again, I thank noble Lords for a stimulating and interesting debate. I appreciate the contributions, to which I have listened with care.

To set a context for my response to the amendments, I would just observe that I clearly and firmly feel that the Bill, by including the reference to the covenant and imputing to it a statutory effect, is taking us a very significant step forward. I understand the frustration and impatience on the part of some that the pace is not moving more quickly and that the reach of the definition in Clause 8 is not being broadened. However, in that context, I shall try to address the points that have been raised, all of them very worthy; in no way would I wish to dismiss them.

The amendments tabled by the noble Lord, Lord Coaker, and the noble Baroness, Lady Brinton, would widen the scope of the new covenant duty to the areas of employment, pensions, compensation, social care, criminal justice and immigration. In considering how to take forward our commitment to further strengthen the covenant in law, which we have discharged in the Bill, we looked first at what the covenant has already achieved. The considerable number of successful initiatives across many different policy areas that we have seen through the Armed Forces covenant to date shows how the careful use of legislation could provide a firm basis and the flexibility for a much wider range of work to develop.

We bore this model in mind in the development of the new covenant duty to ensure it can provide a secure framework that allows scope for innovation, change and future growth. I agree with the noble Lord, Lord Coaker, that this is about our service personnel, our veterans and their families. In approaching this, we recognised that delivery of the functions relative to healthcare, education and housing in England, Scotland, Wales and Northern Ireland would benefit from what I might describe as a more uniform awareness of the covenant and perhaps a more universal application of the principles that underpin it.

This has been difficult to encompass, as I think your Lordships will understand, for obvious reasons. The first thing I want to do is to give thanks to the devolved Administrations. They have been co-operative and helpful. I simply explain to your Lordships that even progressing the statutory import with the three areas of healthcare, education and housing has not been straightforward. It has been complex. Your Lordships will understand why. We have a range of delivery mechanisms across the United Kingdom. We have different responsible elements. We have different responsible Governments. We are trying to increase awareness across the UK and achieve a more universal recognition of the principles of the covenant in delivering services.

The question was asked: why healthcare, education and housing? The new duty is designed initially to focus on these three core functions. That not only reflects those already in statute—where there has to be obligation —but also addresses the most commonly raised issues affecting the day-to-day lives of our Armed Forces community. I think it was the noble Lord, Lord Coaker, who asked how we know that. It is a perfectly legitimate question. There has not been a specific consultation on that but, as the noble Lord will be aware, the covenant now embraces the MoD and the Office for Veterans’ Affairs. There are our partnerships and discussions with charitable entities, not least the Royal British Legion. We also discuss regularly with families, federations, local government and devolved Administrations what the needs imposed by the covenant are. I can say to the noble Lord that there has been significant experience of dealing with issues coming through to the covenant team in the MoD and their subsequent discussions with the other parties to which I have referred.

The three entities, healthcare, housing and education, seemed to be the most prominent features in that work. That is why we have focused on them. Importantly, the Bill provides for further consideration of additional areas of concern and it grants the Government powers to make any changes as a consequence. In this way, the covenant duty can effectively adapt to the needs of the Armed Forces community in the future. Future areas of concern will be addressed as and when they arise through the powers in the Bill that allow the Government to widen the scope of the covenant duty, if needed, through secondary legislation. We are working with key stakeholders to establish an open and transparent process by which the scope of the legislation can successfully adapt to address the changing needs of the Armed Forces community.

We have to consider the practicalities of extending the covenant duty to further policy areas. My noble friend Lord Lancaster alluded to this. Indeed, to achieve the extension sought by this amendment would require the amendment to specify which functions would be relevant, in the way that we have defined a relevant health, housing and education function. The list of specified persons and bodies subject to the duty would also need to be amended to include the bodies which exercise the relevant functions envisaged by the amendment. That would require extensive consultation with stakeholders and the devolved Administrations to identify the appropriate bodies and functions to bring into scope.

I suggest that a perhaps wiser and better way forward at the moment lies in first working through and resolving any practical implications arising as the new covenant duty is implemented. That will give us a good indication of where amendments may be required to better meet the changing needs of our Armed Forces community in future.

The noble Baroness, Lady Brinton, and the noble Viscount, Lord Brookeborough, also raised the important issue of mental health, and were absolutely right to do so. I was asked for some detail. We are committed to enhancing health and well-being for veterans; I highlight the recent launch of Op Courage, which simplifies access to NHS England veteran services. That is among excellent work being done within the serving Armed Forces in relation to mental health, where there is far swifter and better recognition of persons who may need support and a much swifter reference point to direct those individuals to where they can get that support.

I return to the amendment. By retaining the flexible nature of the legislation, the Government hope to establish a firm legal foundation for the covenant while avoiding any unnecessary administrative burden. The new duty builds on the existing widespread commitment to the covenant, thereby contributing to a further strengthening of covenant delivery across the UK. I think that it was the noble Lord, Lord Coaker, who specifically asked about the Delegated Powers and Regulatory Reform Committee and its recommendations. I am seriously considering its report and will undertake to update the Committee on Report.

I have attempted to explain in relation to Amendments 8, 10 and 13 why the Government have a difficulty. I hope that my remarks have been received sympathetically and have not been regarded as obstructive, but I invite the noble Lord and the noble Baroness not to press their amendments.

Amendment 64 in the name of the noble Baroness, Lady Brinton, supported by the noble Baroness, Lady Smith, refers to civilians subject to service discipline; these are civilians who come within the jurisdiction of the service justice system and include groups such as families of service personnel living on bases overseas, Crown servants working with the Armed Forces overseas, or civilians on board military ships or aircraft. I understand that the amendment was actually intended to apply to locally employed staff in Afghanistan but I am required to address the amendment as scripted, although I will come to Afghanistan more specifically.

The Armed Forces covenant was designed with the Armed Forces past and present, and the families who support them, at its heart. That was in recognition of the unique obligations of and sacrifices that they make on behalf of the country in serving us. In practical terms, the covenant is focused on ensuring that the Armed Forces community gets a fair deal when accessing public goods and services in comparison with their civilian counterparts, with the aim of mitigating any disadvantage that they may face as a result of service life, and to allow special provision to be considered for those who have sacrificed the most.

The covenant is therefore directed primarily within the UK, and I do not think that it would be helpful or appropriate to include in its scope locally employed staff working for the United Kingdom Government, whether in Afghanistan or any other country. Those individuals are employed as civilians under their own bespoke terms and conditions of service within their own countries. However, importantly, the Government will take further action where necessary. In Afghanistan, we completed Operation Pitting, the biggest and fastest emergency evacuation in recent history, bringing around 15,000 people to safety in the UK and helping 36 other countries airlift their own nationals.

The whole UK Government are engaged, via Operation Warm Welcome, in ensuring that those Afghan nationals relocated to the UK are provided with the best possible support and start to life in the UK that we can give them. That comes from a variety of sources; it comes from across government departments and may involve the devolved Administrations or come from other public agencies. I say to the noble Baroness, Lady Smith, that it includes assisting these Afghan nationals into work. I am informed that some ARAP people are now working in the UK as we speak.

We have made it clear that our commitment to Afghanistan and those who supported our mission there continues. Our message to those people to whom we have made a commitment is clear: that commitment to you is enduring. However, the covenant is not the appropriate mechanism to accomplish that support and help.

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[Lord Craig of Radley (CB)]

My Lords, before the Minister sits down, I refer her back to her earlier comments about the addition of functions, and her feeling that this would be an overload on the functioning of the covenant system. Perhaps these functions could still go into the Bill but be brought into force through statutory instrument at various stages in future. It seems to me that the opportunity to get them into the Bill is one that we should not miss.

[Baroness Goldie (Con)]

As the noble and gallant Lord knows, I have the greatest respect for him. I have no doubt whatever about his commitment to and interest in these issues. I have tried to indicate that even to get to where we have reached has been challenging and difficult. Notwithstanding all that, it has got us to a good place. It is far better to put our toe in the water, make progress in these three significant areas—and they are significant—and assess how that is working in practice. Then we can make an informed decision about whether expansion is needed and, if so, where. Is it proving a source of concern to our Armed Forces personnel and veterans? That further work will be important to establish, first, whether a need is there and, secondly, how to meet it. As I said earlier to him, that requires extensive consultation with a large variety of bodies, not least the devolved Administrations.

I should not want to give people boundless hope that we could deliver things that, although in an Act of Parliament, could prove problematic to deliver. That is my major concern. We should manage expectation. Quite honestly, we should allow this to unfold and see how it runs. We are under an obligation in the covenant to report every year on how matters are progressing, and we have the facility in the Bill to take forward expansion if that need is identified. I suggest to the noble and gallant Lord that this is a more prudent and sensible way in which to proceed.

[Viscount Brookeborough (CB)]

Before the Minister sits down, I thank her for everything she said and for being so open-minded. However, she said that a veteran—or a veteran’s family—who goes to get help and is refused will then go to an ombudsman or through a complaints system. I think she is a bit optimistic, because veterans who have given their hearts to the country in Afghanistan and who have fought for their lives should not have to fight for this. I would rather that she had suggested a way of monitoring from the other end the refusals of help and the circumstances. My experience is that, even without mental welfare problems, veterans have given their lives to this country fighting, and they are reluctant to go public or to drag others in. We are talking about initiatives from up the chain of authority, which is monitoring and picking them up, rather than relying on our veterans to fight once again.

[Baroness Goldie (Con)]

I can understand why the noble Viscount articulates that point. If we draw a distinction between active service personnel and veterans, I imagine that our active personnel in service at the moment are more likely to be interested in health and education. I think that our veterans are more likely to be interested in health and housing, for obvious reasons.

One of the difficulties with the noble Viscount’s suggestion is that we do not know, and we have no reason to know, whether anyone is encountering problems. To take the example from the noble Baroness, Lady Brinton, we do not know whether a parent has a problem with getting her child adequately placed in a suitable facility until that person comes and tells us that there is a problem. We are trying to ensure that they have a much simpler route to finding the solution they need because of what the Bill is doing. That is why the obligation is being placed on the delivery end. The individuals seeking the particular facility or the help actually want to go to the provider and say, “This is what I need, please can I have it?”

In the disappointing eventuality that help is not forthcoming, if that person is in service then there will certainly be help available within the armed services to support them. If the person is a veteran, there is a plentitude of help from charitable agencies, some of the Armed Forces charities and other support charities. If there were a delay or obstruction in the necessary service being received by the person who needs it, I hope that that would be very quickly picked up so that the person knows they could go to the provider and say, “You’re failing me. You’re falling down on the job. That is not good enough.” It is very difficult for anyone else to know whether that person, first, wants a service, and, secondly, has been disappointed or obstructed in trying to get it.

[Lord Coaker (Lab)]

I thank the Minister for a very constructive reply. While she was responding, I looked again at the power to add bodies and functions in the Bill. To take up the point from the noble Lord, Lord Lancaster, and some of what the Minister was saying, it seemed that she was not saying that there was never going to be a need for bodies that need to “have due regard to” to be added to the covenant, but the issue is the practicality of it. From looking at the Bill, I wonder whether an appropriate amendment could come forward on Report to put a bit of meat on the bones, rather than the Bill just saying that there is a power to add bodies and functions. If I have not mistaken what the noble Lord said, maybe there could be some kind of timeframe and greater certainty, but perhaps we will be able to look at that in response to what the Minister said and the suggestion that he made. I thought that was very helpful.

I thank the noble Viscount, Lord Brookeborough, for his contribution and the point he made about what “due regard” means. I hope we do not have a judicial review about that. Again, I am not a lawyer, but I know what “due regard” means. I am sure you can argue it, but I think we all know what it is supposed to mean. I will leave that to the lawyers.

I also apologise to the noble Baronesses, Lady Brinton and Lady Smith, and to the noble Lord, Lord Lancaster. As many of us will have done, I read lots of documents and Bills related to this over the weekend. I did not properly read Amendment 64, which raises a really important issue that the Minister, to be fair, sought to answer. I will read this out, because people read our affairs and they will not know what we are talking about when they read it; I apologise, but it is important. The noble Baronesses suggest that the covenant

“should be extended to cover civilians subject to service discipline who have been employed by the UK Armed Forces while on deployment.”

I think a lot of people would think that was probably already the case. The Minister, to be fair, said that of course the Government have due regard to people who had done that, because they have a duty of care, responsibility and so on, but the amendment seeks to put that into primary legislation. It is certainly something worthy of further thought and consideration. I appreciate that the Minister sought to answer this, but it is a particularly important amendment. I think that in bringing it forward, the noble Baronesses, Lady Brinton and Lady Smith, have done the Committee a service. That is what I have to say about the attention to detail.

With those brief comments on what I thought was, again, a helpful debate, I beg leave to withdraw my amendment.

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[Baroness Smith of Newnham (LD)]

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

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


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

[Baroness Goldie (Con)]

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

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

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

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

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

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

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

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

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

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

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

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

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

[Lord Mackay of Clashfern (Con)]

My Lords, I never mentioned negligence. I am not suggesting for a minute that there was necessarily any negligence. The Armed Forces put in requirements for the people who were taking part for protection against what they thought might come. That was a perfectly reasonable thing to do. Some of them took the treatment. The question was: what was the result of that? That was a question for the Secretary of State. It was him who had to look into that; it was a national question. It had nothing whatever to do with negligence or some other basis of claim. The claim was because the Government had approved a covenant, which I said should protect them in respect of their work in the Armed Forces and after they had left. That is what this was—nothing more, nothing less.

I am sorry to interrupt, but I have to make it clear that there is no suggestion in my argument that there was any negligence or any sort of enforcement available at the time. This is a new remedy, and it should be given.

[Baroness Goldie (Con)]

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

[Baroness Smith of Newnham (LD)]

My Lords, the noble Baroness’s thinking has not necessary moved on very much from Second Reading, when she said

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

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

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

[Baroness Goldie (Con)]

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

[Lord Coaker (Lab)]

I thank the Minister for her reply. She is in a bit of trouble on this one. Logically, I do not think that some of what she said holds together. In her answer to the noble and learned Lord, Lord Mackay, she clearly talked about negligence, people being sued and things like that, whereas what the noble and learned Lord talked about, and the noble and gallant Lord, Lord Craig, talked about very movingly from his own experience, is that we are seeking to require central government to have due regard to the covenant. Placing that obligation on central government in the same way as we are placing it on local authorities and other bodies is consistent with the principle that we are seeking to drop adopt through this legislation. This is not about moving into an area where a Government are negligent.

All I would say to the Minister is that we will have to come back to this on Report. I wonder whether she could reflect again on the discussions that have taken place in Committee to see whether there might be a way forward for us all. With that, I seek the leave of the Committee to withdraw the amendment.

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[Baroness Smith of Newnham (LD)]

I have nothing to add.

[Baroness Goldie (Con)]

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

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

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

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

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

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

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Moved by

[Baroness Goldie]

16: Clause 9, page 19, line 6, leave out paragraph (a) and insert—
“(a) omit “(a “full-time service commitment”)”;”Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision made by Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

[Baroness Goldie (Con)]

My Lords, group six comprises Amendments 16 to 37 inclusive. In total, these relate to a minor, technical amendment to Clause 9, which introduces important changes to Section 24 of the Reserve Forces Act 1996 to enable our reserve personnel to do more and for defence to offer them more. The changes we are making to Section 24 will in future enable reservists to undertake periods of full-time and part-time service, or a combination of both under one continuous commitment.

On reflection, we feel it more appropriate to refer to our new continuous service commitment using neutral terms, such as “a Section 24 commitment”. This will avoid any suggestion that reservists are in continuous service only in certain circumstances. Reservists are serving members of the Armed Forces during their entire term of service, not just when they are on duty or in training. It is a purely technical amendment and I can confirm that, importantly, it will have no impact on how the new measures we are introducing under Clause 9 will operate. It will allow our Reserve personnel to do more and enable the Ministry of Defence to make better use of their knowledge, skills and experience, but avoid any possible confusion as to nomenclature and meaning. I beg to move.

[Lord Tunnicliffe (Lab)]

I accept the Minister’s assurance that this is a wholly technical amendment. If my assistants find that not to be true, I shall return to it ferociously on Report. But assuming that is the case, I am content with the amendment. I make the point that the next group goes into a fundamental area, and I would greatly object to any attempt to move into that group tonight.

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Moved by

[Baroness Goldie]

17: Clause 9, page 19, line 18, leave out “continuous service commitment” and insert “commitment under this section”
Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision made by Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

--- Later in debate ---

Moved by

[Baroness Goldie]

25: Schedule 2, page 42, line 9, leave out “continuous service” and insert “section 24”
Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision in Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

France: AUKUS

Baroness Goldie Excerpts

Tuesday 19th October 2021 Lords Chamber

[Lord West of Spithead]

To ask Her Majesty’s Government what discussions they have had with the government of France since the announcement of the AUKUS agreement.

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

My Lords, as neighbours, allies and partners, we have continued to engage with the French Government across a wide range of business since the AUKUS announcement.

[Lord West of Spithead (Lab)]

My Lords, I thank the Minister for her Answer—what there was of it. This AUKUS treaty makes a lot of sense for the Australians. We often forget the huge sea ranges in that area. For example, it is 9,000 miles from the submarine building yards in south Australia to the Chinese yards; that is the same as the distance from London to Singapore. Nuclear submarines, not conventional ones, are needed to cover those ranges, so the Australians have made the right decision. Indeed, the fact that our three countries are working together confronts the Chinese on the grey-zone work they are doing against our agreed global values; that is a good thing.

However, it rather seems that we have left the French out on the side. They are very angry. At the NATO discussions this week, they were throwing their toys out of their cot. I would like to think that we have been talking closely with them. What I really want to ask the Minister is: are we still as close as we were in terms of Royal Navy-French navy liaison and the work that both navies do together, both in NATO and outside it?

[Baroness Goldie (Con)]

I seek to assure the noble Lord that we recognise the significance of the French Government’s reaction to AUKUS and the strength of the feeling it has generated. We have a long-standing relationship with France in global security and defence; that is founded on firm lines, not least the Lancaster House agreements. We are both committed to the same things, whether that is NATO, Euro-Atlantic security or broader global security in the Indo-Pacific and south-east Asia. A lot binds us together. We value France’s presence as a defence partner and look forward to continuing to work with it closely.

[Baroness Fall (Con)]

I congratulate the Government on what is a very innovative new alliance, even if it was executed with maybe slightly less diplomacy for our near neighbours than it might have been. This new alliance is supportive of Australia. It reinforces the idea that China does not have free rein in the Indo-Pacific, and it reinforces the work of the Quad. With the Quad in mind, does the Minister think there will be new members of AUKUS, such as Japan?

[Baroness Goldie (Con)]

I thank my noble friend for affirming the strategic importance of AUKUS, echoing what the noble Lord, Lord West, said. The tripartite collaboration has been formed for a specific purpose and change in that respect is not envisaged. But my noble friend is absolutely right to recognise that AUKUS complements and enhances other relationships in the region, such as the Quad, Five Eyes or the FPDA, and that reflects both NATO’s approach and the EU Indo-Pacific strategy.

[Lord Liddle (Lab)]

My Lords, do the Government recognise that France is not only a close neighbour but also one of the few countries in the world that shares our fundamental values and interests? I support AUKUS, but was it not a great shame that no effort was made to bring France into the AUKUS conversation? Should not the Prime Minister have immediately reacted to the hurt feelings of the French by having a conversation with President Macron to see how the relationship can be put on a sound footing again?

[Baroness Goldie (Con)]

I simply respond to the noble Lord by observing that the instigator of this new arrangement was actually Australia: it was Australia that decided that it wished to change its model of submarine. That is why it approached both the United Kingdom and the United States. As the noble Lord will understand, there are clearly issues of profound commercial sensitivity inherent within that, and that inhibited our ability to be more public or widespread in our consultations.

[Baroness Smith of Newnham (LD)]

My Lords, when the Minister repeated the Prime Minister’s Statement on AUKUS in September, I asked what conversations the Prime Minister had had with President Macron before the announcement; answer came there none. Can the Minister please tell the House whether the Prime Minister and the Government understand the importance of the UK’s relations with France, that it remains our closest neighbour and that we should be working much more effectively to ensure that our bilateral relations and our relations within NATO are secure, because that is where our security lies?

[Baroness Goldie (Con)]

The noble Baroness is correct about our relationship with NATO and the significance of NATO to Euro-Atlantic security; I entirely agree with that assessment. She is also correct that France is a very important partner and ally, as I indicated to the noble Lord, Lord Liddle; nobody disputes that. We continue to engage and consult at macro level. We have shared common interests, and they are best prosecuted when we work together on them. That is our agenda and our endeavour, and I am absolutely certain that it is also the French objective.

[Lord Coaker (Lab)]

My Lords, we all support the AUKUS deal, but does the Minister realise that the French are absolutely furious with us, to the extent that, only a few weeks ago, they cancelled a meeting with our Defence Secretary to look at the future of the Lancaster House agreement? We depend on France to work with us in common interests across the world, so how will the Government prevent AUKUS opening up a rift in NATO, which is central to our security in Europe and beyond, just as the alliance is working on a new strategic concept?

[Baroness Goldie (Con)]

This is not opening up a rift in NATO. In fact, AUKUS has reinforced a NATO leaders’ summit decision to place greater emphasis on regional partnerships; and, interestingly, AUKUS reflects the new EU strategy for the Indo-Pacific for south-east Asia. There is a shared commonality of interests when we address threat, and I think I have observed before to the noble Lord that threat does not respect boundaries. So we address threats, France addresses threats and the EU addresses threats. We do it best together, and NATO is pivotal to that. That is acknowledged by all member states.

[Viscount Waverley (CB)]

My Lords, the purpose of the AUKUS pact is to ensure stability in Asia-Pacific. What is the strategy in the intervening years, given that the nuclear submarine programme will not be in play until 2040, before which time much can happen? Additionally, has China indicated any conventional or additional proliferation retaliatory measures? Was Five Eyes cited or consulted, as this has national, regional and potentially global security consequences?

[Baroness Goldie (Con)]

As for the future, the UK will continue to engage with allies and partners regarding the stability of the Indo-Pacific region, whether that is through the FPDA, bilateral relationships or Five Eyes, to mention but a few. With regard to Five Eyes in particular, we are discussing the arrangement with Canada and New Zealand, because Five Eyes is a unique and highly valued partnership.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, if this is a genuine defence and security treaty and not just a subterfuge to take the contract for submarines away from France, why are Canada and New Zealand not involved from the start, as the other two of the Five Eyes?

[Baroness Goldie (Con)]

Because this new arrangement is predicated on the desire of another state—Australia—to make changes to its submarine fleet. That was not instigated by the United Kingdom; we were approached by Australia.

[Lord Collins of Highbury (Lab)]

My Lords, this has had an impact on our relationship, as recognised by the US State Department. The Secretary of State has spent two days in France; President Biden has spoken to President Macron. At every level there has been a connection between the US and France to improve and restore relationships. What have this Government done? Has the Minister spoken to her colleagues in the FCDO? Are they working on a common strategy to improve our relationship with our closest ally?

[Baroness Goldie (Con)]

Yes, I want to dispel the illusion that there is some conspiracy of silence on the part of the UK; there is not. Certainly, from a defence perspective, business continues, as it has to, because of the essential nature of our activity. I was at the EI2 conference in Sweden just a few weeks ago and I spoke to Madame Parly, the French Defence Minister. We have a lot of important matters to engage upon and that is what we are doing.

[The Lord Speaker (Lord McFall of Alcluith)]

My Lords, that concludes Oral Questions for today.