Overseas Operations (Service Personnel and Veterans) Bill

Baroness Goldie Excerpts

Report stage
Tuesday 13th April 2021 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, I support both amendments, but in particular Amendment 6 in the name of my noble friend Lord Thomas of Gresford. Both seek to focus on prosecution, but also deal with the issue that the Government stated at the outset that they wanted to deal with; that is, as my noble friend Lord Thomas of Gresford pointed out, vexatious claims. The way the Bill is presently drafted does little to deal with repeated investigations. These amendments, in particular Amendment 6, are intended to deal with precisely the problem that the Government say that they wish to deal with. I would be grateful if the Minister could explain to us how she feels that the Bill, as drafted, is going to do what the Government claim that they want to do, because nothing in the Bill is going to stop vexatious investigations.

These amendments are not intended to undermine the Bill. In moving Amendment 1, the noble Lord, Lord Tunnicliffe, said that the Government would perhaps think that it would rip the heart out of the Bill. Neither is intended to do that; they are intended to be helpful and ensure that vexatious and unnecessary prosecutions cease and that prosecutions are dealt with expeditiously, where appropriate. Unlike the noble and learned Lord, Lord Mackay of Clashfern, these Benches do not think that prosecutors will find it too difficult to do the job outlined for them in Amendment 1. I support the amendments, and we will call a vote on Amendment 6, as my noble friend Lord Thomas of Gresford pointed out earlier.

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

My Lords, first, I thank your Lordships for your contributions. As has been indicated, Amendment 1 seeks to replace the presumption against prosecution with a requirement that the prosecutor, when deciding whether or not to prosecute a case, should consider only whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial.

I say as a general comment that my noble and learned friend Lord Mackay of Clashfern and the noble Baroness, Lady Chakrabarti, dwelled at length on the important matter of support for our Armed Forces, as covered by the Written Ministerial Statement tabled today. The noble Baroness raised specific issues which, with her indulgence, I propose to deal with when we debate Amendment 14 in the name of the noble Lord, Lord Dannatt.

I will explain why the Government are resisting Amendment 1. In doing so, I will cover much of what I said on this in Committee. First, we are not suggesting that service personnel or veterans have been subject to unfair trials. Our concerns have always been about the difficulties and adverse impacts on our personnel from pursuing allegations of historical criminal offences. Your Lordships are familiar with the character of such difficulties and adverse impacts—repeated inquiries and uncertainty hanging over the heads of our personnel for years as to whether any prosecution is to be brought.

Secondly, we are reassured that a person’s right to a fair trial—the nub of this amendment—is already protected in law by, among other safeguards, the Human Rights Act 1998 and Article 6 of the European Convention on Human Rights.

Thirdly, the amendment would remove the high threshold of the presumption against prosecution. We have specifically introduced this measure to provide the additional and overdue protection that we believe our service personnel and veterans so rightly deserve, while ensuring that, in exceptional circumstances, individuals who have done wrong can still be prosecuted for alleged offences.

Fourthly and lastly, Part 1 of the Bill already addresses the potentially negative effects of the passage of time, by requiring a prosecutor to give particular weight to the public interest in finality in Clause 3(2)(b).

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[Lord Tunnicliffe (Lab) [V]]

My Lords, important issues have been raised on this group and I thank colleagues for tabling these amendments. The Good Friday agreement is central to the ongoing peace process in Northern Ireland; we all have a vital role to play in safeguarding that agreement and building on its promise, and we must ensure that this Bill, or any other, protects it.

The Bill raises important concerns over access to justice and it should be improved for the entire United Kingdom. The Government have also promised legislation to address the legacy of the past in Northern Ireland. Ministers need to get this delicate legislation right: it must be in the spirit of the Stormont House agreement; we need victims to be at the heart of legacy proposals; and the Bill must maintain a broad-based consensus on proposals, as outlined in New Decade, New Approach, which restarted power-sharing. I look forward to hearing from the Minister actual details about this, rather than the usual “when parliamentary time allows” line.

[Baroness Goldie (Con)]

My Lords, once again I thank your Lordships for contributions to an important issue which is, for obvious reasons, very much to the forefront of our minds at the moment.

Amendment 18 in the name of the noble Baroness, Lady Hoey, seeks to create a new condition that must be satisfied before the provisions in the Bill can be commenced. That condition is for the Government to publish a report on the progress made in relation to legislation addressing the legacy of the Troubles. I thank the noble Baroness for her eloquent address, to which I know we all listened with both respect and interest, but I think she will understand that the Government cannot accept an amendment, no matter how well intentioned, that puts conditions on the timing of the implementation of provisions that seek to provide certainty and reassurance to our service personnel and veterans who have served on overseas operations, which is a different issue from the position of Northern Ireland.

I understand the concerns that sit behind this amendment, so I reassure noble Lords that the Government remain committed to making progress on legacy issues and we will not allow our brave service personnel who served in Northern Ireland to be forgotten. In order to make further progress, the Northern Ireland Office must continue to engage with the Irish Government, the Northern Ireland parties, and civic society, including victims’ groups. The Secretary of State for Northern Ireland and the UK Government recognise the importance of working with all parts of the community as part of this process.

I hope noble Lords will recognise that, sadly, the pandemic has had an impact in causing a loss of momentum, but I reassure your Lordships—in particular with regard to what the noble Lord, Lord Tunnicliffe, said just a few minutes ago—that this Government will bring forward legislation to address the legacy of the Troubles that focuses on reconciliation, delivers for victims, and ends the cycle of investigations. The Government—in particular, the Northern Ireland Office —are committed to making progress on this important issue as quickly as possible. In these circumstances, I hope that the noble Baroness, Lady Hoey, will be minded to not move her amendment.

The other amendments in this group, in the name of the noble Baroness, Lady Ritchie of Downpatrick, seek either to remove references to Northern Ireland in parts of the Bill or to stop certain provisions extending to Northern Ireland. The Bill extends to England and Wales, Scotland and Northern Ireland for a reason. Defence is a United Kingdom competence and our Armed Forces personnel are drawn from all parts of the United Kingdom, in whose name they serve. That is why the effects of the provisions in the Bill are substantively the same throughout the entire United Kingdom. It is right and desirable that the objectives of the Bill should apply throughout the United Kingdom; my noble and learned friend Lord Mackay of Clashfern made that point well.

However, as different pieces of legislation in the different nations of the UK are impacted by the Bill, to ensure technical compliance and drafting accuracy the necessary amendments have been effected in respect of the relevant law in England and Wales, in Scotland and in Northern Ireland. I say gently to the noble Baroness, Lady Chakrabarti, that the Bill is not a de facto immunity, and I think many people are coming to accept that as being an extravagant interpretation of the Bill.

Clause 10 and Schedule 4, which this group of amendments seeks to remove in their entirety, amend only the Limitation (Northern Ireland) Order 1989. These provisions introduce new factors that the Northern Ireland courts must consider when deciding whether to allow certain claims relating to overseas military operations to be brought after the primary time limit expires and set the maximum time limit for such claims at six years. It is necessary to extend similar provisions across the whole of the UK to ensure consistency. Your Lordships would acknowledge, I think, that it would be deeply unsatisfactory if the changes that the Government are introducing in relation to claims brought in England and Wales and Scotland could be circumvented by a claimant bringing their claim in Northern Ireland instead.

I am absolutely sure that the intent of these amendments is not to create legal loopholes. No one could listen to the noble Baroness, Lady Ritchie, without understanding her commitment and sincerity about the concerns that she has articulated. The stated reason for these amendments is a concern that the Bill will undermine a specific provision in the Belfast agreement stipulating that the United Kingdom Government would complete the incorporation into Northern Ireland law of the European Convention on Human Rights, with direct access to the courts and remedies for breach of the convention rights. The noble Baroness, Lady Suttie, sought reassurance on this point.

As I said when this issue was debated in Committee, the commitment to incorporate the ECHR into Northern Ireland law has already been met by enacting the Human Rights Act 1998, which provides for direct access to the domestic courts to vindicate convention rights, and the Northern Ireland Act 1998, which provides that the Northern Ireland Assembly may legislate only in a way compatible with the convention rights, and that Northern Ireland Ministers must also act compatibly with these rights. As currently drafted, the Government consider the Bill compatible with the convention rights. Your Lordships will acknowledge that review of the Human Rights Act is not the responsibility of the MoD.

Statutory limitation periods, which seem to be what these amendments are mainly concerned with, are generally considered legitimate restrictions on the right of access to a court. That right of access is not absolute, and the European Court of Human Rights has upheld the compatibility of limitation periods, even if these periods are in themselves absolute, including the absolute six-year limitation period for claims resulting from intentional torts in England and Wales. That was the finding in Stubbings and Others v the United Kingdom. Limitation periods do not impair the essence of the right of access to a court. Such periods ensure legal certainty and finality, avoid stale claims and prevent injustice where adjudicating on events in the distant past involves unreliable and incomplete evidence because of the passage of time. As such, nothing in the Bill would diminish the essence of the protections that the Human Rights Act currently offers the people of Northern Ireland. I reassure noble Lords that the measures in the Bill do not undermine the United Kingdom’s commitment to human rights and to the European Convention on Human Rights.

For the reassurance of the noble Baroness, Lady Ritchie, I repeat that this Government remain fully committed to the Belfast agreement, the constitutional principles it upholds, the institutions it established and the rights it protects. This agreement has been the foundation for the welcome political progress, peace and stability in Northern Ireland over the last 22 years and will be protected going forward.

The noble Baronesses, Lady Ritchie and Lady Suttie, have asked whether I am agreeable to meeting them. I am very happy to agree to meet them if I can help them, but it may be—and I would ask them to reflect on this—that they would find engaging with the review of the Human Rights Act, and perhaps meeting with the Northern Ireland Office, more relevant to their specific concerns. If they still wish to meet me, however, I would, of course, be happy to do that. With the explanation offered by these remarks, I urge the noble Baroness to withdraw her amendment.

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[Lord Tunnicliffe (Lab) [V]]

My Lords, there is almost universal support in this House for ensuring that torture, genocide, war crimes and crimes against humanity are excluded from the presumption. It is clear what the ICC thinks: if we do not do so, as has been quoted many times, the UK would

“forfeit what it has described as its leading role, by conditioning its duty to investigate and prosecute serious violations of international humanitarian law, crimes against humanity and genocide.”

That is why there is such strong support for Amendment 3 and, importantly, for its approach to protect these offences so that they cannot be removed by statutory instrument at a later date. I hope that the Minister has listened closely to the powerful debate and the broad coalition that spans military figures and human rights experts, and will promise that government amendments will come forward at Third Reading. Otherwise, we support my noble friend Lord Robertson in his important amendment and urge him to divide the House.

[Baroness Goldie (Con)]

My Lords, first, I thank the noble Lord, Lord Robertson, and all other noble Lords for their thoughtful contributions. We heard some exceedingly powerful speeches on these issues in Committee, and they were echoed today. I recognise the understandable concern and emotion that accompany the arguments that have been adduced. This is an extremely important matter, perhaps the most passionately debated part of the whole Bill, and I do not underestimate the scale of my task to address the arguments advanced by the noble Lord, Lord Robertson, and his supporters, but it is my job to try. The noble and gallant Lord, Lord Stirrup, made a telling point about perception, and it is my job to try to address that issue as well.

I reassure the House that the Government have given considerable and careful consideration to the offences that are excluded from the measures in Part 1. The intent of the Bill, as drafted, ensures that the Part 1 measures will apply to as wide a range of offences as possible, in order to provide that necessary reassurance to our service personnel that the operational context will be taken into account, in so far as it reduces a person’s culpability, in the circumstances of allegations of criminal offences on historical overseas operations. The broad objective of the Bill is to support our Armed Forces personnel, and I accept that that has been recognised across the Chamber. The divergence of opinion is on how we can deliver that reassurance.

In considering the provisions of the Bill, the Government gave careful thought to the physical environment of an overseas operation. As noble Lords who have served on such operations will know, the range of activity is diverse and the threat of danger ever present. It is a lethal environment in which our Armed Forces are called upon to deal with unimaginably challenging situations, and it is predictable that, arising from such activity, allegations of wrongdoing may be made. The one type of activity which can never have any place in such an operation is the commission of a sexual offence, so I say to the noble Baroness, Lady Smith, that is why sexual offences are excluded from the Bill. She referred to that as a presumption: it is not a presumption—it is an explicit exclusion.

Some have argued that such an exclusion means that the Government are relegating other crimes to a lower classification of gravity. We are not. We are acknowledging that in an overseas conflict, because of the inherent nature of such activity, there is a predictability about allegations being made that crimes have been committed. The Government are neither defining nor categorising what these crimes may be, we are merely creating a clearer framework and structure as to how such allegations are to be handled. It goes without saying that of course we shall take other offences, such as war crimes and torture, extremely seriously. I repeat that the Government’s decision to exclude sexual offences only, as I set out in detail in Committee, does not mean that we will not continue to view with the utmost gravity other offences such as war crimes and torture.

Nor will the Bill somehow provide an excuse for poor behaviour or enable impunity for very serious crimes allegedly committed by our Armed Forces personnel. I am very grateful to the noble and gallant Lord, Lord Stirrup, for his comments in that respect and I am pleased that many noble Lords recognise that the presumption against prosecution does not amount to either an amnesty or a statute of limitations, nor the creation of a de facto immunity. I say to the noble Lord, Lord Hannay, that a bar on prosecution in gremio of the Bill would be an amnesty—it would be a statute of limitations and a de facto immunity— but there is no such provision in the Bill. I remind noble Lords that the severity of an alleged offence will continue to be an extremely important factor for a prosecutor in determining whether to prosecute. We should remember that the presumption is, of course, rebuttable.

A number of noble Lords, including the noble Baronesses, Lady Chakrabarti and Lady Kennedy, referred to the five-year period. I just observe that the period was informed by the response to the consultation carried out on the Bill. Interestingly, the period of five years was visited at an earlier stage, in Committee, and has not been revisited.

I have listened to the very real concerns expressed by many in this House, including references to many third parties holding similar views, that the Bill undermines the United Kingdom’s continuing commitment to, and damages our reputation for, upholding international humanitarian and human rights law, including the United Nations Convention against Torture. I say to the noble Lord, Lord Dubs, that I seek to assuage these concerns and to reassure once more on this point: the United Kingdom does not participate in, solicit, encourage or condone the use of torture for any purpose, and we remain committed to maintaining our leading role in the promotion and protection of human rights, democracy and the rule of law. Our Armed Forces will continue to operate under international law, including, of course, the Geneva conventions, and we will continue to expect that others will do the same.

I would like to explain further why the Government’s view is that Amendment 3 should be resisted. First and foremost, we are concerned that it would undermine the reassurance that we are seeking to give to our service personnel and veterans by excluding a considerable list of offences from the application of the measures in Part 1. The Bill does not prevent such offences being investigated nor prosecuted. Indeed, in relation to prosecution, the gravity of the crime will be a cogent factor. It is perhaps also worth adding that, in the interests of clarity and to preserve the structure of the Bill as currently drafted, we believe that all the excluded offences should be listed in the same place in the Bill, and that the appropriate place is Schedule 1, instead of being spread across the Bill, as the noble Lord’s amendment would provide.

I have endeavoured to present the Government’s position and, in these circumstances, I ask the noble Lord, Lord Robertson, to consider withdrawing his amendment.

[Lord Robertson of Port Ellen (Lab) [V]]

My Lords, I do not have to repeat the respect that the House has for the Minister, but she does not speak with any great enthusiasm. That is not surprising because her case is so weak that enthusiasm and passion certainly cannot be part of her argument. I do not want to take up a lot of the time of the House at this stage, but let me quote what General Sir Graeme Lamb, the former director of Special Forces in the British Army, said in the weighty Policy Exchange document that was critical of this Bill. He said

“good intentions are not enough as the Bill as it stands may fail to protect our troops adequately … it does nothing to address the problem of repeat investigations.”

Then there was Bruce Houlder, the former Director of Service Prosecutions whom I quoted in my original speech, who told the Financial Times that the five-year limit would be an “international embarrassment”. I did not quote what he added, which was that

“the idea that we then treat torture and other grave crimes including homicide as excusable, and legislate in effect to make it difficult in the extreme to prosecute after five years, is really outrageous.”

The Minister has not quoted anybody in support of her contention that what the Government are saying is reasonable. I and other noble Lords and noble and gallant Lords have quoted endless examples of those who say that what is happening here today in this Bill is outrageous. Even today’s Daily Mail editorial condemns the Government for apparently legitimising torture in the way that the Bill does.

In light of the fact that the Minister has given no defence whatever, I insist that we test of the will of the House on this amendment.

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[Baroness Goldie (Con)]

My Lords, I am grateful for the opportunity to make a contribution which I hope may assist the progress of the debate on this amendment. I am very conscious that I have been unable to radiate much cheer this afternoon, so I will try to do better. As the noble and learned Lord has stated, Article 15 of the European Convention on Human Rights provides that, subject to certain conditions, states may derogate from—that is, temporarily suspend—relevant human rights obligations. Clause 12 would require any Government in future to consider whether to make a derogation under Article 15 in relation to significant overseas operations.

I am very grateful to the noble and learned Lord, Lord Hope, for his analytical clarity in addressing the issue surrounding Clause 12. He has been persistent in his focus on this issue and I thank him for that close attention. He is correct that the ability under Article 15 to derogate in appropriate circumstances would remain and would not be affected by the removal of Clause 12 from the Bill. It is also the case that the removal of Clause 12 would not prevent the Government from making a conscious decision when committing the Armed Forces to significant overseas operations as to whether it is necessary to avail themselves of the suspension mechanism created by Article 15 of the ECHR. It is important to recall that, if the UK did decide to so derogate in relation to a specific future overseas military operation, it would not prevent Armed Forces personnel or the MoD from being held to account.

Having listened closely to the issues raised about the way in which the Government have presented this clause—as I promised the noble and learned Lord in Committee I would do—and, although the Government consider that there was a place for originally including the clause in the Bill, I have detected that the House is sympathetic to the representations of the noble and learned Lord, and that there is a general consensus across the House for the removal of this clause. I am therefore pleased to confirm that the Government will accept the noble and learned Lord’s amendment to remove Clause 12 from the Bill.

[Lord Thomas of Gresford (LD) [V]]

My Lords, I am relieved to hear the Minister’s statement concerning Clause12 and its removal. The noble and learned Lord, Lord Hope, asked who the message was to be sent to. The proposal to give notice to a potential enemy that British forces would not be bound by the restraints of the European Convention on Human Rights was truly alarming. It would have exposed our troops in the field to reciprocal treatment.

I followed the noble and learned Lord, Lord Hope, in Committee in pointing out the utter uselessness of this clause anyway, in that it could not deal with those most pertinent and significant rights in the covenant from which no derogation is possible. It did not even try to mirror the circumstances of war or national emergency contained in Article 15, which permit derogation only in very strict circumstances. I do not propose to repeat that analysis.

The Government have thought again on the desirability of this clause. I urge them to think again on the desirability of the whole Bill. I urge them to pull the whole Bill and bring it back in the next Session after proper consultation. I do not say this from any party-political position but wearing the hat of the chair of the Association of Military Court Advocates. I cannot say that I am speaking for that association because no meetings have been possible during the pandemic, but you will appreciate that its members’ primary concern is with defending the ordinary service man or woman in courts martial, many of which relate to overseas operations.

For the reasons which I gave in relation to Amendments 1 and 6 and will not repeat at this stage, this Bill does not protect our service men and women. The only body protected by the Bill is the Ministry of Defence, probably for the ignoble reason given in Committee by the noble Lord, Lord Hendy: to save a bob or two. It is badly thought out, with many omissions and with repercussions that were not understood, not least in its failure to carry out the manifesto commitment of the Government to give statutory force to the military covenant—a matter which we shall shortly discuss. So, they should pull it now, and by all means bring it back in the next Session in a form which will be of use to and protect serving seamen, soldiers and airmen, without the ill thought-out provisions which expose them to danger. I say to the Government: pull the Bill.

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[Lord Tunnicliffe (Lab) [V]]

My Lords, I have nothing to add but to congratulate to the noble and learned Lord, Lord Hope, on his tenacious pursuit of this point and to thank the Minister for this moment of warmth and light.

[Baroness Goldie (Con)]

To all noble Lords who have contributed, I am pleased that this gesture has been received positively. I have listened carefully to the other observations, and these will be relayed to my colleagues in the MoD.

[Lord Hope of Craighead (CB) [V]]

My Lords, I am grateful to all noble Lords who have contributed to this short debate, and especially to the Minister for her kind words and generous concession, which has solved my problem.

I would like to take a moment to refer to the remarks made by the noble and gallant Lord, Lord Craig of Radley, who has kindly supported me all the way through my attempt to deal with Clause 12. He has raised again a concern among certain people, which I entirely recognise, that the ability to bring claims under the Human Rights Act risks undermining operations on the ground because decisions taken by the people engaged in them are exposed to the risk of being said to be in breach of the convention rights.

I delivered the leading judgment in the case of Smith v The Ministry of Defence, which the noble Lord, Lord Hendy, referred to earlier this afternoon. One of his clients was the mother of a solider who was, unfortunately, killed by friendly fire from a tank operating in the same battlefield. I spent considerable energy, in delivering my leading speech, to make it clear that the ratio that had driven me to reach the conclusions I did was concerned with actions by the MoD far removed by the battlefield. I made it clear that decisions made in the circumstances of combat by people usually under great stress and pressure was not what the Human Rights Act claim was about. It was about decisions taken, as the noble Lord, Lord Hendy, explained, long before the operations began which could legitimately be criticised as breaching the convention right.

The decision that I led has been misunderstood because of a dissenting judgment, which has received more weight than it should have since it was only a dissent. So, I would encourage those who still have a lingering doubt to look carefully at my judgment, which was a majority judgment. They will see that it contains the reassurance I think the noble and gallant Lord, Lord of Craig of Radley, is seeking.

That said, I come back to the Minister. I am well aware that a speech of the kind she has made this afternoon cannot be made without discussion behind the scenes. She listened carefully to what I said last time, and we owe her a great debt for taking up the points I made, understanding them and putting them across to others to achieve the result we have achieved this afternoon. We owe her a considerable debt and are fortunate to have her in the House as a Minister. I commend Amendment 11, the effect of which is that Clause 12 should not stand part of the Bill.

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[Lord Tunnicliffe (Lab) [V]]

My Lords, we fully support Amendment 14.

By my count, the noble Lord, Lord Dannatt, and the noble and gallant Lords, Lord Boyce and Lord Stirrup, have about 120 years of service in the Armed Forces between them. They have all argued passionately for a duty of care standard to be in the Bill. As a former acting pilot officer, I have to say that I am very proud of the stance they have taken. It shows that the former leadership of the Armed Forces is capable of being both compassionate and wise. When colleagues of such experience speak, we should listen. I am unsure why the Government remain so resistant to this. We stand foursquare behind our troops and a duty of care would ensure that our Government did so too. We will support the amendment if it is pushed to a vote.

As Amendment 14 refers to legal support, I want to seek some clarity on legal aid. I thank the Minister for writing to me on this issue, but the position stated in the letter is a little different from the position of the Minister in the Commons. The letter says:

“We cannot categorically say that Service personnel will receive legal aid”


but Johnny Mercer said:

“There is … full legal support, paid for by the MOD, for everybody swept up in these investigations.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 22/10/20; col. 351.]


Can the Minister confirm that? The letter also says that cuts which were applied to the national legal aid system were also applied to the Armed Forces legal aid scheme as they mirror each other, but the Armed Forces Minister said that the Armed Forces system is “bespoke”. Can the Minister confirm how much money for legal aid has been cut in the last decade from the Armed Forces legal aid scheme? This confusion between Ministers demonstrates exactly why we need protection in the Bill.

Ministers say they have made progress, but ultimately Ministers move on. Let us put a duty of care in the Bill so that personnel have full confidence that Ministers are serious about helping them through difficult times. I look forward to the noble Lord, Lord Dannatt, seeking the decision of the House. We will undoubtedly fully support the amendment.

[Baroness Goldie (Con)]

My Lords, this has been an interesting debate and I am very grateful for all the contributions that have been made. Amendment 14 proposes that the Ministry of Defence should establish a statutory duty of care standard for current and former service personnel and, where appropriate, their families, and that the Secretary of State should be required to provide an annual update in the Armed Forces Covenant Annual Report.

This is obviously a matter of great importance which commands the interest of us all, and I am very grateful to the noble and gallant Lords, Lord Stirrup and Lord Boyce, and the noble Lords, Lord Dannatt and Lord Tunnicliffe, for their commitment to ensuring appropriate protection for our service personnel and veterans and for the conversations we had following the debate in Committee. In terms of the sentiments expressed by the noble Lord, Lord Dannatt, and the broad objectives which he and the noble and gallant Lords seek to achieve, I doubt if there is a cigarette paper between us—where we diverge is on the mechanism for delivery—so I can see why many are attracted to this amendment and feel the Bill could be enhanced by it.

I start by saying that we take our responsibilities to our service personnel and veterans extremely seriously. I have listened to the concerns raised in Committee and I have met further with the noble and gallant Lords. I thank them for their willingness to have these meetings, which have been constructive. I understood from the meetings that further reassurance was needed about the breadth and depth of support now available to those who are subject to investigations and prosecutions. As has already been referred to, a Written Ministerial Statement was published which set out as a matter of record the diversity and depth of the support that is and will continue to be available.

Although in Committee I provided an overview of the support that we give to our personnel and veterans, I am happy to summarise the key points from the Written Ministerial Statement for the benefit of the House. First—and importantly—as a matter of MoD policy, service personnel are entitled to legal support at public expense where they face criminal allegations and civil claims that relate to actions taken during their service and where they were performing their duties. I say to the noble Lord, Lord Tunnicliffe, who asked whether there was a discrepancy between the descriptions given of the availability of legal aid, that I am not sure what the nature of the difference is between what I had said and what my honourable friend the Minister for Defence People and Veterans said in the other place, but it may have been the simple distinction that there has to be a need to be performing duties. Obviously, a member of the Armed Forces could commit a crime while not engaged in their duties, and one would imagine that that would then become the responsibility of civil authorities if it took place in this country. If it took place overseas, other interventions might be necessary.

Legal advice and support are also available wherever people are required to give evidence at inquests and inquiries and in litigation, and this is co-ordinated by the MoD. This principle is at the heart of the MoD’s approach to supporting our people and is enshrined in the relevant defence instruction notices. I know that the noble and gallant Lord, Lord Stirrup, was slightly caustic about that, but these are the notices which make clear to our Armed Forces personnel what they can expect, in terms of support, from the MoD and their chain of command and what facilities are available to them. It is a responsibility that the MoD takes very seriously, and we keep our policies under review to ensure that they are appropriate and tailored to need.

At an earlier stage this afternoon, the noble Baroness, Lady Chakrabarti, raised a couple of issues about legal aid, and I will try to clarify what some of this provision is. Any individual who is investigated by the service police is entitled to legal representation as well as the support of an assisting officer, who can then offer advice on the process and procedure and signpost welfare support. Individuals who are interviewed as suspects under caution will be entitled to free and independent legal advice for this stage of investigation. Subsequently, legal funding for service personnel and veterans facing criminal allegations can be provided through the Armed Forces Legal Aid Scheme or through the chain of command for as long as is necessary.

As regards legal aid funding, the Armed Forces Criminal Legal Aid Authority will provide legal aid in circumstances where service personnel are not entitled to regular legal aid because of where they are employed or resident as part of their military duties. Where service personnel’s employment or residence has not disadvantaged them, they can apply for regular legal aid as well, as would a civilian, and are therefore not placed at a disadvantage. Personnel are entitled to apply for legal aid regardless of whether they are considered to have acted outside the scope of their duties, but the MoD can still decide to pay for legal representation in respect of an allegation arising from an act committed in the course of the service personnel’s duties. There is extensive provision. I know that the noble Lord, Lord Tunnicliffe, was interested in this issue, and I can undertake to provide both the noble Lord and the noble Baroness, Lady Chakrabarti, with more detailed information if that would be helpful to them.

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Moved by

[Baroness Goldie]

20: Schedule 1, page 12, line 7, leave out “this Part of this Schedule” and insert “paragraphs 2 to 13”
Member’s explanatory statement
This amendment clarifies the scope of paragraph 14.

[Baroness Goldie (Con)]

My Lords, we come to what some might argue is the least thrilling and interesting part of Report stage, but I hope I can conclude our proceedings on Report with something slightly positive and welcome.

These amendments are minor and technical. They are being brought forward to improve the drafting of the Bill. Amendment 20 corrects the scope of paragraph 14 of Schedule 1 so that it refers only to the offences listed in paragraphs 2 to 13 of Schedule 1 and not to Section 42 of the Armed Forces Act 2006. This is not required because Section 42 does not create any new offences in addition to those listed.

Amendments 23 and 25 correct errors in the Bill and omit paragraphs 23 and 30 of Schedule 1 because neither is necessary. Paragraph 23 is unnecessary because Section 65 of the International Criminal Court Act 2001—referred to in paragraph 23—does not establish an offence separate from those already mentioned in paragraphs 17 to 22 of Schedule 1 to the Bill. Similarly, paragraph 30 is unnecessary because Section 5 of the International Criminal Court (Scotland) Act 2001—referred to in paragraph 30—does not establish an offence separate from those already mentioned in paragraphs 27 to 29 of Schedule 1 to the Bill. I beg to move.

[Baroness Smith of Newnham (LD)]

My Lords, this might be the shortest intervention of the evening. I am grateful to the noble Baroness for saying that there are errors in the Bill and removing the relevant paragraphs. I do not think anybody will be too sad to lose certain paragraphs from this Bill. There may be clauses that we would have preferred to lose, but I do not think that there will be any objections from these Benches.

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[Lord Tunnicliffe (Lab) [V]]

I am willing to accept the assurance from the Minister that these are technical amendments, and I have no further comments.

[Baroness Goldie (Con)]

It would seem trite to say that I thank your Lordships for this long and interesting debate but, none the less, with great sincerity, I thank the noble Baroness, Lady Smith, and the noble Lord, Lord Tunnicliffe, for their contributions.

Amendment 20 agreed.

--- Later in debate ---

Moved by

[Baroness Goldie]

23: Schedule 1, page 13, line 28, leave out paragraph 23
Member’s explanatory statement
This amendment corrects an error in the Bill. The provision omitted by this amendment is unnecessary because section 65 of the International Criminal Court Act 2001 does not establish an offence separate from those already mentioned in paragraphs 17 to 22 of Schedule 1 to the Bill.

--- Later in debate ---

Moved by

[Baroness Goldie]

25: Schedule 1, page 14, line 24, leave out paragraph 30
Member’s explanatory statement
This amendment corrects an error in the Bill. The provision omitted by this amendment is unnecessary because section 5 of the International Criminal Court (Scotland) Act 2001 does not establish an offence separate from those already mentioned in paragraphs 27 to 29 of Schedule 1.

Defence and Security Industrial Strategy

Baroness Goldie Excerpts

Wednesday 24th March 2021 Lords Chamber

[Baroness Smith of Newnham (LD) [V]]

My Lords, another day, another defence Statement repeat, and an opportunity for us to probe the Government’s thinking about wider issues of the integrated review in terms of security, defence and, on this occasion, the defence industrial base.

Like the Labour Front Bench, we broadly welcome this paper. However, I would be a bit more cautious than the noble Lord, Lord Tunnicliffe, and I have a few more questions that might sound a little more concerned about the Government’s thinking in terms of the future. As the foreword to the report states

“our forces require equipment which is state of the art. Just as we are refreshing what we require of our Armed Forces, we are reviewing the equipment they will need to face tomorrow’s threats and setting out a path for innovation for the future.”

That is absolutely right. However, should we be thinking about tomorrow or more about the day after tomorrow? I ask that in particular because yesterday’s Statement in the Commons reaffirmed the Government’s commitment to spending another £85 billion over the next four years on equipment and support for our Armed Forces. That spending is clearly very welcome, but it essentially takes us to the end of this Parliament. What is the longer-term thinking? Research and development is clearly important, but there is a danger that the Government are still thinking in parliamentary cycles and not necessarily about the wider defence procurement situation, which is very different and runs into decades, not merely two or three years. What thinking is going into longer-term planning? The Statement that has been repeated today gives some important insights, but it gives us tomorrow, not the day after tomorrow.

Unlike the noble Lord, Lord Tunnicliffe, I have a slight concern that the new approach signals a shift away from global competition by default. It is right that the UK is resilient, that it has a secure industrial base, that we are able to engage in research and development and that we should be able to have first-class building of ships and other equipment, as stated, right across the United Kingdom. The defence industrial base is clearly very important.

The Statement talks about exports. If the UK is saying that it is no longer going for global competition by default, what work are Her Majesty’s Government doing to persuade our partners and allies, and others who might consider purchasing from the UK, that they should not also pursue a domestically focused agenda? While it is clearly important that we develop things domestically, that export market is flagged up, so there are some questions that may need further exploration.

I ask the Minister to give us a bit more information about the proposals on procurement. Over the past decades—this is not a problem of any individual Government; it is systematic—there have been issues about major capital projects being prone to overspend and overrun, with knock-on effects on the defence budget. How will the changes to procurement affect this? Will we not have so many bespoke projects? How does that fit with the discussions that the Government are having with our defence industry? Can the Minister reassure us that the proposals put forward in the Statement and the strategy document are led by defence needs, not defence industry priorities?

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

My Lords, I thank the noble Lord, Lord Tunnicliffe, and the noble Baroness, Lady Smith, for their comments. I think I feel a bit like the musical song, “Getting to Know You”. I never seem to be quite away from this Dispatch Box on defence matters, but that is a privilege. I thank the noble Lord and the noble Baroness for their generally positive response to the strategy. I understand that the noble Baroness had some reservations and I shall try to assuage her concerns.

Frankly, I think this new defence, security and industrial strategy marks a watershed for the MoD. It is a substantial document. It is the first time in a long time that we have had true analytical discernment of what the challenges are. We need to understand not only what the threats are but how we are going to respond to them and then recognise that we actually need to be able to respond to them when they arise rather than thinking about the response and hoping to find the technology or the equipment some way down the line. The strategy completely turns on its head the whole pace and depth of the co-operation and collaboration with industry in a very positive manner.

The noble Lord raised the issue of jobs. As he is aware, the defence and security industry in this country is one of the major job providers. We think that over 200,000 jobs across the UK are sustained by these industries, which are globally recognised and renowned. The whole essence of the strategy is not only to secure the defence equipment support and technology that we need when we need it but also to ensure that there is an input to the economy and there is an export potential, so I think his reservation about the job situation is perhaps unfounded. We can look to the strategy to make a singular improvement in how we relate defence investment activity to a broader benefit to the economy and to our exports.

The noble Lord narrated a number of aspirations. I largely agree with them and I suggest that those are in essence met by the paper. He wanted to know how individual parts of the intelligence would join up, and he was interested in some of the specifics about acquisition and procurement.

In the section devoted to that, there are some very reassuring statements, including the proposed reform of the defence and security public contracts regulations, reforming the single-source contracts regulations, and publishing afresh the MoD SME Action Plan; I reassure him that is to be published later this year. In that connection, I mention the successful and effective investments of DASA, the defence and security accelerator, which has done pivotal work since it was introduced. It is an essential support, not least to SMEs and start-ups. That is conducive to a more diverse and innovative market.

The noble Lord particularly mentioned the artificial intelligence strategy. That will be in conjunction with the new defence artificial intelligence centre, which is hoping to accelerate the adoption of this transformative technology across the full spectrum of our capabilities and activities.

The noble Lord also raised the very important matter of measuring delivery against the laudable intentions and objectives of the strategy document. I say to him that, yes, this is recognised and that, because a lot of this is not just MoD but across government, Ministers across government, led by the Secretary of State for Defence, will regularly review progress against the strategy.

The noble Baroness, Lady Smith, was perhaps a little less warm in her reception of the document, although I detected that she is broadly in approval. She asked the pertinent question: is this about today or the day after tomorrow? I suggest that it is about both because, given how the strategy is structured, it recognises and continues much of the good work that has emerged in recent years. It is knitting that together, as I said, based on analysis of the threats we face and how we must respond. There are certain strategic imperatives and areas of independence of operation where we will want that to happen from providers in the UK. I say to her very strongly that this is a strong signpost of the direction of travel for both the MoD and our industry partners.

The noble Baroness asked a pertinent question, which was well justified, about the international community because, as the noble Lord, Lord Tunnicliffe, identified, we have departed from the former premise of “global by default”. She is quite right because, although there will be a premise on which we operate for our strategic imperatives and areas where independence of operation is absolutely critical—it will fall to our UK providers to assist with that—we also recognise of course the importance of the international community.

Our global alliances and partnerships are of strategic importance and, as a leading advocate for the development of innovative, adaptive capabilities, the UK will invest in emerging technologies, using the strength of the UK’s world-class industrial and technological base. We will be open to working with allies and partners through international programmes, and these existing initiatives will continue. There is clearly an opportunity to work closely with our partners and other industry providers abroad. The noble Baroness will be aware that the UK will work internationally to develop key military capabilities, such as developing our future combat air system.

So I reassure the noble Baroness that, although we understand that this Statement gives a clear direction of travel to encourage and support our United Kingdom-based defence and security industry partners, it is not to the exclusion of international provision, where we consider that that does not compromise our security but offers an attractive proposition.

The noble Baroness spoke about overrunning budgets in the past. That is a very legitimate reservation to mention. There have been procurement issues in the past and these have not been proud moments for the MoD. But the way in which the strategy is constructed and conceived, which is about engaging with industry from the earliest moment, identifying what we need, discussing with industry how that might be provided and then being sure that there is a constant monitoring process of how that develops as orders are placed, means that many issues that used to obstruct the smooth progress of our procurement contracts are now being ironed out. In some cases, they are actually being eradicated, because of the much more innovative and intelligent approach to how we liaise with our industry and security partners.

I have tried to answer the principal points the noble Lord and the noble Baroness raised. I hope I have addressed them adequately.

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

My Lords, we now come to the 20 minutes allocated for Back-Bench questions. As ever, pith is the order of the day.

[Lord Arbuthnot of Edrom (Con) [V]]

My Lords, I draw attention to my interests as set out in the register. This was a good review, which concentrated on many key points, including resilience. But is there not a risk that reducing the Regular Army reduces the connection between the Armed Forces and the public they serve, and hence reduces support for the Armed Forces and that very resilience we need to build up?

[Baroness Goldie (Con)]

My noble friend asks a very perceptive question. We are satisfied that, despite a reduction to 72,500, we still have a very significant cohort of professional military. We are satisfied that we can discharge all the obligations falling upon us, whether in conflict, peacekeeping, or MACA requests for domestic resilience at home.

We have seen, through the response by the Armed Forces to the Covid pandemic, what tremendous respect and affection the public have for our Armed Forces, and I hope that that will endure. There may be other occasions where we deploy our Armed Forces on MACA tasks or other civil support tasks at home, and that will reinforce not only the professionalism they possess but the affection with which the public rightly regard them

[Lord Houghton of Richmond (CB) [V]]

I draw attention to my interests in the register. As our Armed Forces move from a platform-centric approach to capability to one focused on technological advantage, it is ever more important to connect the operational requirement to the best available technology quickly. In the world of romance, we would be advocating the need for a speed dating agency.

Previously, the romance has failed because the potential match is broken between the cautious process of defence procurement and the monopolistic position of defence industry primes. The relationship has in fact been an obstacle to the rapid achievement of technological advantage. So I ask the Minister: which part of the new defence industrial strategy establishes the dating agency? Who is in charge of it and how does the wider world of technical opportunity sign up to it?

[Baroness Goldie (Con)]

I say to the noble and gallant Lord that I love the analogy; it is very apposite. He identifies an important point. He is aware that there is constant consultation and discussion within the MoD with our single services about what their needs are. In the past, the blockage has been in translating need into the production of kit or equipment. This new strategy makes it clear that there will now be a much smoother, clearer progression. The early engagement with industry is critical to establishing that we have identified what the single services want—and then we have to make progress in delivering that as efficiently and as swiftly as possible.

[Lord Grocott (Lab) [V]]

My Lords, given the Prime Minister’s commitment to thousands of additional jobs in the defence sector, can the Minister tell the House how the jobs envisaged in this Statement will be distributed across the regions and nations of the United Kingdom? How will the strategy contribute to levelling up between the north and the south? If she cannot give all those details at the moment, can she please place a copy of them in the Library?

[Baroness Goldie (Con)]

Yes, it is a very important part of what we are doing. As the noble Lord spoke, I was looking at page 13 of the strategy document, which has a marvellous depiction of the reach across the United Kingdom of what we do with industry and security. It is very clear to me that this is all about the union and levelling-up. The noble Lord will look at those locations and see the potential for many of these areas to benefit from the fruits of the new strategy.

[Lord Chidgey (LD) [V]]

The Government state that the future will be digital, cyber and technological. It so happens that many years ago I was fortunate to be an Admiralty student apprentice, becoming a graduate engineer in the process. I call on the Minister to set out where the Government plan to find the young students who excel in the applied sciences now, this year, ready to develop the technical and engineering skills required for the 2,500 apprentices over the next five years. Most importantly, where will they find the highly qualified and skilled instructors to train this new model of a technician-based workforce?

[Baroness Goldie (Con)]

This is all about an increasingly close partnership between government and industry. The noble Lord will be aware that industry, particularly in defence, employs not just many employees directly but many modern apprentices, and in some cases that has been found to be a proven route for learning and commitment to the corporate organisation. It is an exciting future for young people interested in STEM subjects. Across the nation, particularly in the devolved Administration areas, where I have engagement, there is an interest in progressing STEM and using the critical mass of the MoD providing those skills in the devolved nations to help them with their educational delivery.

[Lord Empey (UUP) [V]]

My Lords, may I ask about the rollout of work? Part of the problem in the industry has been that work is inconsistent and erratic. While there is supposed to be a shipbuilding strategy, can she tell the House whether companies such as Harland and Wolff in Belfast will get actual orders to contribute by supplying ships and other vessels so that there is consistent work in the defence sector, rather than an erratic supply of work?

[Baroness Goldie (Con)]

The noble Lord will be aware from the White Paper published on Monday that very close attention was paid to the rollout of an exciting shipbuilding programme. There is an intention to refresh our national shipbuilding strategy, and the Secretary of State for Defence is the shipbuilding tsar. So there is a real and rooted interest in the future of the shipbuilding industry in the United Kingdom. I am absolutely certain that all shipbuilders in the UK, if they are interested in the construction of naval marine craft, will engage with the MoD to see what opportunities await.

I can also say to the noble Lord, particularly in relation to Belfast, that of course we have Spirit AeroSystems and Thales. Indeed, I think it was Spirit AeroSystems that recently, this year, got a contract to develop the RAF’s lightweight affordable novel combat aircraft. We are very mindful of the contribution that can be made across the UK.

[Lord Boyce (CB) [V]]

My Lords, this comprehensive industrial strategy is very much to be welcomed. I focus on the shipbuilding aspects to seek clarification from the Minister on a couple of points. It would seem that opening competition for building of warships is to be nuanced, to use the expression used by the Minister yesterday in the other place and in the strategy paper itself. The noble Baroness has touched on this—but, to be clear, does that mean that building warships offshore in future will not be precluded?

Secondly, the impression is given that RFAs such as future support ships may be classified as warships for the purpose of shipbuilding. Have the Government considered the implications of this, in so far as the present classification of RFAs as merchant ships allows them, among other things, freedom of navigation in certain territorial waters not allowed to warships?

[Baroness Goldie (Con)]

I think the noble and gallant Lord would agree that what was outlined in the Command Paper is exciting, not just for the UK shipbuilding industry but for the Royal Navy. The thrust of the security and industrial strategy paper is obviously that we want to be sure that we have a sustainable defence industry in the UK, which includes shipbuilding.

On the noble Lord’s particular question on whether we would never look abroad for a ship, I would not say that. It would be a very short-sighted view to take. There might be a situation where a product was available and we would think it safe to buy it without compromising our operational independence.

The classification of ships is clearly a matter for the Secretary of State to determine. I am sure he will do that on a case-by-case basis.

[Lord West of Spithead (Lab)]

My Lords, I think I would give eight out of 10 for this. I am delighted that the Government recognise the importance of defence industries and the sovereign capability. But I join the broadside from the other side of the House—from the noble and gallant Lord—about shipbuilding. Some months ago, the Prime Minister said that there was a renaissance in British shipbuilding, and he mentioned a lot of frigate orders. Since then, there has not be a single frigate order. The Type 32 talked about is not even on the design board. The first three Type 26 frigates were ordered five years ago and the first will not be delivered for another six years, which is appalling. Have there been any meetings between the Secretary of State, the Minister for Defence Procurement and BAE Systems to try to squeeze the time needed to build these ships, which would make them a lot cheaper, and to get sensible orders in for the remaining five, driving the costs down—or are they leaving it just to run and run as a cash cow for BAE Systems?

[Baroness Goldie (Con)]

To take the last point first, no, absolutely not. While I welcome the noble Lord’s eight out of 10 for the report, which suggests that we are making progress, I think he makes a slightly harsh assessment of the shipbuilding programme. He is aware that we are committed to the eight Type 26 frigates being built in the Clyde, replacing the Type 23s and being in service for the late 2020s. He is also aware of the five Type 31s being constructed in the Forth at Rosyth, which should also be in service for the late 2020s. The Prime Minister outlined the desire to have five Type 22s. There is a steady drumbeat of orders and the yards are processing these orders. If I may say so, the noble Lord’s representation of the situation is rather dismal and not warranted.

[Lord Addington (LD)]

My Lords, to follow up on the question from my noble friend Lady Smith, military procurement has a history of overrunning projects, which people will not back out of because of personal involvement—and there is something in there, too, about jobs. Are we going to have a strategy and justification for saying no to a project, particularly if that means that we are not buying an off-the-shelf replacement which meets a battlefield capacity that we think we might need?

[Baroness Goldie (Con)]

I am sure the noble Lord will understand that the budget constraints on all departments, not least the MoD, are visible and exacting. Certainly, the MoD is very mindful, which is what underpins the strategy. How we spend money in future has to do two things: achieving the procurement and acquisition of the technology that we need as swiftly as we can get it when we need it, and ensuring that we contribute to the broader economy by generating activity in the domestic economy and possibly the potential for exports. The scenario that the noble Lord envisages is unlikely to arise because from now on procurement will proceed on a very different basis from what we have known in the past.

[Lord Lancaster of Kimbolton (Con)]

I remind the House of my interest as chairman of the Reserve Forces 2030 review. If we are to meet the ambitions of the integrated review, we need to find better ways to share skills between the private sector and defence. One way is the use of the sponsored reserve—for example, the Voyager programme, whereby Airbus engineers service the aircraft during the week then don their uniforms at weekends, giving an assured capability. That is, however, an underutilised resource, with fewer than 1,500 instances across defence. Is now the time to ensure that all future major defence contracts include a provision for sponsored reserves?

[Baroness Goldie (Con)]

I thank my noble friend for his interest in and continued focus on reserves. I also thank him for his report, the Reserve Forces 2030 review, which will be presented to Parliament soon, as my right honourable friend the Secretary of State said in another place on Monday. As the Secretary of State also acknowledged, in previous decades there has been resistance within MoD to recognising the potential of reserves and using them properly. On sponsored reserves, which my noble friend highlights, they are indeed already playing a significant role. I know that the Armed Forces are looking at the options for developing their role, for example in growth areas like space, cyber and other applied digital skills.

[Lord Bilimoria (CB) [V]]

My Lords, as president of the CBI, I can say that industry welcomes the new defence and security and industrial strategy, or DSIS, and the vision that lays out the defence sector’s strategic relationship with industry. The DSIS is ambitious regarding R&D and innovation, exportability and global Britain, and the creation of BARPA is an exciting opportunity. Will the Minister explain how the Government will ensure that innovation is rewarded fairly with a collaborative approach, with the management of intellectual property helping to crowd in private sector investment and MoD R&D activity? Also, does she agree that, by using its purchasing power to help pull developing technologies through to market at the leading edge of science and technology, it will drive prosperity and generate thousands of highly skilled jobs across the country?

[Baroness Goldie (Con)]

The last point the noble Lord alluded to is very important. Yes, I agree, and we hope that that indeed will be the consequence of the application of this strategy in practice.

On the other issues to which the noble Lord referred, again, early, close engagement between MoD and industry will go a long way to achieving the clarification he seeks. Certainly, introducing intellectual property strategies into the MoD’s acquisition processes for defence programmes to better incentivise and manage risk will also go a long way towards addressing some of the points he raises.

[Lord Liddle (Lab) [V]]

My Lords, I welcome the integrated review and the defence papers that have come from it; that shows a willingness to engage in long-term thinking. My concern is that the emphasis on sovereign capability comes up against our long history of overspending on defence procurement and the difficulty of controlling programmes. What is the Government’s attitude towards common European defence procurement as a means of securing greater cost-efficiency? Why is it that in Europe we are ending up with two separate attempts to produce a next-generation future combat air system? Would it not make more sense to go for a single common approach? In the past, the financial viability of UK defence business has often been secured by arms sales. Do the Government recognise that in future, this is likely to come up against lots of ethical foreign policy and human rights concerns?

[Baroness Goldie (Con)]

The strategy lays out a clear basis for how we will engage not just with our companies at home but with potential suppliers abroad. At the end of the day, we want a quality product providing what our Armed Forces need at a price fair to the taxpayer. Internally, we will be very clear about the pricing structures for these products. Equally, we are very clear that, if we are going abroad or dealing with an international provider, we will monitor and scrutinise that closely. We will be guided on a case-by-case basis as to what we need, who best can provide it and whether it needs to be regarded as a strategic imperative or to have operational independence, in which case it will almost certainly be with a UK provider.

[Lord Jopling (Con)]

My Lords, it is all very well for the Government to tell us that there will be opportunities for the British defence industry. Does the Minister agree that sometimes, contracts have been awarded strongly influenced by political or industrial pressures, which sometimes leave our forces with unbalanced structures and indeed with equipment inferior to the best available? Surely, the prime need is that the forces should get the best that is available. One example is the Challenger 2 battle tank: the promised export orders fizzled out very quickly and we were left with a tank which could not share its ammunition with any of the other NATO forces.

[Baroness Goldie (Con)]

The sort of scenario to which my noble friend refers may well have happened in the past—but that is where it belongs. The point of this strategy is that there will be hard imperatives for the commercial decisions we take. These will be based on what we need, what is best and who can best provide it for us.

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

My Lords, I am afraid that the time allocated for this Statement is now up; my apologies to the speakers who were not called.

Integrated Review: Defence Command Paper

Baroness Goldie Excerpts

Tuesday 23rd March 2021 Lords Chamber

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

My Lords, I thank the noble Lord, Lord Tunnicliffe, and the noble Baroness, Lady Smith, for their welcome recognition of the contribution made by our Armed Forces to the Covid response during a worrying and disturbing time for everyone. I think we are united in admiring what our Armed Forces have been able to do to contribute to the response and I appreciate that being both acknowledged and welcomed in the Chamber.

The noble Lord, Lord Tunnicliffe, raised a number of issues, including the comprehensive resilience strategy and the date of its publication. I do not have with me the specific date, but I shall undertake to look into it and respond to him. The noble Lord was slightly gloomy about the prospect of this vision for our defence capability and referred to previous strategic defence reviews. I say to him that I remember starkly the review that had to take place in 2010 because, as he will recall, having been in government prior to then, at the time we were facing a £38 billion black hole in the MoD budget. I remember it clearly because in flashing red lights above it was the future location of our RAF base at Lossiemouth. I am not given to going on demos, but I was moved to go on one, with cross-party support, marching in Lossiemouth in an effort to save the base. I am very glad that I went on that demo. I shall not say that it gave me an appetite for going on others, but I am absolutely delighted that we succeeded in saving Lossiemouth. It now occupies, as your Lordships will be aware, a position of strategic importance in our response to the threats we face. I would argue to the noble Lord, Lord Tunnicliffe, that the response and vision set out in our defence White Paper is vibrant, visionary, exciting and dynamic. Importantly, it also lays out a strategy that is funded.

The noble Lord expressed concerns about the RDEL budget. I reassure him that, averaged over the years, the budget will increase and, while broadly flat when using the OBR inflation assumptions and the GDP deflator, it will still increase by 0.1% over the period. I can reassure him that, as we modernise equipment and identify estate that is no longer fit for purpose, we anticipate reducing costs. Further, as he will be aware, we now face stringent Treasury rules. We have improved our practices in procurement of equipment, so some of his speculation about the future for these issues is rather bleak and not well founded.

The noble Lord and the noble Baroness, Lady Smith, raised the issue of our nuclear deterrent. I welcome from both sides of the Chamber a clear commitment to our nuclear deterrent. It is vital. It is essential that it remain credible, and that is why there has been a decision to increase the number of warheads. The inescapable virtue of a deterrent is that if it is not credible, you might as well start placing it in the scrapyard tomorrow. In fact, the acid test of a deterrent is: has it stopped happening the things that it is meant to deter? We all know the answer to that, and that is why we need the deterrent at the moment, why it must be credible and why we have made the decision to increase the number of warheads. But I would, of course, emphasise that it is not a target; it is a ceiling.

The noble Lord, Lord Tunnicliffe, also raised the issue of artificial intelligence—AI—which is an extremely important area of our activity. He will be aware of the sums we are allocating to research and development and to our new stratagems in that direction, and I think that is to be encouraged. It will transform how we respond to the new generation of threats we face, and I am satisfied that that is both an intelligent and substantive response to that nature of threat.

The noble Lord also raised the question of climate change, sustainability and the strategy within the MoD. I am pleased to say that a very thorough and extensive report was completed which attracted admiration within the department. It certainly made clear to the department the decisions we will have to take and the objectives we should have. I will inquire about whether I can share some of that information with him, because it paints a very positive picture.

The noble Baroness, Lady Smith, along with the noble Lord, Lord Tunnicliffe, raised the question of a defence debate. No one is more enthusiastic about a defence debate than I am, and I will certainly speak to my noble friend the Chief Whip and say that, if time can be found in the schedule, it would be a very worthwhile deployment of time in this Chamber. I would be very happy and proud to represent the Government’s position on defence on that occasion.

The noble Lord, Lord Tunnicliffe, specifically mentioned R&D and what we are investing. We have committed to spend £6.6 billion on research and development in the next four years to accelerate advanced and next-generation capabilities. That reverses a decline in R&D across recent decades, once again elevating us to the status of a world-leading science nation. There was interest from both the noble Lord and the noble Baroness in what we are doing with all this investment. The answer is that we will drive innovation in game-changing technologies that offer generational leaps, so that we can outpace our adversaries and give us a decisive edge. This will deliver capabilities that are agile, interconnected and data driven.

I think it was the noble Baroness, Lady Smith, who raised the integrated review. As she is aware, the integrated review identified four overarching objectives: sustaining strategic advantage through science and technology; shaping the open international order of the future; strengthening security and defence at home and overseas; and building resilience at home and overseas. The defence White Paper is a very substantial response to these overarching objectives, and it indicates clearly how defence sees itself fitting into the pursuit of these objectives and making that essential contribution to our global reach.

The noble Lord and the noble Baroness raised the issue of value for money. As I observed earlier, we are making great strides through the reformation of our business case processes, greater transparency and greater accountability for SROs and our continuous improvement of the skills in defence to tackle these vital decisions. I also mentioned that the Treasury is ever vigilant in watching over what we get up to, and there is new and stringent guidance for all investment decisions, including major programmes.

The noble Baroness, Lady Smith, raised the matter of our allies and, specifically, the matter of China, and that is a very important issue. When you have allies—obviously, one of our most important alliances is NATO —the one thing that you want to reassure your partners in any alliance about is that you are serious about the commitment that you are being asked to make. I think that this White Paper will demonstrate to our allies that we are absolutely serious. As she knows, we are the second-biggest contributor to NATO and the biggest spender in Europe on defence. The White Paper simply cements and corroborates our commitment to defence—not just to talk about it but to put our money where our mouth is and deliver the things that absolutely matter to meet the new and different threats we face, which are of a character we have not previously been familiar with.

In relation to China, which the noble Baroness specifically raised, I think that she posed the question whether it should be trade or defence. I think, actually, there is room for both. It seems to me that it is necessary, as we propose to do with an enhanced forward presence and forward engagement, to make it clear that our presence is serious. We seek to influence and to avoid conflict arising, and by our influence we contribute to that end. But it is also important, if we are to understand what one of the major global powers is doing, that there has to be another relationship, both diplomatic and economic, and that relates to trade.

I hope that I have answered all the points that the noble Lord and the noble Baroness raised. If I have overlooked anything, I undertake to write.

[The Deputy Speaker (Baroness Henig) (Lab)]

We now come to 20 minutes allocated for Back-Bench questions. I ask that questions and answers be brief so that I can call the maximum number of speakers.

[Lord Boyce (CB) [V]]

My Lords, we should all broadly welcome the defence Command Paper, which puts our Armed Forces in a much better position than they found themselves in after the last two defence reviews. Noble Lords will note the emphasis on a stronger global maritime strategy and persistent forward presence, which should be applauded. However, the workhorses of delivering such a strategy—our destroyers and frigates—are to be reduced from the presently inadequate 19 to 17. The Minister will no doubt attempt to reassure your Lordships about the new Type 26 and Type 31 escorts coming online, but these are years away from becoming operational. Would she agree that every effort should be made to coerce the shipbuilding industry, which the Command Paper extols, to expedite their delivery? The length of time given to build these ships is lamentable.

[Baroness Goldie (Con)]

I thank the noble and gallant Lord. He raises an important point. I would observe that, across the piece, the programme for shipbuilding over the next 10 to 15 years is exciting and substantial. On our immediate ambitions, as the noble and gallant Lord said we are building eight Type 26 frigates on the Clyde and currently assembling five Type 31 frigates in Rosyth. These are important shipping orders. They are doing well, as far as I am aware. They are coping well with the challenges that we have seen over the last year. We certainly anticipate delivery on time.

The noble and gallant Lord will also be aware that we will probably mothball some of the Type 23s which have not been operational. He mentioned a figure of 17, but I would far rather have 17 workable, operational frigates that we can call on than a notional figure of something else with perhaps only 14 being operational. At least we are now much clearer on what we have, and that these things will be working and can be deployed when we need them. Looking at the transition is not to get the whole picture; you have to look at the overall future. As he is aware, that means Type 26 and Type 31 frigates, and eventually Type 32s, as well as fleet solid support ships, six multi-role support ships, an LSD(A) and a multi-role ocean surveillance ship. There is a really exciting package of shipbuilding in there that I hope my friend, the noble Lord, Lord West, will also be excited about.

[Lord Trefgarne (Con)]

My Lords, it is good to ask a supplementary question on this after seeing my noble friend Lord Younger on the Front Bench, because I had the privilege of serving in the Ministry of Defence under his late father. I ask my noble friend the Minister whether the policy of continuous at-sea deterrence remains in place. There has been some press comment recently about some industrial difficulties at Faslane and Coulport, which might risk that policy. By continuous at-sea deterrence, I of course mean that, at every hour of every day of every night, somewhere in the world, one of our Trident submarines is on patrol ready to respond, should our supreme national interest so require it.

[Baroness Goldie (Con)]

Without hesitation, I reassure my noble friend that such is the case; the continuous at-sea deterrent is just that. It has been doing that important job without interruption. I am aware of his concern about industrial action and understand that it is under control and will not obstruct the operation of our CASD.

[The Lord Bishop of Portsmouth [V]]

My Lords, there is much to be welcomed in the defence Command Paper and the integrated review. As the Bishop of Portsmouth, I particularly welcome the ambitious signals to British shipbuilding for the Navy. However, I worry that, noting the tilt to the Indo-Pacific and expansion of Britain’s geographical scope into Africa, the integrated review does not suggest reducing the UK Government’s commitments anywhere, yet the proposed cuts to the Armed Forces mean the smallest full-time Army for centuries. Size is not everything, but are we asking too much of the Armed Forces? Do we risk overstretch? We seem to be gaining commitments, while failing to resource the resolution of existing challenges. Can the Minister indicate how the Government intend to flesh out their order of priorities?

[Baroness Goldie (Con)]

I reassure the right reverend Prelate that, as he is aware, we currently engage in activity in Africa, partly with the United Nations and partly with other allies. That is where we help in trying to defeat terrorism and assist with capacity building. We are satisfied that the plans we have laid out are not just capable of discharging our existing obligations but, because of the focus that we have on a reconfigured and different kind of military force, make us better placed to deal with some of the challenges that we are facing. The right reverend Prelate is aware of the exciting vision for the Army, which involves a number of changes, not least brigades with specific functions and the creation of the Ranger regiment. It is marginally smaller, because the change is not hugely significant, but this regiment is going to be fleet of foot, highly trained, with a professional focus, and the right equipment and technology, so that we can have it where we need it quickly, doing the job that it is required to do.

[Lord Snape (Lab)]

Can the Minister tell us whether the latest reduction of our Armed Forces will have any impact on the type of operation that the British military conducts in future? Can she confirm that the Trident replacement programme will be subject to a separate debate and possibly a vote, in the other place? I remind her that, before the last election, the Prime Minister said that he would not be

“cutting the armed services in any form”.

What does this review mean if it is not a cut?

[Baroness Goldie (Con)]

The review means that we have recognised the pace of change to both the intensity and the character of the threat. The noble Lord is aware that it is now in a multidimensional form with which we were not familiar 10, 15 or even five years ago. It requires us to respond with resilience and flexibility, not rigidity. That is why it is no longer appropriate to measure effectiveness by mass. We need to measure the skills and talents that we have, the swiftness of response, the professionalism of our training, the equipment and the technology. That is the sensible and intelligent way to respond to the new character of the threat.

[Baroness Miller of Chilthorne Domer (LD) [V]]

Can the Minister explain the logic of increasing our reliance on nuclear weapons and decreasing our conventional forces given that this increases the danger of nuclear proliferation, and can she say how a 40% increase in our nuclear capacity is compliant with Article 6 of the nuclear non-proliferation treaty?

[Baroness Goldie (Con)]

I have already indicated to your Lordships why we consider maintenance of a credible minimum nuclear deterrent to be absolutely essential, and it is our judgment that the increase in warheads is essential to underpin that. That is not escalating nuclear weaponry but simply ensuring that the deterrent as it currently exists is adequately supported and capable of doing the deterrent job which it is there to do. We are satisfied that we are compliant with the non-proliferation treaty; of the stated nuclear stockpile nations, we have the lowest stockpile.

[Lord Craig of Radley (CB)]

My Lords, the innovative, offensive National Cyber Force taking shape with defence SIS and GCHQ participation will presumably involve the ministerial responsibilities of both the Foreign Secretary and the Defence Secretary. To which Minister and which senior military or civilian officeholder will the commander of this force be primarily responsible, and indeed, has the appointment been announced?

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[Baroness Goldie (Con)]

The noble and gallant Lord is quite correct that this is a shared departmental responsibility. I am unable to say whether the command structure has been identified but I shall inquire about that and undertake to write to him.

[Lord Lang of Monkton (Con) [V]]

[Inaudible]—review, which I warmly welcome. The proposals for Army numbers stand out alarmingly, and that is the cause of my plea. The Army is the enduring core of national defence, the glue that holds combined operations together, yet another reduction—this time of over 12.5%—will mean that it will have halved in size over the last 30 years. That does not seem credible to me, and credibility is vital both as a deterrent—deterrence applies not just in nuclear—to potential enemies and as a reassurance to allies, yet our Army will be smaller than those of France, Italy, Spain and Germany. Does the Minister agree that defence needs more than platforms and robots, that boots on the ground will always be needed, and that hollowed-out battalions and a hollowed-out Army are neither efficient nor inspiring of confidence? Will she carry this message to the Government? A drone can assist a soldier on the ground, but it cannot replace him.

[Baroness Goldie (Con)]

We are aware that much of the conventional and traditional format of the military again has been overtaken by technology. We have seen, for example, what can happen to traditional types of metalwork armoured vehicles made possible by the interception and attack of unmanned drones. We have to recognise that, because of technology, many members of our Armed Forces are now able to do things with fewer people that they could not do in years gone by. What absolutely matters is that we have the skill, resilience, flexibility, technology and equipment to ensure that our Armed Forces are absolutely able to operate at their best, and that means that much of what we depended on before for numbers of boots on the ground has been superseded by innovation and new developments. However, our Armed Forces will be crack forces doing an important job.

[Lord West of Spithead (Lab)]

My Lords, the integrated review and this defence paper are extremely important documents. To pick up the Government’s wording, they are critical to the “sovereignty, security and prosperity”—and possibly the survival—of our nation. That is so important that to have two repeat Statements in the last dog watch, one each week, is really not very appropriate. I know that the noble Baroness agrees that there should be a debate. We need to push this harder. It is a disgrace that this Chamber, with its deep reservoir of knowledge, will not have a proper debate. This really needs to be pushed. The survival of this nation, possibly—its sovereignty, its security? It is not good enough that it is not discussed.

In the few seconds I have left, I will add that, after 56 years on the active list, I have often been told about jam tomorrow, and too often it has turned to margarine. I am very worried that the cuts we are having will not be covered by jam in the future. Jam disappears: it has a habit of doing that.

My final question is on numbers of people. Will the work being done by the noble Lord, Lord Lancaster, on reserves, provide the men who will be needed for MACP, resilience, disaster relief et cetera around the UK, because the regular services will not be able to do that?

[Baroness Goldie (Con)]

I say to the noble Lord that business in the Chamber is not my responsibility; it is the responsibility of his and my colleagues, working through the usual channels. Your Lordships will all be aware that an extraordinary amount of time in the Chamber has, rightly, been deployed on the consideration of the consequences of a pandemic, not least in relation to health issues, social support and related educational and broader welfare issues. This Chamber has been coping with a lot. I have welcomed the idea of a debate. The noble Lord referred to two Statements in quick succession. No one is more aware of that than I am: tonight will be a busy night for me, and I look forward to further engagement tomorrow.

On the “jam tomorrow” charge, I would say that it is perfectly clear from the figures disclosed by the Government that there is jam today waiting to be invested. There is an exciting programme of investment, there is a vision and a strategy set out. I think it is relevant and, at last, meeting the threat that we face: that rapidly changing, very diverse, different threat from that which many of us have previously known. It is a new world, and this is an exciting response by the Government and the Ministry of Defence to that world.

[Lord Campbell of Pittenweem (LD)]

My Lords, as the noble Baroness mentioned Lossiemouth, and as I had the good fortune to be the Member of Parliament for RAF Leuchars for some 28 years, let me ask her a question about the Royal Air Force. Why have the Government refused in this review to commit to purchase any more F35 Lightning aircraft? Does this mean that, as will be the case when the carrier “Queen Elizabeth” deploys to the Far East in the summer, it will always have to rely in part on American aircraft and United States Marine Corps pilots?

[Baroness Goldie (Con)]

As the noble Lord is aware, we have a partnership at the moment with our American friends, who provide support to the carrier. That is a matter of merit; it is about alliance, friendship and interoperability, and we should understand that. The Government’s commitment is to increase the fleet size of Lightning beyond the 48 aircraft of which we are aware. I hope that reassures the noble Lord.

[Lord Dannatt (CB) [V]]

My Lords, now that the Regular Army is once again to be reduced in size in order to provide additional funds for the defence equipment programme, can the Minister give an idea of the thinking within the Ministry of Defence about increasing the size of the Army should the Government of the day wish to take part in a large operation, such as the two Gulf wars, or an enduring operation, such as those in Iraq and Afghanistan? My concern is that the future may not look how we might wish it to look; however, history has a habit of repeating itself.

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[Baroness Goldie (Con)]

I say to the noble Lord, whose experience in these matters I hugely respect, that we have to look at the future very much on the basis of working with partners, friends and allies. We also want to look at a future where, with a forward presence, we hope to avert the possibility of conflict; it is far better to do so than to go to war. It is also better to be a presence, perhaps assisting and facilitating a diplomatic intervention which may be critical in such avoidance. The noble Lord will be aware that the MoD always has to be cognisant of what may be around the corner, and, certainly, that is part of our longer-term strategy for keeping that resilience to be able to cope with what may be in front of us.

[Lord Robathan (Con)]

My Lords, it is a great pity that this thoughtful and considered defence review should be so spoilt by the unwise and, I think, dangerous decision to reduce substantially the size of the Army, to the consternation of our allies, the satisfaction of potential adversaries and, I fear, to the detriment of both the Armed Forces and our defence. However, I shall not bang on about that; instead, I shall ask my noble friend the Minister, who knows about these things, about another threat to the United Kingdom entirely—namely, the threat to the union. To what extent can this new Command Paper assist in bolstering the union of the United Kingdom?

[Baroness Goldie (Con)]

I am very grateful to my noble friend for raising something of critical importance because we in this Chamber are all aware that the MoD depends greatly upon the presences that we have throughout the United Kingdom. I mentioned Lossiemouth in Morayshire earlier, and of course we also have the submarine headquarters base at Faslane, RAF Valley in Wales and, obviously, numerous significant presences in England and, to some extent, in Northern Ireland. My noble friend is absolutely correct: we need these strategic presences within the union, but, actually, I argue that these nations need the MoD. For example, the spread of personnel in Scotland—regulars, reserves and civilians—totals just over 18,500; in Wales, that spread totals 4,940, and in Northern Ireland it is 4,620. That is before we look at jobs supported by industry expenditure: in Scotland there are 12,400, in Wales there are 5,700 and in Northern Ireland there are 500. That denotes how invaluable the devolved nations are to the MoD, as is the whole of the UK, including England—and it denotes how they benefit from that MoD investment in them.

[Lord Reid of Cardowan (Lab)]

My Lords, we have always maintained that the purpose of our nuclear weapons is nuclear deterrence, not war fighting. That is reflected initially on page 76 of the Command Paper, but it goes on to say:

“However, we reserve the right to review this assurance if the future threat of weapons of mass destruction, such as chemical and biological capabilities, or emerging technologies”—


I assume that this includes cyber—

“that could have a comparable impact, makes it necessary.”

In other words, in three sentences, we have shifted to a position where we are apparently prepared to use nuclear weapons in response to any form of aggression. Does the Minister understand that huge step away from deterrence and towards war fighting with nuclear weapons? Does she realise the Pandora’s box that that will open if the Government proceed?

[Baroness Goldie (Con)]

The protocols surrounding nuclear weapons have been widely understood. They exist as a deterrent and to do that job in the hope that they never have to be used. I said earlier that the test of a deterrent is just that: has it deterred what it is supposed to? The current deterrent has done that for well over 60 years. It is the deterrent aspect that is all-important, and that makes it an effective presence within our MoD capability.

[The Deputy Speaker (Baroness Henig) (Lab)]

The time for questions has now elapsed.

Overseas Operations (Service Personnel and Veterans) Bill

Baroness Goldie Excerpts

Committee stage
Thursday 11th March 2021 Lords Chamber

[Baroness Smith of Newnham (LD) [V]]

My Lords, the noble Baroness, Lady D’Souza, suggested that this Bill divides your Lordships’ House into two parts: those who wish to see the Bill disappear in its entirety and those who wish to amend it substantially. I think that the situation might be a little more nuanced than that, but like the noble Baroness, I would place myself in the camp who believe that the Bill should probably go through, but heavily amended.

On this occasion, I want to associate myself with the suggestion that Clause 12 should not stand part. Obviously, my noble friend Lord Thomas of Gresford has signed that he will suggest that it should not stand part, alongside the noble and learned Lord, Lord Hope of Craighead. On Tuesday, the noble Baroness, Lady Jones, rather hoped to kill the Bill. I think that removing this clause is important. It is neither necessary nor desirable, as almost all noble and noble and learned Lords who have spoken already have pointed out.

Some severe issues are raised by this clause, in part about what message we are sending internationally. The United Kingdom left the European Union last year. We have said that, as a country, we still respect human rights and the rule of law and that we wish to play a global role. We are still an active player in NATO and in the United Nations, but what message are we sending if we say, “We might want to derogate from the European Convention on Human Rights”? Do we really want to derogate from human rights laws? Is this not a siren call? Is there not a danger that this is trying to speak to a domestic audience? I know that the Minister does not like the concept of lawfare and that she does not care for the term. However, in some ways, the clause as it stands and the amendment tabled by the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Faulks, seem to suggest that this is about speaking to an audience that wants to say, “We should not be too worried about human rights. Let us strike down some of these rules.” Surely our role in the international arena should be precisely that of supporting human rights. We will not do that by derogating from the European Convention on Human Rights.

As various noble and noble and learned Lords have already pointed out, in particular the noble and learned Lords, Lord Falconer of Thoroton and Lord Hope of Craighead, this clause is unnecessary because it is already possible to derogate. Can the Minister explain why she feels that it is necessary? If there is no good reason, the Liberal Democrat Benches will certainly not support the clause.

However, there is always a danger that, however much we might want to remove a clause, it cannot be done and amendment to it might be more appropriate or feasible. To that end, it is clear that Amendment 26 tabled by the noble and learned Lords, Lord Falconer and Lord Hope, my noble friend Lord Thomas and the noble Baroness, Lady D’Souza, is important. If derogations were to be proposed, it is clear that the appropriate people to make that decision are parliamentarians. It is hugely important that the Government should remember the appropriate relations between the institutions of the Executive, the legislature and the judiciary. At times over recent months and years, it has appeared that Her Majesty’s Government seem to think that only the Government should make decisions. If any derogations were to take place, they should be brought forward for a decision on an affirmative vote by both Houses of Parliament. I strongly support Amendment 26.

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

My Lords, I thank the noble and learned Lord, Lord Falconer of Thoroton, for the informed proposal in his amendment and other noble Lords for their genuinely thought-provoking contributions. I will try to address them in detail, although I realise that to the perception of some I may do so inadequately.

Amendment 26 would require designated derogation orders proposed by the Government in relation to overseas operations to be approved by Parliament before being made. It is important to begin by repeating the fact that, as some noble Lords have noted, the Government already have the power to derogate some aspects of the ECHR without reference to this Bill, and the Bill will not change that. The noble and learned Lord, Lord Falconer, is correct that the bar is set high to justify derogation, but it can still be done. It is important to remind noble Lords that Parliament already has a crucial role in approving any derogation decision. It is not the intention of this Bill to change the existing robust processes which the Government and Parliament follow if and when a decision to derogate has been made.

The noble and learned Lord, Lord Falconer, and my noble friend Lord Faulks asked why we have Clause 12. The clause merely ensures that all future Governments will be compelled to consider derogating from the ECHR for the purpose of a specific military operation. There is no sinister or malign agenda here, as was implied by the noble Baroness, Lady Chakrabarti. This does not create new law in relation to the ECHR or the procedures for designating a derogation order. In effect, it puts the intent of the 2016 Written Ministerial Statement on to a statutory footing and it will ensure that operational effectiveness can be maintained, for example, by enabling detention where appropriate for imperative reasons of security in a time of war or other public emergency threatening the life of the nations.

It is worth reflecting on the procedure that attends a derogation from the ECHR. If such a decision is ever made, the Human Rights Act requires that the Secretary of State must make an order designating any derogation by the UK from an article or a protocol of the ECHR. The Secretary of State must also make an order amending Schedule 3 to the Human Rights Act to reflect the designation order or any amendment to, replacement of or withdrawal from that order. Crucially, for those concerned that Parliament does not have a say in the process, I would remind noble Lords of the procedures that are already in place. A designation order to derogate ceases to have effect—it evaporates effectively—if a resolution approving the order is not passed by each House of Parliament within 40 days of the order being made. This means that both Houses will always be able to approve or reject any derogation order within 40 days of a decision. That is the process and these are the procedures.

In addition to the requirements laid out in the Human Rights Act 1998, the Government must also communicate a decision to derogate to the Secretary-General of the Council of Europe. This should include details of the measures taken and the reasons for taking them. The Secretary-General should also be informed when derogations have ceased. These existing measures provide for the appropriate level of parliamentary debate and approval of a decision to derogate. To the best of my knowledge, successive Governments have not sought to change that. I am sure that the noble and learned Lord, Lord Falconer of Thoroton, and the noble Lord, Lord Thomas of Gresford, will correct me if I am mistaken.

However, requiring a parliamentary debate on a decision to derogate ahead of time, instead of after it is made, as Amendment 26 proposes, could undermine the operational effectiveness of MoD activity or compromise covert activity that we would not wish hostile operators to be aware of. It is generally accepted, without reference to derogation powers, that military action must at times be taken without gaining the prior consent of Parliament—for example, in situations where the Government’s ability to protect the security interests of the UK must be maintained, and in instances when prior debate and disclosure of information could compromise the effectiveness of our operations and the safety of British service personnel. I submit that the same principles apply here: requiring a debate before an order is made could, similarly, have a detrimental impact upon operational effectiveness. It would effectively shackle the MoD, preventing it from doing what it needs to do, when it needs to do it. It would defeat the purpose of derogation in relation to overseas military operations, which should enhance operational effectiveness. I cannot believe that the noble and learned Lord, Lord Falconer of Thoroton, would wish to impose that stricture. I therefore urge him to withdraw his amendment.

Although I have argued against the proposal from the noble and learned Lord, Lord Hope of Craighead, that Clause 12 should not stand part of the Bill, it has more logic than Amendment 26. I wonder if it is a mischievous stratagem to make the Government look at Clause 12 again. I listened to the noble and learned Lord with great care and I will look at his arguments again. When they are advanced with the lucidity with which he is rightly associated, they have an allure.

Amendment 27, in the name of my noble friend Lord Faulks, is intended to prevent claims connected with overseas operations being brought in England and Wales under the Human Rights Act, whether from service personnel, local nationals or any other claimant. I thank my noble friend for an incisive analysis of the ECHR and the Human Rights Act. He rightly identified the need to bring clarity to an issue that has been dogged by uncertainty and the divided opinion of senior legal personnel. His analysis and conclusions richly inform the debate around the ECHR and the Human Rights Act, but I will comment on his amendment, which I thought was unfairly characterised by the noble Lord, Lord Thomas of Gresford. The noble Baroness, Lady Smith, was a little more charitable. I detect that she is warming to the Bill, albeit with reservations.

In relation to Amendment 27, the Human Rights Act’s extraterritorial application mirrors the scope of extraterritorial jurisdiction under the European Convention on Human Rights. Therefore, it is important to note that, whatever the position under domestic legislation, as a signatory to the ECHR, to which the UK remains committed, we would still be under an obligation to ensure compatibility with the convention. My noble friend acknowledged that. We would still need to provide an effective route for people to bring claims in the United Kingdom in relation to any alleged breach of their convention rights. This was recognised by Professor Ekins during the House of Commons committee’s evidence-gathering session for this Bill.

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[Lord Craig of Radley (CB) [V]]

My Lords, the Minister has reminded us that, when Defence Secretary, Michael Fallon said:

“before embarking on significant future military operations, this government intends derogating from the European Convention on Human Rights, where this is appropriate in the precise circumstances of the operation in question.”

In her letter of 26 February, the Minister indicated that Clause 12 was included to reflect this undertaking. Significantly, Clause 12 does not give the same weight to a decision to derogate as was indicated by Mr Fallon. If that is what is intended, should it not say so in words that reflect the commitment explained by Mr Fallon? What is the Government’s intention? Is it to seek to have in place an effective form of combat immunity for active operations overseas? That would be welcome but, at present, as many noble Lords have said, Clause 12 seems worthless and should not form part of the Bill.

[Baroness Goldie (Con)]

The Bill has been drafted to reflect the overall policy intentions to try to reassure our service personnel that, before overseas operations are committed to, careful thought is given to them. As the noble and gallant Lord understands, because of the deliberate way that the Bill is drafted, the impact of Clause 12 is merely to consider, not to compel, derogation. I simply repeat my undertaking to the noble and learned Lord, Lord Hope of Craighead: I will look very carefully at these arguments.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I apologise to the Minister for not putting this short question clearly enough in my earlier remarks. Do the Government agree that the new duty in Clause 12, which would become the new Section 14A of the Human Rights Act, on the Secretary of State to consider derogation a judicially reviewable duty? Will it be, as I suspect it will, open to challenge in relation to the Secretary of State’s considerations, so that litigants will be able to judicially review the adequacy of the considerations, whether or not the operations were significant, and the Secretary of State’s decision not to derogate—or, indeed, to derogate—in relation to every single potential overseas operation?

[Baroness Goldie (Con)]

The way in which I anticipate Clause 12 operating is that it is simply an ex facie reminder on the face of the Bill that a Secretary of State, if he were contemplating an overseas operation, should consider derogation. I suggest to the noble Baroness that thereafter, the existing law would govern whatever subsequent activity took place and whether or not the designated derogation order was deployed. The law is there and it is clear as to what is to be done. I think the acceptance of ministerial power to make these decisions is understood. As I have said before, that is with reference to parliamentary scrutiny, which has a very public capacity to call Ministers to account. I therefore merely ascribe to Clause 12 a reassurance that a Minister will give thought to this, but is not obliged to derogate.

[Lord Falconer of Thoroton (Lab) [V]]

[Inaudible.] The noble Baroness, Lady Chakrabarti, asked an incredibly clear question and I think the House is entitled to an answer. Would an exercise of the power to derogate in accordance with this new section of the Human Rights Act be judicially reviewable? Although the Minister gave a long answer, she did not answer the question directly. I can understand why she feels uneasy about answering it without a clear steer from officials, but I think it would be appropriate if she wrote to the noble Baroness, Lady Chakrabarti, and the rest of us with the answer to that very important question.

I thank the noble Lord, Lord Thomas of Gresford, the noble Baroness, Lady Chakrabarti, the noble and learned Lord, Lord Hope, and the noble Baronesses, Lady Whitaker and Lady Smith of Newnham, for their support for Amendment 26 or for the clause not standing part. I also note that the Minister said on behalf of the Government that they would consider the allure of the argument of the noble and learned Lord, Lord Hope, that this clause should not be part of the Bill at all. I am grateful for that and I think the House will be interested to hear her conclusions.

The speech of the noble Lord, Lord Faulks, was interesting but broadly irrelevant to Amendment 26 and whether the clause should stand part. I understood him to say that actually, the problems that have arisen in relation to overseas operations will never be addressed in any real form by any sort of possible derogation under the Human Rights Act, and that he could not therefore see what derogation has to do with the problems the overseas operations Bill is addressing. He then went on, in an interesting speech which I profoundly disagree with, to say that the problem is not whether or not derogation is possible but whether or not the Human Rights Act should extend to overseas operations generally.

The noble and gallant Lord, Lord Craig of Radley, absolutely put his finger on it when he asked the Minister, if derogations are not intended—if derogations cannot give combat immunity—what is the point of them? As the noble and gallant Lord pointed out, it is plain from what the Government are accepting has been said in this debate that combat immunity is not on offer from derogation. I strongly urge the Minister to drop this clause, because it is a pretend clause. It pretends that derogations can help with the problem this Bill seeks to address, when they plainly cannot.

I beg leave to withdraw Amendment 26.

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[Baroness Goldie (Con)]

I am grateful for the opportunity to comment. When I responded to the noble Baroness, Lady Chakrabarti, I did not have before me specific information relating to her question. I am now informed by my officials that if there were a derogation under Clause 12—or, presumably, a decline to derogate—this could be subject to a judicial review. I thought it preferable to share that with the House at this stage. That is without prejudice to my previous remarks that I undertake to consider everything that has been said in the debate, perhaps most significantly by the noble and learned Lord, Lord Hope of Craighead.

Amendment 26 withdrawn.

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[Lord Thomas of Gresford (LD) [V]]

My Lords, this is a very important amendment and I support it thoroughly. I should declare to your Lordships that I am still chairman of the Association of Military Court Advocates. Although I am not in receipt of legal aid in respect of any case at the moment, I have received legal aid on many occasions in the past. In my experience, the legal aid authority was excellent, probably ahead of its civil counterparts in supporting counsel and solicitors who were defending servicemen, whether in this country or abroad.

There are particular circumstances that apply in this field which do not apply in ordinary civil practice. First, there are a limited number of military court advocates, mostly people who have some experience of the service. Secondly, the courts are at a distance. Catterick and Bulford—or occasionally Colchester—are at opposite ends of the country. There is also a very experienced military lawyer in Northern Ireland who deals with issues that derive there. In addition to court appearances, it is necessary to give protection to soldiers facing charges and to Air Force and Navy personnel. It is necessary to be in at the beginning, which requires driving long miles to various bases to be present at interviews, to be present when a person is charged and to give advice. There are particular exigencies in this type of practice. Full support from legal aid, which in my experience has been given in the past, is essential for the system to work well. As in every part of the justice system where people are properly represented, a fair result is likely to be arrived at.

[Baroness Goldie (Con)]

My Lords, again I thank the noble Lord, Lord Tunnicliffe, for raising this issue. I have looked at his proposed new clause in Amendment 30, which would indeed require the Government to commission and publish an independent evaluation of legal aid for service personnel and veterans in relation to the criminal legal proceedings covered by the Bill. I repeat the assertion to which the noble Lord himself referred: the MoD has a long-standing policy that, where a serviceperson or veteran faces criminal allegations in relation to incidents arising from his or her duty on operations, the MoD may fund their legal support and provide pastoral support for as long as necessary. We offer this because it is right that we look after our Armed Forces, both in the battlefield, where they face the traditional risk of death or injury, as well as in the courts, particularly if they face the risk of a conviction and a possible prison sentence. Because of the risks our service personnel and veterans face, our legal support offer is very thorough. I will set out some of its provisions.

The legal aid provided by the Armed Forces legal aid scheme provides publicly funded financial assistance for some or all of the costs of legal representation for defendants and appellants who, first, appeal against findings and/or punishment following summary hearings at unit level, including applications for extensions of the appeal period by the Summary Appeal Court, for leave to appeal out of time. Secondly, it covers those who have a case referred to the Director of Service Prosecutions for a decision on whether the charges will result in a prosecution. This includes offences under Schedule 2 to the Armed Forces Act 2006 referred directly to the Director of Service Prosecutions by the service police, as well as matters referred to the Director of Service Prosecutions by the commanding officer. Thirdly, it covers those who are to be tried in the court martial of the Service Civilian Court; fourthly, those who wish to appeal in the court martial against the finding and/or sentence after trial in the Service Civilian Court; and, fifthly, those to be tried in a criminal court outside the UK.

If I have not responded to all the questions asked by the noble Lord, I apologise, and I shall look at Hansard and attempt to respond further. I will explain that the legal aid scheme applies equally to all members of the Armed Forces, including the Reserve Forces when they are subject to service law, as well as to civilians who are or were subject to service discipline at the time of an alleged incident. Importantly, this system is based upon the same basic principles as the civilian criminal legal aid scheme in England and Wales. The Armed Forces scheme is designed to mirror the civilian scheme while making necessary adjustments to take into account the specific circumstances and needs of defendants and appellants in the service justice system.

As a result of that system, I am confident we already ensure service personnel and veterans are properly supported when they are affected by criminal legal proceedings. A review of legal aid, as proposed by the amendment, is unnecessary, given how comprehensive our legal support package is. In these circumstances, I urge the noble Lord, Lord Tunnicliffe, to withdraw his amendment.

[Lord Tunnicliffe (Lab) [V]]

My Lords, I thank my noble friend Lady Chakrabarti and the noble Lord, Lord Thomas of Gresford, for their support in this area. Turning to the speech by the noble Baroness, Lady Goldie, which I shall read with care, it seems we are not grasping the circumstances of this Bill. The situation is about overseas operations and the problems of defending oneself against criminal action in some overseas theatre—vastly more difficult than in the parallel civilian situation in the UK. I note she said the support “may” be provided. The Minister may mean “always”, but for servicemen that word sounds like “perhaps,” like some or all of the necessary support only “may” be provided.

We should think back to who we are talking about. Service personnel are different from ordinary citizens. I was involved, when Labour was in power, with drawing up the first statutes to cover slavery. When we had got over the shock that we had to try and define slavery, we suddenly realised that we had to have some exceptions. One of them was the Armed Forces, because we expect absolute loyalty from our Armed Forces, including to the point of dying. That is a very special loyalty. Surely, when they are caught up in difficult situations, there should be almost absolute support in defence of them to make sure, in all the subsequent legal action and the necessary support—which will be coming in the next group—that they lack for nothing, ensuring both that they are pastorally supported and that there is sufficient legal support for there to be a genuine equality of arms.

I will look at the noble Baroness’s response with care and listen to her response to the next group. In the meantime, I beg leave to withdraw the amendment.

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[Lord Tunnicliffe (Lab) [V]]

My Lords, we stand four-square behind our troops and, therefore, four-square behind Amendment 31. We want to work with government and colleagues from across the House to get this legislation right. Our country owes a huge debt to our service personnel, yet many have not got the pastoral, mental and well-being support that they require when it is most needed.

Troops and their families who have been through the trauma of these long-running investigations have too often felt cut adrift from their chain of command and the Ministry of Defence. As the noble Lord, Lord Dannatt, said, this gap was clearly identified by multiple people in Committee in the other place, but it has not been identified in the Bill.

When asked if the MoD had offered any support when he was facing eight criminal charges, Major Campbell said: “No, there was none”. General Sir Nick Parker said that

“one of the key things that we have to do is to produce mechanisms that establish a really effective duty of care for those who are placed under the spotlight by malicious claims.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 96.]

He stated that, as drafted, the Bill does not do this.

When asked if the MoD does enough to provide a duty of care to those service personnel who go through investigations and litigations, BAFF executive council member Douglas Young said:

“In our opinion, the answer is no ... we are simply appalled by the experiences of some people who have absolutely been through the wringer for many years.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 6/10/20; col. 5.]


Lieutenant Colonel Chris Parker said that there was certainly a need for

“a broad duty of care with some resourcing for the impact on families and the individuals themselves … It is something that the MoD would have to bring in.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 108.]

The MoD has let down too many personnel with a lack of pastoral, mental health and legal support when they face investigations and pursue rightful compensation. For every member of the Armed Forces who does not receive the proper support and advice during an investigation or litigation, it is not only sad but a failure of the MoD’s responsibility to its employees. We cannot deny that the MoD has lost trust among our brave service personnel, and a statutory duty of care, with regular reporting to Parliament, is a key step in rebuilding that trust. Only then will personnel have the confidence that the MoD will be on their side and support them through the difficulties and stress of an investigation or litigation.

We owe it to our excellent Armed Forces to do better. The MoD owes it to them to provide a statutory duty of care standard for legal, pastoral and mental health support, and that is why we strongly support this amendment.

[Baroness Goldie (Con)]

My Lords, this has been an important debate, and I want to thank the noble Lord, Lord Dannatt, for his careful presentation of his amendment, which covers a very important issue. I also thank him for his supportive commentary on the Bill.

Amendment 31 proposes that the Ministry of Defence should establish a “duty of care standard” for current and former service personnel and, where appropriate, their families, and that the Secretary of State should be required to report on this annually. I have looked at the specific components of the amendment, and I hope that I may be able to provide some reassurance to the noble Lord and those other noble Lords who raised genuine concerns.

I start by saying that we take extremely seriously our duty of care; the noble Baroness, Lady Smith of Newnham, rightly identified that important component of how the MoD deals with its personnel. We do take it extremely seriously; we have a duty of care to our personnel, and pastoral and practical support will always be available to them. In particular, veterans of events that happened a long time ago may have particular support requirements and concerns, in which case we can put in place special arrangements for them.

The noble and gallant Lord, Lord Stirrup, spoke eloquently about the effect on personnel of repeated investigations and accusations, as did the noble Lord, Lord Dodds of Duncairn, my noble friend Lord Faulks and, just recently, the noble Lord, Lord Tunnicliffe. We have a responsibility to take reasonable care to ensure the safety and well-being of our personnel.

I covered the comprehensive legal support that we already provide to service personnel and veterans in relation to legal proceedings during our previous debate, so I will not repeat them here. I noted that the noble Lord, Lord Burnett, was rightly concerned about such provision, but I trust that, if he looks at the remarks that I made in the earlier debate, he may feel reassured.

In terms of mental health, welfare and pastoral care, a range of organisations are involved in fulfilling the needs of personnel, which will vary according to individual need and circumstance. The potential impact of operations on a serviceperson’s mental health is well recognised; the noble Lord, Lord Burnett, spoke powerfully about that. There are policies and procedures in place to help manage and mitigate these impacts as far as possible.

Despite the clear processes for categorising personnel as medically suitable for deployment, it is recognised that an operational deployment can result in the development of a medical or psychiatric condition. Therefore, specific policy and mandated processes exist for the management of mental health and well-being before, during and after deployment. These provide overarching direction on the provision of deployment-related mental health and well-being, with briefings designed to provide enough information about deployment-related mental ill-health to allow individuals, peers and family members to take steps to avoid such an outcome, to recognise the early signs of mental ill-health and to facilitate help-seeking from the right source at the right time.

We also regularly seek opinions from Armed Forces personnel and their families about the level of support. It is important to refer to that, because the MoD is not operating in some kind of vacuum; we actually have very good communication strands with our Armed Forces personnel, and I will cover a number of them. The Armed Forces continuous attitude survey—AFCAS—is an annual survey of a random sample of service personnel. The 2021 survey was conducted from September 2020 to February of this year, and the results are due to be published in May. There are no specific questions relating to legal proceedings, but questions related to welfare support are asked.

Within the welfare section of the survey, questions are asked on satisfaction with the welfare support provided by the service for both the serviceperson and their family, as well as the support that the serviceperson’s spouse or partner receives while the serviceperson is absent. Questions are also asked about operational deployment welfare package for service personnel.

Questions on satisfaction levels with the variety of welfare support systems in place are also asked, with the list unique to each service—for example, families federations, welfare teams, officers, community support teams, et cetera. Further questions within the deployment section ask for satisfaction levels with welfare support received by both service personnel and their families when the serviceperson returns from their last operational deployment. We also have the annual families continuous attitudes survey—FAMCAS—for the spouses and civil partners of service personnel. It is in field from January to April and the 2021 report is scheduled for release in July. Again, there are no specific questions on legal support.

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[Lord Tunnicliffe (Lab) [V]]

My Lords, I thank my noble friend Lord Browne, the noble Lord, Lord Clement-Jones, and the noble and gallant Lord, Lord Houghton, for bringing forward this important amendment and debate. I understand my noble friend Lord Browne’s concerns about the mismatch between the future-focused integrated review, which has had long delays but will be hopefully published next week, and the legislation we have in front of us.

Technology is not only changing the kinds of threats we face but changing warfare and overseas operations in general. In Committee in the other place, Clive Baldwin of Human Rights Watch neatly summed this up by suggesting that

“we are seeing a breakdown in what is the beginning and the end of an armed conflict, what is the battlefield and what decisions are made in which country … The artificial distinction of an overseas operation with a clear beginning, a clear theatre and a clear end is one that is very much breaking down.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 6/10/20; col. 67.]

How is this reflected in the Bill?

When the Prime Minister gave his speech on the integrated review last year, he rightly said that “technologies …will revolutionise warfare” and announced a new centre dedicated to AI and an RAF fighter system that will harness AI and drone technology. This sounds impressive but, as my noble friend Lord Browne said, as military equipment gets upgraded, we do not know how the Government plan to upgrade legal frameworks for warfare and what this means in terms of legal protection for our troops.

We must absolutely tackle vexatious claims and stop the cycle of reinvestigations, but how will claims against drone operators or personnel operating new technology be handled? Do those service personnel who operate UAVs not deserve to be protected? And how will legal jeopardy for our troops be avoided?

As new technology develops, so too must our domestic and international frameworks. The final report of the US National Security Commission on Artificial Intelligence stated that the US commitment to international humanitarian law

“is longstanding, and AI-enabled and autonomous weapon systems will not change this commitment.”

Do the Government believe the same?

I would also like to highlight the serious impact on troops who might not be overseas, but who are operating drones abroad. A former drone pilot told the Daily Mirror:

“The days are long and hard and can be mentally exhausting. And although UAV pilots are detached from the real battle, it can still be traumatic, especially if you are conducting after-action surveillance.”


The RUSI research fellow Justin Bronk also said that, as drone operators switched daily between potentially lethal operations and family life, this could be extremely draining and psychologically taxing. What mental health and pastoral support is given to these troops currently? Drone operators may not be physically overseas, but they are very much taking part in overseas operations. With unmanned warfare more common in future conflicts, I would argue that failing to include those operations in the Bill may cause service personnel issues down the line.

I would like to hear from the Minister how this legislation will keep up to date with how overseas operations operate, and whether she is supportive of a review along the lines of Amendment 32—and, if not, why not?

[Baroness Goldie (Con)]

My Lords, first, I thank the noble Lord, Lord Browne of Ladyton, for tabling this amendment, which is fascinating and raises substantial issues. One only had to listen to the informed but very different contributions from the noble Lord himself, the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Chakrabarti, then to a different perspective from the noble and gallant Lord, Lord Houghton of Richmond, and, finally, the noble Lord, Lord Tunnicliffe, to get a flavour of both the depth and the technical complexity of these issues.

There is no doubt that the increasing adoption of new and innovative technologies on the battlefield is changing how military operations are conducted. Gone are the three domains; we are now in the five domains. Military effects can now be delivered in cyberspace, and precision weapons systems can now be operated remotely from the UK and from third countries. I appreciate that the noble Lord, Lord Browne of Ladyton, is motivated by a genuine interest in these new technologies, how they influence military operations and the implications for our Armed Forces personnel involved in overseas operations—and that is an important question to ask.

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[Lord Tunnicliffe (Lab) [V]]

My Lords, I do not know whether it was a sense of exhaustion but, until the noble and gallant Lord, Lord Craig, and the noble Lord, Lord Lancaster, set out what their amendments meant, I did not fully understand them. I understand them a little better now, and we will give them consideration. The noble Baroness, Lady Smith of Newnham, said that they may find a better home in the 2021 Armed Forces Act. The Minister may give an indication of whether that is sensible.

As this is the last group, I will use it to ask this of the Minister. She has committed to writing a positive library of letters; it would help if she could copy them electronically to all noble Lords who have taken part in Committee so that we can all share her wisdom. With that, I thank her and her colleagues, and all noble Lords, for making this a civilised and thoughtful debate over the last two days.

[Baroness Goldie (Con)]

I thank your Lordships for your kind comments and the noble Lord, Lord Tunnicliffe, for his helpful and kind observation. Yes, I will undertake to distribute electronically any letters that have been copied to the Library. I am sorry if that was overlooked and it would have helped him and the noble Baroness, Lady Smith, to be aware of the correspondence that I have entered into.

The amendment of the noble and gallant Lord, Lord Craig of Radley, seeks to consolidate the provisions found in Part 1 of the Bill into the Armed Forces Act 2006. I quite accept that, while consolidation can have real and practical benefits for those who work with the law by making the statute book more accessible, there are many significant factors to consider before drawing together different legislation into a single Act.

One of the principle considerations has to be whether the law concerned is suitable for consolidation into a particular Act. The Armed Forces Act 2006 established a single system of service law that applies to the personnel of all three services, wherever in the world they are operating. It covers matters such as offences, the powers of the service police and the jurisdiction and powers of commanding officers and the service courts, particularly the courts martial.

In contrast to the Armed Forces Act 2006, Part 1 of the Overseas Operations (Service Personnel and Veterans) Bill covers matters relating to the wider civilian criminal justice system and is about decisions made by territorial prosecutors. As we are all now aware, the intent of the Bill is to bring in measures to help reduce the uncertainty faced by our service personnel and veterans in relation to historic allegations and claims arising from overseas operations. For that reason, it is more appropriate to have it as a standalone Act; I feel that that makes clearer the issues to which it is directed and that it seeks to address.

I also observe that, as we are aware, the procedure for the Armed Forces Act is one of regular renewal: a quinquennial renewal by Parliament and, in the interim years, a renewal by a statutory instrument. A consolidation of Bills could make that renewal much more complex, and we have to be cognisant of the implications of that because the last thing that any of us wants is to obstruct or make more obtuse, in any sense, legislation that we believe in—I know that there is universal support for the Armed Forces Act, and I have always enjoyed the renewal debates. We want to make sure that we are keeping our issues clearly distinct and encompassed within appropriate statutes, so that there is a clear identification of what it is that these individual Acts are trying to do.

The noble and gallant Lord, Lord Craig of Radley, has been committed to this objective, and he has been very determined in bringing the matter before your Lordships’ House. I hope that, by my explaining the genuine difficulties and challenges that I anticipate would accompany such consolidation, he will understand that there is more to this than meets the eye. In these circumstances, I trust that he would be prepared to withdraw his amendment.

I will move on to Amendment 35, in the name of my noble friend Lord Lancaster of Kimbolton. It seeks to extend the territorial extent of the Bill to the Isle of Man, the Channel Islands and overseas territories, thereby mirroring the territorial extent of the Armed Forces Act 2006. I know that this is a matter of some importance to my noble friend, and, as he indicated, I have written to him to respond to his concerns about the territorial extent of the Bill. However, I am grateful that he has tabled this amendment because it gives me the opportunity to address this issue with your Lordships.

I say to my noble friend and, in turn, reassure the noble Baronesses, Lady Chakrabarti and Lady Smith—whom I thank for their very kind comments; at this stage in the day, the Minister gets weary and such encouragement is very much appreciated—and all noble Lords that careful consideration has been given to the ways in which the Bill will impact on the British Overseas Territory forces. Some legal background might assist with this.

Overseas Operations (Service Personnel and Veterans) Bill

Baroness Goldie Excerpts

Committee stage & Lords Hansard
Tuesday 9th March 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab) [V]]

The debate has been very impressive. I take this opportunity to make special mention of the noble and learned Lord, Lord Morris of Aberavon. I was Solicitor-General when he was the Attorney-General. As he pointed out, he served in the Armed Forces and was an incredibly effective Attorney-General, and he proved to me that as the Attorney-General you can ensure that the law is complied with in circumstances where you have a profound understanding of the pressures on the military.

There are, in effect, two proposals before the House in this group of amendments. One is to extend the period of presumption from five to 10 years. The other is to get rid of the presumption altogether. This part of the Bill deals only with criminal offences. I think that everybody in the House is of a like mind in the following two respects.

First, Members of the House have no desire whatever to authorise in any way members of our Armed Forces committing very serious crimes, such as crimes against the United Nations convention against torture or any other sorts of war crimes, or murder or manslaughter.

Secondly, and separately, everybody in the House understands the oppression of there being what my noble friend Lady Chakrabarti described as shoddy, lengthy and repeat investigations. Nobody wants our Armed Forces to have to go through shoddy, lengthy and repeat investigations. What I think everybody wants is that there should be timely, effective and thorough investigations, and that when the timely, effective and thorough investigation is completed, the soldier or other military personnel can be confident that that is the end of it.

That is not the position at the moment. The proposal for a presumption against prosecution after five or 10 years does not deal with that problem. The best way to deal with the problem is to have effective investigations and, after the investigation is over, for there to be a limitation in some way on any further investigation unless compelling evidence comes to light that justifies reopening an investigation which the military personnel who is the subject of the investigation can otherwise be entitled to assume is at an end.

I have no idea why the Government are going about trying to deliver on what everybody thinks is a laudable aim—namely, to protect military personnel from shoddy, repeat and inadequate investigations—by this presumption. There appears to be agreement among those who would know that the proposal that is being advanced by the Government does not deal with the problem. Johnny Mercer, in Committee in the other place, said:

“I want to reassure Members that the presumption measure is not an attempt to cover up past events as it does not prevent an investigation to credible allegations of wrongdoing in the past, and neither does it prevent the independent prosecutor from determining that a case should go forward to prosecution.”—[Official Report, Commons, 14/10/20; col. 154.]


Judge Blackett, who used to be the Advocate-General—the chief judge in the military justice system—said:

“a presumption against prosecution would not stop the knock on the door and the investigation. That is the whole point. The presumption against prosecution does not stop the investigation; the investigation happens.”

The noble Lord, Lord Lancaster of Kimbolton, said that we should not be too legalistic about this. I think he meant that we have to produce a solution to the problem. I completely agree. Later amendments in the group make it clear that there should be reinvestigation only where there is compelling evidence. Some of the amendments suggest, for example, that a judge would have to authorise further investigations to give the protection that is required and, in the words of the noble and learned Lord, Lord Mackay of Clashfern, to take away the dark shadow of prosecution.

I am very interested in these amendments. I am very keen to deliver on the purpose of the Bill, as is everybody else. I do not believe that the five-year presumption does that, and I would be very interested to hear the noble Baroness, Lady Goldie, respond to the points made by Johnny Mercer and Judge Blackett as to the fact that the Bill does not deliver on its purpose.

Three other points militate against either the five-year presumption or any presumption at all. First, this will create a special category of defence. It will in effect lead to there being a special category of criminal offences for which there is a presumption against prosecution. John Healey in another place put it very well when he said:

“Let us just step back a moment from the technical detail. This is the Government of Great Britain bringing in a legal presumption against prosecution for torture, for war crimes and for crimes against humanity. This is the Government of Great Britain saying sexual crimes are so serious they will be excluded from this presumption, but placing crimes outlawed by the Geneva convention on a less serious level and downgrading our unequivocal commitment to upholding international law that we in Britain ourselves, after the Second World War, helped to establish.”—[Official Report, Commons, 23/9/20; cols. 997-98.]


We should not be doing what John Healey described. We should be doing what the noble Lord, Lord Lancaster, hopes we should be doing. Let us do it in a direct and effective way rather than in this oblique, obscure and ineffective way.

The second reason why the presumption does not work is that it may be illegal. I would very much like to hear what the noble Baroness, Lady Goldie, has to say about the points made in the Joint Committee on Human Rights’ ninth report of this Session, which says that it offends against Articles 2 and 3 of the European Convention on Human Rights, the United Nations Convention against Torture, the Rome Statute, and customary international law. The report is basically saying that, if you could have a presumption against prosecution where there is evidence that would justify a prosecution and the public interest favours it, why is that not contrary to the five commitments that the country has made legally?

The third point is the involvement of the International Criminal Court. We as a country ought to be prosecuting these offences, not the ICC. The noble Baroness, Lady Goldie, will know that the ICC’s chief prosecutor Fatou Bensouda said last week in a letter to the British Government that the presumption against prosecution could

“render such cases admissible before the ICC.”

How have the Government reached such a different conclusion to that of the ICC’s chief prosecutor? Does the noble Baroness, Lady Goldie, believe that the ICC has misunderstood the Bill? Is she confident that the consequence of the Bill will not be to replace one uncertainty with another, namely that our military personnel may well face long investigations and then long prosecutions in the ICC, which nobody wants? I believe it is incredibly important that our justice system and in particular our military justice system produces an answer to the problem that this part of the Bill seeks to address, but I am anxious that it will be ineffective in doing that, it will send out a signal that we are not complying with international law, and it will lead to more prosecutions in the ICC.

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

My Lords, I thank the noble Baroness, Lady Massey of Darwen, and all other noble Lords for their contributions to a wide-ranging and—I certainly accept—thought-provoking discussion this afternoon. I have listened to the debate closely. We have covered extensive territory across the principles of the Bill. Before I turn to the individual amendments in the first group, I will address the range of Clauses 1 to 7 of Part 1, which a number of your Lordships would wish to remove. It may be helpful if I clarify the Government’s intent in proposing these provisions, and perhaps I should restate why there is a Bill at all.

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[Lord Naseby (Con) [V]]

My Lords, I spoke at Second Reading, where I said that our Foreign Office should release

“dispatches from our observers who watch war anywhere around the world.”—[Official Report, 20/1/21; col. 1231.]

I realise that Part 1 is absolutely the key issue of the Bill. I ask my noble friend on the Front Bench whether she will confirm that, when the Bill becomes an Act, in whatever form, it will be drawn to the attention of the United Nations, particularly the UNHRC in Geneva and the International Criminal Court, as well as all other relevant official bodies involved with alleged war crimes, wherever they may be?

I ask this because of current evidence that the UNHRC has not been fully briefed by Her Majesty’s Government concerning British military attaché evidence taken in 2009 in relation to the war in Sri Lanka. Therefore, there is a lack of evidence in the report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka, dated 12 January 2021. I thank the Minister for listening to this important but rather unusual dimension.

[Baroness Goldie (Con)]

I thank my noble friend for his contribution. I am not terribly well equipped to deal with the specific aspect of his comment and inquiry in relation to Sri Lanka and the apparent lack of evidence that he argues is the case in relation to the Office of the United Nations High Commissioner for Human Rights. I can certainly undertake to investigate that, and it may be a matter to which my noble friend Lord Ahmad of Wimbledon might wish to respond.

As for drawing the attention of international bodies to the Overseas Operations (Service Personnel and Veterans) Bill when enacted, I think—from the responses that we are aware of—that it has already attracted widespread comment from international organisations. I am sure that, as part of their public affairs monitoring, they all take account of legislation coming out of various countries. However, the noble Lord makes an interesting point, and I shall reflect upon it.

[Lord West of Spithead (Lab)]

My Lords, taken together, many of the amendments that we have just discussed certainly seem aimed at emasculating and, indeed, wrecking the Bill. I have no doubt whatever that the Bill is necessary: it lances a long-standing boil and fulfils a promise to our military. The issue has proved too difficult to tackle, time and again, and it is about time that it was tackled. The Bill must go forward.

We need the Bill so much, and I think the amendments we have discussed should go. There are a number of amendments that will resolve the wrinkles, but is it not the case that we will touch on some of the things already discussed in later amendments, when there will be a chance to correct them?

[Baroness Goldie (Con)]

I thank the noble Lord for his very candid assessment of both the situation that we seek to address and how the Bill seeks to do so. In my role as Minister for Defence in this House, I have certainly pledged to engage with your Lordships; it has been my pleasure to engage with a considerable number of you.

In my remarks on Clauses 1 to 7 of the Bill, I indicated that I am aware of the profound concerns of many Members of this House. I say to the noble Lord, Lord West, that it is my desire to continue my engagement. I shall listen very closely to the contributions during the rest of the debate on the groups of amendments that we are scheduled to deal with today. It is not a cosmetic interest; I understand the depth of concern, and, in reflecting on all the contributions, I shall consider whether some avenues are available to me to try to assuage some of these concerns.

[Baroness Massey of Darwen (Lab) [V]]

My Lords, this has been an extraordinarily rich and challenging beginning to our consideration of the Bill. I thank the Minister, for whom I have the greatest respect—I know that she is concerned about all these issues—for her detailed response. However, there are some things that are still unclear and about which I have doubts, and I shall come on to those in a moment.

We have had a particularly enlightened debate, with huge depths of knowledge from the perspectives of law, military engagement and political practice. I totally respect all of that and listened to it with great interest. The bottom line is that we want to make things better for our Armed Forces, which do have our respect. I do not think that the Bill has all the answers. Many noble Lords—too many to name—have demonstrated that. We have heard about the challenging aspects of investigations, in the risk to the Armed Forces and legal structures, and much has been covered in this one debate. I wonder what else is to come.

I have been waiting for the Minister to answer all the many excellent points made by my noble and learned friend Lord Falconer of Thoroton. The noble Baroness has been very eloquent, but I am left with some queries. I shall read the noble Lord’s questions and the Minister’s answers again carefully, but I am not totally convinced, for example, by her arguments about the proposals for public consultation. I really do not understand the reasoning behind that—and there are other aspects, too. The debate has left us all with much to ponder and decisions to take about future action. In the meantime, I beg leave to withdraw the amendment.

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[Lord Thomas of Gresford (LD) [V]]

My Lords, the problem of investigations—as well as of late and inadequate investigations—should be addressed and the process sharpened up. The noble and gallant Lord, Lord Boyce, told us this a moment ago and I thoroughly agree with him. The problems have been very clearly outlined by the noble and learned Lord, Lord Falconer of Thoroton. I echo the noble and learned Lord, Lord Thomas of Cwmgiedd, who emphasised that justice must be done based on thorough and prompt investigation. The noble Lord, Lord Lancaster of Kimbolton, is sure that investigations have improved in recent years; I hope that that is true.

I stress first of all the inherent difficulties of investigations into alleged conduct arising out of overseas operations. The noble Lord, Lord Browne of Ladyton, believes that they should be timely and of quality—of course they should. In the United Kingdom, most crimes are investigated by one or more of the 45 or so police forces within their area of operations. Local police forces can readily pull in extra investigatory resources, including scientific investigations, if they need them.

By contrast, investigations by the military police may occur anywhere in the world. Co-operation by the civilian population or even the civilian police cannot be guaranteed. There are usually significant linguistic and cultural problems in the collection of statements from witnesses. It may be that a complainant—a foreign national—has his own axe to grind. The noble Lord, Lord Anderson, reminded me, with the Baha Mousa case, of another problem, where the judge said in his closing remarks that there had been a closing of ranks; that is a problem with the natural desire of soldiers to support each other.

There can be security problems. When in 2005 it was decided that an inspection of a dusty Iraq village was desirable, a whole company or more of 200 soldiers was deployed to provide protection for the dozen or so sheepish lawyers who attended. I was not one of them: the MoD was not prepared to insure the silks in the case. There is no immediate access to the support that a civilian police force in this country might expect. It follows that delays are inherent and inevitable, but they are not desirable. Yet we can read the whole of this Bill and find nothing which deals with the essential preliminary to any prosecution: a thorough, prompt investigation.

This group of amendments suggests various pathways to ensuring that the length and efficiency of an investigation is controlled. Amendment 17, in my name and that of my noble friend Lady Smith, sets out a practical route for putting the investigation under the control of the Director of Service Prosecutions. An investigator must, within six months of the complaint, provide a preliminary report to the DSP of the progress of his investigation. As may well happen informally in any event, the DSP may give guidance on the lines of inquiry which would be appropriate.

In my amendment, if, on an assessment of all the papers, the DSP sees no future in the investigation, he would have the power to terminate it then and there. If he orders the investigation to continue, there would be regular reporting to him of the progress of the inquiry, again with the possibility of him calling a halt. I have discussed this with the former Judge Advocate-General, Judge Blackett. He is of the view that control of the investigation is highly desirable but that the power to stop an investigation should rest with a designated judge, not with the DSP. A moment ago, the noble Lord, Lord Anderson, suggested that this might not be satisfactory and that a more independent person should be involved in supervising an investigation. I am not really worried about what way one approaches it, but there should be control of an investigation to ensure that it is proceeding at a proper pace and in a proper direction. I think there was a modicum of support for that amendment even from the noble Lord, Lord Lancaster of Kimbolton. Since the DSP has the undoubted power to decide not to prosecute on the conclusion of an investigation, I do not see any problem with the DSP controlling the steps leading up to the final report.

I have also added my name to Amendment 3 on the basis that, at the very least, in deciding whether to prosecute, the DSP should have in the forefront of his mind whether a fair trial has been materially prejudiced by delay or by the quality of the investigation. I have in the past made submissions in court that a fair trial is impossible through delay, pre-trial publicity or matters of that sort, but never with success. The noble and learned Lord, Lord Hope, criticised Amendment 3 as too soft. I do not think so, if it is given a statutory formulation. It would be given weight as an important consideration for the DSP at the time of his decision whether to commence proceedings at all. I submitted earlier this afternoon that a presumption against prosecution is not the way forward. Whether a fair trial is possible should be an important consideration before the prosecution commences.

[Baroness Goldie (Con)]

My Lords, once again we have all been struck by the quality of the debate, which has penetrated issues that are legitimately at the heart of the Bill. Noble Lords who have raised issues related to the Bill are rightly seeking clarification and reassurance about what different components of the Bill mean, and particularly where the whole issue of investigations lies in relation to it.

I will begin with Amendment 3, moved by the noble and learned Lord, Lord Falconer of Thoroton. The Government’s intention with the measures that we have introduced in Part 1 of the Bill is to provide demonstrable reassurance to our service personnel and veterans. It is not only a worthy aspiration but a necessary one. It is a demonstrable reassurance in relation to the threat of legal proceedings arising from alleged events occurring many years earlier on operations overseas. This has meant balancing the need to introduce protective measures for service personnel and veterans and remaining compliant with our domestic and international obligations.

On the one hand, the measures set a high threshold for a prosecutor to determine that a case should be prosecuted, as well as ensuring that the adverse impact of overseas operations will be given particular weight in favour of the serviceperson or veteran; on the other hand, as I have previously said, the measures do not and cannot act as an amnesty or statute of limitations, do not fetter the prosecutor’s discretion in making a decision to prosecute, and are compliant with international law. I believe that we have achieved this balance, this equilibrium, in the combination of Clause 2, the presumption, and Clause 3, the matters to be given particular weight. We are providing the additional protection that our service personnel and veterans so greatly deserve, while ensuring that in exceptional circumstances individuals can still be prosecuted for alleged offences.

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[Lord Tunnicliffe (Lab) [V]]

My Lords, we stand foursquare behind our troops and we want to work with the Government to build the broadest consensus possible on the Bill—tailored to supporting our Armed Forces members and safeguarding human rights. The amendments in this group aim to probe an understanding of what particular weight a prosecutor must give when considering a prosecutorial decision related to alleged conduct during overseas operations. As we have heard, Amendment 4 would remove the requirement on a prosecutor to consider the adverse effect on the person of the conditions they were exposed to. Amendment 7 would remove the requirement on the prosecutor to consider any exceptional demands and stresses, while Amendment 8 would remove the definition of any adverse effects, including making sound judgments or considering mental health.

The amendments are based on concerns raised by the Joint Committee on Human Rights which stated:

“We do not consider that there is any solid basis for including additional requirements that could risk granting de facto impunity.”


If mental health is already considered by prosecutors, as indicated by the Joint Committee on Human Rights, why do the Government believe it necessary to include it in this Bill? As the Minister will see, these requirements have not been considered by prosecutors before. Also, as my noble and learned friend Lord Falconer asked in the previous group, why have the Government not included a requirement for prosecutors to give weight to the quality and duration of relevant investigations? The Armed Forces Judge Advocate, General Jeff Blackett, has said:

“Clause 3 is engaged after five years. It seems bizarre to me that in deciding whether to prosecute, you have a post-five-year test, but not a pre-five-year test.”


Why have the Government drafted Clause 3 in this way? What independent legal advice was given in relation to the drafting of the clause? Vexatious claims are a serious problem, but we fear that the focus on a presumption against prosecution misses the point: it is the current cycle of investigations. We can see that from how the Government have failed to give particular weight to the quality and duration of the investigations in this clause.

[Baroness Goldie (Con)]

My Lords, once again, I thank the noble Baroness, Lady Massey, and all other contributors to the debate for a fertile discussion. At the risk of sounding repetitive, I shall probably repeat some of the themes to which I have already referred.

In relation to these amendments, I would comment that we ask a huge amount of our service personnel. We send them to undertake high-threat, high-risk operations in defence of our country and its people. They do their duty in the clear knowledge that they may be injured, maimed or even killed. That is the unique nature of their job and is what sets them apart from the rest of us. The Government believe therefore that it is absolutely right and reasonable to require that in return we ensure that a prosecutor, when coming to a decision to prosecute, must give particular weight to the unique circumstances of overseas operations and the adverse impact that these may have on a service person’s capacity to make sound judgments and on their mental health at the time of an alleged offence. This will be in addition to considering the existing evidential sufficiency and public interest test.

Let me make it clear that this is intended not to excuse bad behaviour by service personnel but to ensure that prosecutors give full recognition to the significant difference in the circumstances surrounding an alleged offence committed on operations overseas as compared, for example, with situations where the alleged criminal conduct occurs in a domestic, civilian setting.

Although differing views to the attitude of the Government have perhaps been expressed in the debate, as far as I could ascertain, contributors acknowledged that the conditions referred to in the Bill could indeed be personal impairments that might attach to Armed Forces personnel in the course of their operations overseas. That is why the prosecutor must consider the presumption against prosecution in Clause 2 and determine whether the case meets the exceptional threshold. The prosecutor must also, as required by Clause 3, give particular weight to matters that may effectively tip the balance in favour of not prosecuting.

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We support these amendments in the hope that the Government will explain the need for a triple lock on a prosecution decision and whether the Attorney-General’s decision would depend on the numbers demonstrating in Parliament Square.

[Baroness Goldie (Con)]

My Lords, this has been perhaps a narrower debate in relation to interesting legal issues but none the less, once again, productive and fertile. I realise that these amendments are the product of the noble and learned Lord, Lord Thoroton, who has applied his considerable legal gifts to their drafting.

As has been explained, Amendments 10, 11 and 12 to Clause 5 seek to place a requirement on the Attorney-General to report to Parliament with the reasons for granting or withholding consent. The requirement in Clause 5 is that the consent of the Attorney-General for England and Wales, or the Advocate-General for Northern Ireland, has to be given before a case of an alleged offence committed by a serviceperson more than five years earlier on an overseas operation can proceed to prosecution. The noble Lord, Lord Thomas of Gresford, asked what the Attorney-General was doing in this Bill. We have introduced the consent function because it is important for service personnel and veterans to be confident that their case will be considered with care at the highest levels of our justice system.

The Attorney-General is left to discharge that obligation independently. As the Committee is aware, requiring the consent of the Attorney-General for a prosecution is not unusual. She already has numerous other consent functions, including for the institution of all prosecutions for war crimes offences under the International Criminal Court Act 2001—nor does it mean that the Government have any role to play in a decision on consent. It is a constitutional principle that, when taking a decision on whether to consent to a prosecution, the Attorney-General acts quasi-judicially and independently of government, applying the well-established prosecution principles of evidential sufficiency and public interest. I seem to remember that on Second Reading my noble friend Lord Faulks articulated that position very eloquently, and I think that it is generally understood.

We feel that it is not appropriate for the Attorney-General to comment on any individual or ongoing investigation or prosecution. I am aware of no statutory requirement anywhere else for the Attorney-General to report in relation to individual casework decisions. We do not believe, therefore, that it would be appropriate to introduce such a requirement in the Bill. As I have said elsewhere, preserving the independence and discretion of the prosecutor is vital to the Part 1 measures. Without this, we cannot ensure that cases are treated fairly, nor can we prevent the ICC from stepping in. Adding a measure to the Bill that would require the Attorney-General to make a public statement before Parliament about specific prosecutions would quite simply interfere with that discretion. That would be an unusual and, I suggest, unwise innovation. Interestingly, critics of the Bill have expressed concern that giving the Attorney-General a role in Part 1 risks introducing politics into what should be a criminal justice process. Indeed, the noble Baronesses, Lady Jones of Moulsecoomb and Lady Chakrabarti, voiced these concerns. We do not agree that this is true for the Bill as drafted, but I pose the question: surely these amendments risk that precise outcome. Certainly my noble friend Lord Faulks confirmed that apprehension.

Amendments 11 and 12 would require the Attorney-General to make a prediction about whether the International Criminal Court will exercise its competence in a particular case, make a judgment about whether a prosecution would

“lead to a breach of international law”,

and then compel her to act in a certain way. I think that even the noble and learned Lord, Lord Falconer of Thoroton, would agree that both these amendments would be an unprecedented extension of the normal consent function that the Attorney-General has in relation to the prosecution of offences. The International Criminal Court is an independent body, and it would be inappropriate for the Attorney-General to speculate about or pre-empt decisions that the International Criminal Court might make. Again, my noble friend Lord Faulks commented on that. The phrase “international law” is included in Amendment 12 but is undefined. It is not clear which international laws the amendment is attempting to incorporate into the Bill.

In my opinion, we should allow the evidence that has been produced to the prosecutor, and the public interest, to speak for itself in each individual case, considered by an independent prosecutor, using their discretion. We should not force the Attorney-General to potentially compromise his or her independence in a particular case by adjudicating on these other matters. For that reason, I ask the noble and learned Lord to withdraw his amendment.

[Lord Falconer of Thoroton (Lab) [V]]

I am obliged to everyone who participated in the debate and to the noble Baroness, Lady Goldie, for the care with which she answered the questions raised.

As the debate went on, I became increasingly concerned about the involvement of the Attorney-General. I am a very strong believer in the necessity for a Minister in the Government who has functions to protect the rule of law in the way in which the Attorney-General does in the Government of the United Kingdom and the Lord Advocate does in the Government of Scotland. In relation to the criminal justice system, including for the military, it is critical that the Attorney-General is, and is seen to be, politically independent of the Government in a way in which the current Attorney-General, Suella Braverman, did not seem to be in relation to the Dominic Cummings question. There are also questions over the Lord Advocate in Scotland in relation to the redaction of Mr Salmond’s evidence to the constitutional committee.

What is being proposed here is, in effect, a circumstance in which the Attorney-General will override the view of a prosecutor. If the Attorney-General agrees with the prosecutor on bringing a prosecution, and the decision will only come to the Attorney-General once a decision has been made to prosecute, he or she will be overriding that decision. If the provision is to remain in the Bill, only if the Attorney-General or the Advocate-General explains why he or she is doing that will there be a sense that politics has not intervened. Only if he or she gives reasons that stand up to scrutiny will a sense of political involvement be removed.

I completely accept that my proposal is novel and would not constitute formal advice, and I accept the point made by a number of noble Lords that it would break with precedent. However, it is so important to preserve the evident independence of the Attorney-General. I agree with what the noble Baroness, Lady Goldie, said to the Joint Committee on Human Rights that in performing this function, the Attorney-General would be acting entirely independently of government. If he or she says no to a prosecution that a professional prosecutor has said should go ahead, they should explain.

I will of course think carefully about what noble Lords have said in this debate but, for now, I beg leave to withdraw the amendment.

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I cannot express more strongly the support of this side of the Committee for Amendment 14.

[Baroness Goldie (Con)]

My Lords, predictably this debate surrounding Clause 6 and Schedule 1 has given rise to the passionate, informed and powerful advance of arguments, which I was expecting. I have listened to the sentiment and emotion that have accompanied the articulation of the arguments and I would have to be completely mute not to hear the force of those emotions. As the noble Lord, Lord Berkeley of Knighton, indicated, the Minister has come to her winter of discontent—an apt description because the debate around this part of the Bill has encapsulated the major areas of anxiety and concern.

As I set out earlier, Clause 6 details those offences that are excluded from the measures in Part 1 of the Bill. Those are set out in Schedule 1, including offences committed against a member of the regular or reserve forces. All the excluded offences listed in the schedule are sexual offences. I shall come to that in a moment; a number of questions have been posed about it but it reflects the Government’s strong stated belief that the use of sexual violence or sexual exploitation during overseas operations is never acceptable in any circumstance.

The exclusion of sexual offences from Part 1 does not mean that we will not continue to take other offences such as war crimes and torture extremely seriously. I realise that some may dismiss these as mere words and feel unconvinced. I should say that the presumption against prosecution still allows the prosecutor to continue to take decisions to prosecute those offences, and the severity of the crime and the circumstances in which it was allegedly committed will always be factors in their considerations.

The noble Lord, Lord Thomas of Gresford, asked why we have not excluded torture offences from Part 1 measures and why we have excluded sexual offences. In the course of their duties on overseas operations, we expect our service personnel to undertake activities which are intrinsically violent in nature. They fight, they use force, they may use lethality, and they may detain. All these activities are predictable in an overseas operation. What is not predictable, and has no place in an overseas operation, is committing a sexual offence. However, the other activities to which I referred can expose service personnel to the possibility that their actions may result in allegations of, for example, torture. If the prosecutor, having received the results of an investigation, considers that there is no case, he will not prosecute, but if he considers that there is a stateable case, Part 1 of the Bill will not prevent prosecution of torture. That is why we have made the distinction between the two different characters of crime: one that you would never expect to find in an overseas operation, and one that could arise because of action that may have been taken in good faith by Armed Forces personnel believing that it was legitimate and proportionate.

In response to the noble Lord, Lord Robertson, on the strong emotions which this part of the Bill has elicited, I am aware that certain interpretations have arisen, with the suggestion that the continuing commitment to upholding international humanitarian and human rights law, including the United Nations convention against torture, is somehow undermined by the Bill. I submit that this is a misconception, which I am happy to address and correct.

The UK does not participate in, solicit, encourage or condone the use of torture for any purpose, and we remain committed to maintaining our leading role in the promotion and protection of human rights, democracy and the rule of law. It is worth remembering that, whenever a prosecutor currently makes a decision to prosecute an offence, including offences under the International Criminal Court Act, they must consider the public interest factors in the prosecutor’s full code test, in addition to making a judgment about the strength of the available evidence.

The public interest factors include the severity of the offence, the level of culpability of the suspect, the circumstances of and the harm caused to the victim, and the suspect’s age and maturity at the time of the offence. There is no suggestion when exercising this existing discretion that our prosecutors are not acting in compliance with international law, and we consider that the same is true when they will, in future, be required to take into account the measures in Part 1 of the Bill.

The noble Lord, Lord Robertson, and other noble Lords raised the matter of the International Criminal Court and the recent letter, which I have read in detail. It is interesting that the letter postulates that where the effect of applying a statutory presumption be to impede further investigations—the Bill does not do this—or to impede prosecution of crimes, because such allegations would not overcome the statutory presumption, the ICC would want to monitor what was happening. This is a perfectly legitimate position for the ICC to adopt. Given that this was raised by the noble Lords, Lord Robertson, Lord Campbell of Pittenweem, Lord West and Lord Browne of Ladyton, and the noble and learned Lord, Lord Hope of Craighead, it might be helpful to note here the relationship between the UK and the International Criminal Court. Some of your Lordships may be unaware of what the current relationship is, which suggests to me that something arising out of the blue would, frankly, be beyond credibility.

In accordance with International Criminal Court procedures, a preliminary examination would first need to be initiated by the Office of the Prosecutor to decide whether to take that step. In practice, in the event that the OTP was to raise issues with us about a possible investigation, that would trigger a long and very detailed preliminary examination of the situation, within which we would be consulted at each step of the way, for the OTP to determine whether it was necessary to open any investigation. That means that we would have many opportunities to prevent UK service personnel from being prosecuted at the ICC. We would be able to show that the UK national system was both willing and able to conduct investigations and prosecutions, thus rendering unnecessary the ICC’s jurisdiction over UK service personnel. I offer that additional information in the hope that it will provide some reassurance that these activities are not all operating in silos. There is a co-operative and positive relationship with the ICC.

Amendment 14, proposed by the noble Lord, Lord Robertson, seeks to add wording to Clause 6(3) to explicitly exclude further offences from being a “relevant offence” under Part 1. These are torture, under the Criminal Justice Act 1988, and genocide, a crime against humanity or a war crime under the International Criminal Court Act 2001.

The noble and learned Lord, Lord Hope of Craighead, made a very powerful submission in support of Amendments 36 to 45, which in combination would have a similar effect by ensuring that torture offences contained in Section 134 of the Criminal Justice Act 1988, under the law of England and Wales, and the offences of genocide, crimes against humanity and grave breaches of the Geneva convention contained within the International Criminal Court Act 2001 as it applies in England and Wales, Northern Ireland and Scotland, were listed as excluded offences in Schedule 1. These amendments would amount to a comprehensive list of very serious offences to be excluded from the application of the measures in Part 1. The noble and learned Lord advanced his case cogently and with purpose, as one would expect, and others did likewise in their support of the amendments.

I am fully aware of the deep concerns that have been expressed that the Bill does not exclude these offences, and I have already set out the Government’s reasoning for excluding only sexual offences from the coverage of Part 1. I believe the perception has arisen that the absence of crimes from Schedule 1 has been equated with the non-prosecution of such serious crimes because it is assumed that the Bill will bar such prosecutions. However, I reiterate that the severity of an alleged offence will continue to be an extremely important factor for a prosecutor in determining whether or not to prosecute.

I realise that my response may be regarded by your Lordships as inadequate, so I will endeavour to provide some concluding thoughts. I have argued that the measures in Part 1 will require a prosecutor to give additional consideration to some specific matters—most importantly, the unique context of overseas operations. However, quite rightly, these measures will not prevent the prosecutor determining, having considered all the circumstances of the case, that it is appropriate to prosecute. The presumption in Clause 2 may be rebutted where it is appropriate for the prosecutor to do so.

The Bill as drafted ensures that the Part 1 measures will apply to a wide range of offences. That is to provide reassurance to our service personnel that the operational context will be taken into account, so far as it reduces a person’s culpability in the circumstances of allegations of criminal offences on historical overseas operations. I believe that we can take this approach in the knowledge that the prosecutor retains their discretion to make the appropriate decision on a case-by-case basis, including in respect of the most serious offences.

The Government have felt that, with the exception of sexual offences, all other crimes should be covered by the measures in Part 1. However, I am in no doubt as to the strength of feeling expressed by the Committee, which was neatly encapsulated by the noble and learned Lord, Lord Falconer, because I did not find too many supporters speaking up for my side of the argument. I undertake to consider with care the arguments that have been advanced and to explore if there is any way by which we can assuage your Lordships’ concerns. I hope that, in these circumstances, that will persuade the noble Lord, Lord Robertson, to withdraw his amendment and the noble and learned Lord, Lord Hope of Craighead, not to move his.

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[Baroness Goldie (Con)]

I apologise for the confusion.

There was a further amendment: Amendment 15. It deals with Clause 6(6), which is the delegated power provision. That provision is there to ensure that the Government are able to respond to new developments and fresh concerns that may emerge in relation to potential offences in future overseas operations without the need to seek primary legislation every time a change is required.

Legislation that confers such a power to amend the list in the schedule to an Act is not unusual. Schedule 1 lists the offences excluded from the requirements set out in Clauses 2, 3 and 5, and the power is limited to amending this list of offences, so it has a very narrow scope. It is also not unusual that any exercise of the power to amend the schedule to an Act be subject to the affirmative procedure before any regulations can be made.

The noble and learned Lord, Lord Falconer, and the noble Lords, Lord Thomas of Gresford and Lord Tunnicliffe, have been supportive of this amendment. Its aim seems to be to further narrow the scope of the power in response to the concerns raised by the Delegated Powers and Regulatory Reform Committee.

I believe, however, that the concern over the power contained in Clause 6(6) has possibly arisen from the wider concerns regarding the requirements set out in Clauses 2, 3 and 5. I have tried to allay these concerns, and I have detected a growing acceptance that the Bill does not represent an absolute bar to future prosecutions of serious crimes. The delegated power will allow future Governments to adapt Part 1 of the Bill according to the lessons they may learn from overseas operations in future. To limit the scope so that offences can only be added to Schedule 1, as the amendment would wish, could have an impact on the Government’s ability to implement the lessons learned and adapt to what is likely to be an evolving operational landscape.

The power already has a very narrow scope and its use will still require the express approval of both Houses of Parliament. In these circumstances, I urge noble Lords to not move this amendment.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I am grateful to the Minister for what I can call only a predictably clear and gracious response. Because the Minister has agreed to reflect on this evening’s debate and consult her colleagues thereafter, I will just press her for a moment longer on the distinction between sexual offences and torture in particular, not with a view to further back and forth this evening but in the hope that it might influence her discussions with her colleagues.

The last 20 years have taught us that when torture is practised as a weapon of war, sexual torture is often one facet of that torture. It is not a nice thing to discuss. The other side of the coin is that of false allegations and clouds hanging over innocent and brave members of Her Majesty’s forces. Our Armed Forces, when overseas, can be as easily subject to false allegations of sexual offences as to false allegations of torture or any of the other offences that are not barred from the presumption against prosecution in the Bill.

If this is not about false allegations, there must be, as I understand the rationale, some kind of thinking, perhaps at the Ministry of Defence or elsewhere, that because our Armed Forces are engaged in violence, there is some kind of fine line, or borderline, between the violence in which we understand they are engaged and torture. If that is the case, I find it very troubling indeed. Are we back in the Bush White House? Are we back with the legal advice that it is not torture when it is enhanced interrogation, for example?

It seems to me that international law and our own ethical and legal norms are very clear on the distinction between the kind of violence that is sadly necessary in war situations and genocide, crimes against humanity and torture. There is not a borderline against torture, and that tacit acceptance of a grey area is just the kind of thinking that got people into such difficulties on both sides of the Atlantic over the last 20 years. So I humbly ask the Minister, in the spirit of genuinely trying to improve this, to examine that distinction between sex and torture, and sexual torture and other forms of torture, in particular, when she goes back to her colleagues in the department and elsewhere.

[The Deputy Chairman of Committees (Lord Alderdice) (LD)]

Does the Minister wish to respond?

[Baroness Goldie (Con)]

Yes. I listened very carefully to what the noble Baroness said, and I undertake to look at her contribution in detail.

[Lord West of Spithead (Lab)]

My Lords, I thank the Minister for a very clear exposition of how one can get around some of these difficulties. I am delighted that she is going take this back and look at it, but I ask her to ask her officials: what are the benefits for the UK of excluding these from the list? What are we gaining by that? I used to find quite often, when I was standing at the Dispatch Box for three years, that when I prodded in that way, I would find that there were no benefits, but that they were defending their position wonderfully. I am not asking for an answer now, but can she prod that to see what benefits we actually get by not having those listed?

[Baroness Goldie (Con)]

Again, I undertake to look carefully at the noble Lord’s remarks.

[Lord Robertson of Port Ellen (Lab) [V]]

My Lords, I too thank the Minister for her gracious reply and for her willingness to take this matter away and reflect on this and other debates. I am glad that she recognises that, among the 800-odd Members of the House of Lords, the Government could not mobilise one single Member of the House to come and defend the position on this amendment. I am not surprised, and I can see the difficulty that she has in putting forward the argument.

I listened to see whether I could be persuaded by what she said—after all, some of the officials who used to work for me may still be there and producing the rationale for her this evening. However, to say simply that there is no bar to prosecution for war crimes, torture and crimes against humanity is to state only the technical argument. The fact is that the Bill gives a presumption against prosecution for war crimes, crimes against humanity and torture, and that is what is going to be noticed, not the technical argument that there is no actual bar. There are barriers or, as the chief prosecutor of the ICC said, conditions laid down which will be well noticed.

Perhaps I may also say that when the Minister goes back to the Ministry of Defence and faces those who want to take a stand here, it might be worth avoiding the mistake that we make all too often in foreign relations, which is mirror imaging—looking at an issue through our eyes. In this case, if those who want to take a hard line would look at this issue through the eyes of the torturers, the war criminals and those who would perpetrate torture and crimes against humanity and see what sort of signal they are getting from the United Kingdom and its legal system, that would paint a different picture from the rather Panglossian view that just been put forward.

I feel strongly about this, more strongly than I have felt about many other things, because I feel for my country. I feel for its reputation and the credibility of our standing in the world and our reputation for adhering to agreements that we have come to. So all of us hope that the Minister will go away, think and expect others in the department and the Government to think again. On that basis, I am willing to withdraw the amendment, but I have no doubt that we will come back to the issue at later stages of the Bill.

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[Lord Tunnicliffe (Lab) [V]]

My Lords, the Good Friday agreement is central to the ongoing peace process in Northern Ireland. We all have a vital role to play in safeguarding the Good Friday agreement and building on its promise, and we must ensure that this Bill, or any other Bill, protects it. However, the Government have demonstrated a reckless approach to the Good Friday agreement. We need only to consider their actions with the internal market Act, which threatened the agreement and resulted in resounding international criticism, including from the new President of the United States.

The Good Friday agreement is one of Labour’s proudest achievements in office. The courage of the people and communities in Northern Ireland made peace happen and has allowed an entire generation to grow up free from conflict. We must build on it, not weaken its foundations. The amendments in this group aim to ensure that the Bill cannot be interpreted in a way that undermines the Good Friday agreement’s requirements for the Government to complete incorporation of the European Convention on Human Rights into Northern Ireland law.

Rights and Security International has said that the Bill risks undermining the agreement as the presumption against prosecution

“extends to criminal offences which are also considered violations of the ECHR, such as torture … Under the ECHR, there is a procedural obligation to … prosecute and punish”

these acts, and the Good Friday agreement

“requires that this procedural obligation be incorporated in the law of Northern Ireland.”

Does the Bill make it harder for breaches of the ECHR to be prosecuted? Rights and Security International has also said that the six-year longstop impacts on

“the Good Friday Agreement’s requirement that the UK ensure direct access to the courts”.

Have the Government received independent legal advice on the impact of the Bill on the Good Friday agreement or carried out their own impact assessment of the Bill on the agreement?

When considering Northern Ireland, we must also remember that the Bill does not cover operations in Northern Ireland as originally promised. Last month, the Leader of the House in the other place said that

“the Government will introduce separate legislation to address the legacy of the past in Northern Ireland in the coming months in a way that focuses on reconciliation, delivers for victims and ends the cycle of reinvestigations into the troubles in Northern Ireland”.—[Official Report, Commons, 11/2/21; col. 496.]

However, it is now exactly a year since the Northern Ireland Secretary made a statement promising the same. What is causing the delay? When will it be published? The Good Friday agreement must endure, must be strengthened and must continue to guarantee peace. Whether it is in this Bill or any other, the aims must be supported, not undermined.

[Baroness Goldie (Con)]

My Lords, I thank the noble Baronesses, Lady Ritchie of Downpatrick, Lady Suttie and Lady Chakrabarti, and the noble Lord, Lord Tunnicliffe, for their contributions. These amendments seek to ensure that the Bill cannot be interpreted in a way that undermines the Belfast agreement. As they all indicated, the Belfast agreement was, of course, an incredible achievement, and the Government remain fully committed to the agreement and the constitutional principles it upholds, including the institutions it established and the rights it protects. The agreement has been the foundation for political progress, peace and stability in Northern Ireland over the last 22 years, and it will be protected going forward.

I listened with interest and care to my noble and learned friend Lord Mackay of Clashfern, and I reassure him that nothing in the Bill could be interpreted as undermining the commitments contained in the Belfast agreement, and nothing that would diminish the essence of the protections that the Human Rights Act currently offers to the people of Northern Ireland. My noble and learned friend may be aware that the UK has already fulfilled the commitment under the agreement to incorporation by enacting the Human Rights Act 1998, which provides for direct access to the domestic courts to vindicate convention rights, and the Northern Ireland Act 1998, which provides that the Northern Ireland Assembly can legislate only in a way that is compatible with convention rights and that Northern Ireland Ministers must act compatibly with the convention rights. I would say that the measures in this Bill are considered to be compatible with the convention rights.

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[Lord Thomas of Gresford (LD) [V]]

My Lords, I have little to say in respect of this amendment. I believe that summary offences should be dealt with summarily, and that is what this amendment seeks to achieve.

[Baroness Goldie (Con)]

My Lords, it is interesting that we conclude our consideration of Part 1 of the Bill with a genuinely interesting proposition from the noble and learned Lord, Lord Falconer of Thoroton, so neatly encapsulated by the noble Lord, Lord Thomas of Gresford.

The amendment seeks to introduce, via a new section to be inserted in the Armed Forces Act 2006, a six-month limitation period between an offence being committed or discovered and any proceedings being brought, where certain conditions are satisfied. As I understand the proposal, the amendment would create a six-month limitation period for all offences capable of being dealt with at a summary hearing under Section 53 of the Armed Forces Act 2006. It is worth observing that this category of offence includes a large number of matters that are specific to a military context.

Section 53 covers, for example, the offence of being absent without leave, under Section 9 of the Armed Forces Act 2006; the offence of disobedience to lawful commands, under Section 12; the offence of contravention of standing orders, under Section 13; and the offence of disclosure of information useful to an enemy, under Section 17. These, and many more offences like them, are vital to maintaining discipline and operational effectiveness in the Armed Forces. The amendment proposes that none of these should be capable of leading to punishment after six months. With the greatest respect to the noble and learned Lord, I think that that is unwise.

During any investigation, it is not always clear at the outset what the charge will be, but this is made harder for investigations on overseas operations, particularly where the injured person or witness is a local national. As I have already set out in response to other investigation-related amendments, investigations on overseas operations are subject to greater complexity than those conducted back in the UK, and delays can occur. However, placing what is actually quite a short time limit on investigations is unhelpful. In my view, we should not be seeking to do anything that would fetter the investigative decision-making of the service police. A time limit in these circumstances would do just that.

Even the most minor offences take on a greater significance in an operational environment and, if we reflect on some of the offences to which I have just referred, I think your Lordships would understand the import of that. A minor offence is not necessarily a simple matter that can be dealt with quickly by a commanding officer, and minor offences committed against local nationals can have a disproportionate effect in an operational setting.

I think that this amendment is modelled upon the provisions that exist in relation to summary-only matters in the Magistrates’ Courts Act 1980, which is why I find it problematic. The Magistrates’ Courts Act codifies the procedures applicable in the magistrates’ courts of England and Wales. This legislation is not written to accommodate the extraordinary demands made of a system operating in an operational context where, as I have already said, delays can sometimes occur as a result. Applying civilian timescales to an operational context is therefore not appropriate.

I appreciate that the amendment has been offered in good spirit by the noble and learned Lord. I thank him for the breadth of thought in investigating that aspect, but I urge him to withdraw the amendment.

[Lord Falconer of Thoroton (Lab) [V]]

I am grateful to the Minister for her very careful reply. I understood her to make two particular points: first, that six months may be too short, particularly in an overseas operational environment and, secondly, that it may not be appropriate in dealing with certain sorts of military offences, for example, disobedience to orders, particularly in an overseas context.

I hear what the noble Baroness has said and I will think very carefully about two things. First, does one need a longer period and, secondly, should one exclude certain specifically military offences? However, if it were possible, I would be keen to find a way forward on this because although the points she makes have some degree of validity, I also think that for comparatively minor offences it is disproportionate for military personnel still to be investigated for some months or even years after the comparatively minor offence has been allegedly committed. Of course I beg leave to withdraw the amendment.

Cadet Forces

Baroness Goldie Excerpts

Monday 1st March 2021 Lords Chamber

[Lord Lingfield (Con)]

My Lords, I remind your Lordships of my charitable interest as chairman of the Cadet Vocational Qualification Organisation, a post I took over from the noble Lord, Lord West.

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

My Lords, the cadet forces are following the overarching UK Government and, where applicable, devolved Administration rules and guidance on Covid matters. Throughout the pandemic, cadet headquarters have accelerated virtual training programmes, through innovative IT solutions. There will be a cautious but progressive return to face-to-face cadet activity. Based on previous experience and the development of Covid-safe practices, the cadet forces are well placed to return to normal activity as soon as conditions permit.

[Lord Lingfield (Con)]

My Lords, I am grateful to my noble friend for her helpful—indeed, hopeful—reply. Does she agree that there seems to be no reason why cadets should not parade as soon as possible, now that schools are back? Does she also agree that cadet activities, whether Army, sea, Royal Air Force or CCF, are not just a welcome recreation for young people, but for many, especially in areas of deprivation, a route away from trouble and the youth justice system, and a pathway towards vocational skills and possibly employment?

[Baroness Goldie (Con) [V]]

I thank my noble friend for his support of and interest in the cadet forces. Taking his latter point first, I entirely agree that the proven benefit to young people of being in the cadet forces is demonstrable; it has an extremely beneficial effect on them in the development of their personal skills and as they prepare for life in the future. As to return, we shall require to be informed by the relevant guidance and rules at the time. There is certainly an appetite to resume face-to-face activity.

[Lord Morrow (DUP) [V]]

My Lords, I am most familiar with the Army Cadet Force, because I am a former member and I benefited much from that in my teenage years. The guidance and instruction I received stayed with me. However, it is extremely difficult for cadet forces to function properly without face-to-face activity. Will the Minister assure the House today that the ACF and other cadets—and, indeed, other voluntary youth organisations, which are an intricate part of society—will be given every assistance when some normality returns? Where does she see the ACF and other cadets on her list and what is the indicative timetable? Please will the Minister help us with that information?

[Baroness Goldie (Con) [V]]

The noble Lord will understand that I cannot give a specific timetable, but I can reassure him that there is certainly a desire throughout the United Kingdom, where the cadet forces are such an important presence for our youth in the four nations, to let them resume their activities as soon as guidance and rules permit.

[Lord Lancaster of Kimbolton (Con)]

My Lords, like many, I started my uniformed career as a cadet, in my case an Air Force cadet at Kimbolton School Combined Cadet Force. I have no doubt that the discipline it gave me helped me in my modest academic achievements. One of the great success stories in recent years has been the cadet expansion programme, with 500 new cadet forces created by 2016. Will my noble friend update the House on how the target of reaching 60,000 cadets by 2024 is progressing?

[Baroness Goldie (Con) [V]]

I reassure my noble friend that the expansion scheme has been a great success, exceeding time limits for achievement. Obviously, the pandemic has had an impact, not least on our school recruitment, because we have missed the September 2020 date, for example. But there is a strong partnership between the MoD and our cadet units in schools and we are mindful of that. That is partly governed by the Department for Education as well. I thank my noble friend for raising the issue. It is an important programme and we are confident of it making positive progress.

[Lord Stirrup (CB)]

My Lords, the cadet forces constitute one of the finest youth organisations in the land, but they are crucially dependent on the adult volunteers who organise them and run their activities. These people have come under increasing pressure in recent years, because of growing regulatory and other burdens, and have found their roles becoming less rewarding. Can the Minister assure the House that, in the wake of Covid, the Ministry of Defence will place sufficient emphasis on recruiting and retaining these adult volunteers, without whom the cadet forces simply would not exist?

[Baroness Goldie (Con) [V]]

The noble and gallant Lord is absolutely right. We are very mindful of the significance of the role played by our cadet force adult volunteers, to whom I pay tribute for their extraordinary achievements during the pandemic. Undeterred, they have continued to encourage and engage with the cadet forces and are deserving of our highest admiration. We recognise that within the MoD and will support them in every way that we can.

[Lord Touhig (Lab) [V]]

My Lords, I wish everyone a happy St David’s Day and put on record my interests as president of the Army Cadet Force Association in Wales. Army cadets play an active role in the community through the citizenship training that they receive. They do this thanks to the contribution of our cadet force adult volunteers, who inspire these young people, but these volunteers need to be supported, as the noble and gallant Lord, Lord Stirrup, has just said. Last year, the Army Cadet Force Association made grants totalling £200,000 to volunteers who faced financial hardship because of Covid. So I ask the noble Baroness what specifically the MoD is going to do to help these men and women whose voluntary work makes such a great contribution to the physical, mental, social and economic health of Great Britain.

[Baroness Goldie (Con) [V]]

I reassure the noble Lord that we shall support them in every way that we can. As he is probably aware, there is a youth and cadets team within the Reserve Forces and cadets division of the MoD, which engages with the DCMS and the National Youth Agency in England. We are doing everything that we can to consult, collaborate, co-operate and support.

[Baroness Garden of Frognal (LD)]

My Lords, I declare an interest as chair of the cadet health check team, where we have seen tremendous commitment, creativity and sheer hard work from staff and cadets, in creating inspirational online activities in lockdown. As has already been mentioned, the cadets are particularly important for disadvantaged young people, who learn skills, self-respect, leadership and other qualities through active engagement with others. The Minister’s previous answers suggest that she might not be able to say, but what more particularly do school cadets need to do to convince people that they can resume their life-changing work?

[Baroness Goldie (Con) [V]]

As the noble Baroness understands, the environment of a school is within the jurisdiction of, initially, the head teacher of the school and, secondarily, the Department for Education and its counterparts within the devolved nations. There is a recognition of the valuable work that cadets do and a universal desire to support their return to face-to-face activity.

[Lord Lexden (Con)]

Is it not the case that the Government’s excellent objective to increase cadet forces in state schools could be greatly assisted by drawing on the long experience of independent schools? Are the Government actively promoting collaboration between the two sectors of education in this vital area?

[Baroness Goldie (Con) [V]]

I say to my noble friend that we are always anxious to learn. He is quite correct that one of the welcome developments of the expansion programme has been to extend and increase cadets’ presence in the state school sector. I think he will also acknowledge that there are commonalities of interest. Regardless of which sector of education the cadets are in, there is a desire to share experiences and mutual learning.

[Lord Tunnicliffe (Lab) [V]]

My Lords, last year, the Government published a review of the Reserve Forces and cadets’ associations, which recommended that the council of the RFCAs and the 13 RFCA bodies should be merged into a single executive non-departmental public body. Can the Minister provide an update on this?

[Baroness Goldie (Con) [V]]

The noble Lord is aware that the MoD committed to implement the recommendations of the report. It has established a programme team to take forward the review’s recommendations, which we are doing in conjunction with the RFCAs. The report has many positive suggestions, which points to a very healthy future for the reserves and cadets.

[Lord McColl of Dulwich (Con) [V]]

My Lords, as a former Army cadet, I ask the Minister whether she agrees that it is so important to get young people to take plenty of exercise, from both a health and morale point of view. In addition, does she agree that the well-established and efficient way of controlling cadets would minimise or prevent the spread of Covid among them?

[Baroness Goldie (Con) [V]]

My noble friend is absolutely right: the experience of cadets and the activities in which they engage are conducive to good physical and mental health. We ensure that their activities are Covid-compliant. When face-to-face activities resume, we shall follow whatever the prevailing rules and guidance are.

[Baroness Stuart of Edgbaston (Non-Afl) [V]]

My Lords, in the West Midlands, we have four Army Cadet Force detachments, three RAF Air Cadet detachments and, even in landlocked Birmingham, 23 Sea Cadet detachments with over 1,000 cadets. They are an important force in the local community. I urge the Minister also to engage with local universities in the summer resumption of face-to-face contact, to ensure not only that the work continues but that new recruits are found.

[Baroness Goldie (Con) [V]]

The noble Baroness makes a very interesting suggestion, which I will certainly reflect on. Given that the age range for cadets goes up to 18, our principal engagement is with schools, but I will look into this further.

[The Lord Speaker (Lord Fowler)]

My Lords, the time allowed for this Question has elapsed.

Armed Forces Act (Continuation) Order 2021

Baroness Goldie Excerpts

Thursday 11th February 2021 Lords Chamber

Moved by

[Baroness Goldie]

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

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

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

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

If the 2006 Act expires, certain major problems arise. For example, it would be impossible to maintain the Armed Forces as disciplined bodies. Service personnel do not have contracts of employment and so have no duties as employees. Their obligation is essentially a duty to obey lawful commands. If the 2006 Act expired, members of the Armed Forces would still owe allegiance to Her Majesty, but there would be no sanctions for disobeying orders. Moreover, other disciplinary offences would cease to exist, commanding officers and service police would lose their statutory powers to investigate offences and enforce discipline, and the service courts would no longer function.

Discipline in every sense is fundamental to and underpins the existence of our Armed Forces. Indeed, it is the reason for their success in the discharge of their remarkable range of duties, whether here at home, tirelessly supporting the emergency services, local communities and assisting with the mass vaccination across the UK during the pandemic; supporting our British Overseas Territories by delivering vaccine doses; protecting our safety and security; tackling the ongoing threat of cyberattacks posed by hostile states; actively safeguarding the world’s main waterways and escorting ships to deter the scourge of modern piracy and ensure freedom of navigation in disputed waters; playing their part to counter terrorism or to combat drug smuggling and people trafficking; taking a central role in the ongoing United Nations peacekeeping operations in Mali; distributing vital humanitarian aid; continuing the war on terror by assisting and building capacity with partner nations to defeat the likes of Daesh in Iraq and Syria; maintaining our forward presence in the Baltic and northern Europe to strengthen Euro-Atlantic security; or monitoring our sovereign air space to identify any threatening presence. All that reflects a huge and remarkable range of diverse activity.

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

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

--- Later in debate ---

[Baroness Goldie (Con) [V]]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Motion agreed.

British Armed Forces: Iraqi Interpreters

Baroness Goldie Excerpts

Monday 1st February 2021 Lords Chamber

[Baroness Coussins]

To ask Her Majesty’s Government what assessment they have made of reports that Iraqi interpreters are being targeted by militia groups because of their work with foreign militaries; and what steps they are taking to protect such interpreters who have worked for the British Armed Forces.

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

My Lords, although the Ministry of Defence does not employ interpreters directly in Iraq, its contractors are held to the highest standards. The MoD takes any breach of personal security extremely seriously, and we are currently investigating the allegations.

[Baroness Coussins (CB)]

My Lords, last year’s breach of security data revealed interpreters’ IDs and car number plates, increasing their exposure to death threats, including at Covid-19 checkpoints. Can the Minister confirm that the private contractors who should be responsible for the interpreters’ safety are included within the scope of the investigation? Also, will she persuade her Home Office colleagues to upgrade their assessment of the risk to interpreters, currently rated as low, so that those who want a UK visa stand a chance of getting one?

[Baroness Goldie (Con) [V]]

I can confirm to the noble Baroness that the investigation will involve speaking to the contractor. Steps have already been taken to interview personnel concerned with Operation Shader who were in the camp between January and March 2020. The position is a little complicated in that the contractor changed, and therefore it is necessary to speak to the former contractor as well. We hope to be able to give an update by the end of February, and I undertake to report to the noble Baroness at that time. We constantly assess the risk that our interpreters are exposed to, and we have protections in place with our contractor to ensure that the best possible safeguards are afforded to them.

[Lord Browne of Ladyton (Lab) [V]]

My Lords, life for Iraqi British Army interpreters has always been terrifyingly hazardous. At least 40 have been brutally murdered by militia groups. They are targets only because they work side by side with British soldiers. We know that and we should have the evidence to prove it. The resettlement scheme that they might have used closed in 2010, and now they have no accessible visa or asylum route to safety. They deserve real and prompt action, not just words. I invite the Minister to contrast the treatment of Iraqi interpreters with that of those who have British national overseas status in Hong Kong. Why can they not be offered equal treatment?

[Baroness Goldie (Con) [V]]

I confirm to the noble Lord that when the MoD uses a third-party contractor to source interpreting services, strict conditions of contract apply, and these are incorporated into the contract. These are standards set down by the MoD for contracting requirements and deployed operations. Very particularly, they require that the operational circumstances within which the contractor capabilities are delivered to the MoD must be as safe, secure and reasonable as possible for the workforce. They set out obligations both for the MoD and the contractor to ensure that that happens, and we take those obligations very seriously.

[Lord Mackenzie of Framwellgate (Non-Afl) [V]]

My Lords, these brave people have already put themselves in harm’s way. Can the noble Baroness say how many Iraqi interpreters and their families are at risk of retribution in Iraq? Can she confirm to your Lordships’ House that the British Government owe a duty of care to those who have provided such a valuable service to British forces in times of conflict?

--- Later in debate ---

[Baroness Goldie (Con) [V]]

I cannot give the historic number of interpreters employed in Iraq, but I understand that at the time of this incident, which is currently being investigated, there were eight UK national interpreters in Iraq and eight locally recruited interpreters.

[Lord Hayward (Con)]

My Lords, may I first welcome the Minister to answering this Question? Given that she had a jab only a few hours ago, she looks remarkably well.

Perhaps I may follow the previous question in relation to the families of the interpreters. Surely the Government have an obligation not only to the interpreters, many of whom have been killed, as has been identified, but to their families, to provide some form of assistance to them as well.

[Baroness Goldie (Con) [V]]

[Inaudible.]—and I recommend that everyone should get it done the moment they get the invitation.

We take these obligations very seriously. In Iraq, as has been referred to, a scheme to cover the tranche of interpreters who were employed directly by the Government closed in 2016. Schemes in Afghanistan, where we also relied heavily on interpreters, have continued with the Afghanistan ex gratia scheme, which has enabled relocation of, so far, more than 1,300 Afghans to the UK with their dependants. We are currently about to launch the Afghan relocation assistance policy in April, which will have regard to the wider interests of the interpreters and their families.

[Lord Oates (LD) [V]]

My Lords, in raising this issue, I am very conscious of the dedication that our late noble friend Lord Ashdown showed over many years to ensure that the UK did right by Iraqi interpreters. This is a reminder of how long this issue has gone on for. Will the Minister tell us what contact has there been with the 16 people whom she referenced, who have been providing interpretation to our forces? Have the Government assessed their security protection, and will they look at granting them immediate visas to the UK?

[Baroness Goldie (Con) [V]]

I cannot pre-empt or prejudge the outcome of the inquiry that is currently taking place. I have already offered to update the noble Baroness, Lady Coussins, and I can update the Chamber as well, by the end of February, I hope, on the progress of the investigation.

[Lord Lancaster of Kimbolton (Con)]

My Lords, I start by recognising what great champions the noble Baroness, Lady Coussins, and the noble and gallant Lord, Lord Stirrup, have been for the rights of interpreters for many years, as I experienced myself during my time as a Defence Minister. While I understand why the Government have delegated the responsibility of contracting interpreters to private companies, such as thebigword, will my noble friend reassure me that the Government have not also delegated their duty of care?

[Baroness Goldie (Con) [V]]

Yes, I will I certainly offer that reassurance to my noble friend. Part of the reason that we are currently carrying out this investigation is that we want to know what happened and, if unacceptable breaches took place, why they happened and how they came about. We share a duty to our interpreters who are employed by a contractor, and the measures in place ensure that if contractors assess that the measures are not sufficient, they are entitled to highlight these immediately to the MoD. Ultimately, if these concerns are not addressed, they can withdraw their workforce without penalty. However, we hope that that situation would never arise. We take our responsibilities very seriously.

[Lord Stirrup (CB)]

My Lords, the Minister has said that the Government hold the contractors to the highest standards. What mechanisms and processes are in place to ensure that this is sustained over the long term? Threats to interpreters can arise some years after their employment; meanwhile, the contracting company may well have changed. Who then is responsible for their safety and support? I have some difficulty in seeing how this will work in practice.

[Baroness Goldie (Con) [V]]

Mindful of the vital job that interpreters do when they assist our Armed Forces on overseas operations, we would be very vigilant in trying to ensure that they were not placed at a disadvantage. The noble and gallant Lord focuses on an important point, which is part of what we consider to be our wider responsibilities. We would expect interpreters to express their concerns to us, even if they were no longer working for the contractor within the country. We still have a diplomatic presence and we would expect interpreters who were concerned to communicate either with the MoD or with the diplomatic presence.

[Lord Rosser (Lab) [V]]

I am grateful to the Minister for confirming that the Government accept that they owe a duty of care to the Iraqi interpreters we are talking about. But does she believe that the US air strikes against a top Iranian military commander and Iraqi militia leader last year have made it more dangerous not only for Iraqi interpreters but for UK personnel in Iraq?

[Baroness Goldie (Con) [V]]

[Inaudible.]—give rise to concern. But, as the noble Lord will know, we are part of a concerted endeavour against Daesh and we are there at the invitation of the Government of Iraq, who wish the coalition presence to continue.

[Lord Goddard of Stockport (LD)]

As a previous Member has highlighted, 40 Iraqi interpreters who worked with the British Army have been killed since the fall of Saddam Hussein. What support, if any, has been provided for their families in Iraq? If private contractors that are now employing interpreters have been found to breach the data in any way, no matter how unwillingly, how will Her Majesty’s Government hold them accountable?

[Baroness Goldie (Con) [V]]

We will certainly await the outcome of the investigation. If unacceptable conduct is exposed, we shall then determine how best to deal with that. We would take any such breaches extremely seriously.

Integrated Review: New Ships

Baroness Goldie Excerpts

Monday 25th January 2021 Lords Chamber

[Lord West of Spithead]

To ask Her Majesty’s Government, further to the statement on the Integrated Review of Security, Defence, Development and Foreign Policy by the Prime Minister on 19 November 2020 (HC Deb, cols 488–9), how many of the new ships have been ordered; and, if none, when the first orders will be placed.

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

My Lords, the department is currently developing plans for a new class of frigate and research vessel to support UK interests. Following the concept phases, yet to be launched, programme and procurement strategies will be determined. However, the Type 32s will be UK-built—a clear demonstration of both this Government’s and the shipbuilding tsar’s commitment to supporting UK industry and to ensuring the Royal Navy continues to have the modern ships it needs.

[Lord West of Spithead (Lab)]

My Lords, I thank the Minister for her Answer. She will not be surprised that jam tomorrow has been a regular feature of defence reviews. I am concerned that the financial pressures the MoD is under, despite the welcome four-year settlement and additional funding announced last year, will affect build programmes and impact on the already small and ageing frigate force. The recent NAO review of the MoD equipment plan states that it remains “unaffordable”. The MoD estimates a £7.8 billion shortfall, but it could be as high as £17 billion. Leading up to the long-trumpeted integrated review, has there been any discussion about putting the capital costs of the deterrent submarine replacement once again outside of the defence budget, where it was until placed inside by Chancellor Osborne in 2010? It would resolve the MoD funding problem at a stroke.

[Baroness Goldie (Con) [V]]

My Lords, all MoD obligations and commitments, including the nuclear deterrent, are budgeted for in the MoD budget. While I understand the noble Lord’s concern about the cost of the equipment plan, I reassure him that the department is taking important steps to address that. I think he is looking through his glass half-empty, rather than his glass half-full. Quite simply, the recent financial settlement for the MoD and the Prime Minister’s commitment to new naval assets mean that not only will our fleet grow for the first time since World War II, but its high-end technological capabilities will allow it to provide a better contribution and to retain a first-class Navy up to 2040 and beyond.

[Lord Touhig (Lab) [V]]

My Lords, the Prime Minister in his Statement on the integrated review said that it will ensure a “renaissance of British shipbuilding” across the United Kingdom—in Glasgow and Rosyth, in Belfast, Appledore and Birkenhead—and it would guarantee jobs. This is most welcome, but how many jobs are guaranteed and, with 1.7 million unemployed, where is the focus on job creation?

[Baroness Goldie (Con) [V]]

My Lords, the scale of the shipbuilding capacity contemplated for the next decade and beyond is a very positive message for jobs. We all acknowledge that when shipbuilding orders are placed, the companies and communities around them benefit. We have seen that to good effect on the Clyde, the Forth and other shipyard locations south of the border, and that is very welcome. The estimate of jobs for the new craft is difficult to determine at the moment. There is an estimate that the Type 32, for example, represents an investment in UK shipbuilding of over £1.5 billion for the next decade and that would create and sustain roughly 1,040 jobs.

[Baroness Smith of Newnham (LD) [V]]

My Lords, defence is a reserved matter; shipbuilding is not. Will the Minister tell the House what is the likely impact on shipbuilding procurement on the Clyde and the Forth if Scotland were to become independent?

[Baroness Goldie (Con) [V]]

My Lords, our industrial partners in Scotland, principally BAE and Babcock, are trusted industrial partners doing what is acknowledged to be tremendous work in shipbuilding the Type 26 frigates on the Clyde and the Type 31 at Rosyth on the Forth. The plans for independence at the last referendum were shrouded in total uncertainty by those who advocated independence. The noble Baroness is right to raise the concern, because it is pretty clear that an independent Scotland would not be able to commission work to the scale that we currently see placed with yards in Scotland.

[Lord Lancaster of Kimbolton (Con)]

My Lords, defence’s integrated operating concept highlights the need to deploy fully our assets on a persistent basis. As we discussed last week in Grand Committee, this can only help defence’s contribution to global Britain. Given the obvious success of the deployment of HMS “Montrose” to Bahrain, where it will be for a number of years, does this mean that we will now see Royal Naval assets forward deployed, perhaps, to Gibraltar, Singapore or elsewhere?

[Baroness Goldie (Con) [V]]

My noble friend raises an important point, which effectively goes to the heart of why we have Royal Naval assets and what we think their primary purpose is. I reassure him that we are actively expanding the model of permanent forward deployment of ships such as “Montrose”. For example, HMS “Forth”, like her predecessor “Clyde”, is currently forward deployed to the Falkland Islands; a further Batch 2 offshore patrol vessel “Medway” is operating in the Caribbean region; and the recent operations of HMS “Trent” in the Mediterranean and Atlantic have been centred on our permanent joint operating base in Gibraltar. We intend to build on this model in the coming months and it is a key consideration for the role of the new Type 31.

[Lord Houghton of Richmond (CB) [V]]

My Lords, I draw attention to my relevant interests in the register. Despite the very welcome uplift in defence spending announced last year, the affordability of much of the new capability promised, such as new ships, rests on the need to retire current capabilities quite quickly—some arguably prematurely. Will the Minister inform the House of when such decisions will be made and which capabilities will be affected?

[Baroness Goldie (Con) [V]]

My Lords, in the timetabling of shipbuilding and the estimated dates for taking delivery and for vessels being in service, a close eye is kept on the need to maintain our key operational obligations. That eye is vigilant and I reassure the noble and gallant Lord that the issues to which he refers are very much at the forefront of MoD thinking. We consult our industrial partners frequently to ensure a smooth transition.

[Lord Thomas of Gresford (LD) [V]]

The Prime Minister said that he was breaking free from a vicious circle. He said that

“we ordered ever decreasing numbers of ever more expensive items of military hardware, squandering billions along the way”.—[Official Report, Commons, 19/11/20; col. 488.]

He now wants to spend an extra £16.5 billion in the “teeth of the pandemic”, as he put it. Given that the Conservative Party has been in control of defence spending for over 10 years, what “important steps”, to use the Minister’s words, have been made to date in procurement and auditing to avoid further squandering?

--- Later in debate ---

[Baroness Goldie (Con) [V]]

The noble Lord raises an important question. Of course, for five of those 10 years, his party was part of the coalition Government, sharing responsibility for the Ministry of Defence. His important point merits attention and we look carefully at how we now procure. For example, the model for the Type 31 procurement achieved a concept—a placing of order—extraordinarily quickly, because there had been a recognition that we needed to be much more effective and swift in our approach to procurement. The noble Lord raises an important point and I reassure him that it is very much before the MoD and we are applying measures to implement good practice.

[Lord Empey (UUP) [V]]

My noble friend’s initial response referred to supporting UK industry. The fact is that the building of warships has been irregular and sporadic and it has been very difficult for companies to sustain a qualified workforce, because of the nature of the orders. Will the Minister assure the House that this time business and orders will be given and spread over the UK, including to Harland & Wolff in Belfast so that shipbuilding can be sustainable in the long-term, rather than reacting to sporadic and irregular orders?

[Baroness Goldie (Con) [V]]

It is right to refer to what the Prime Minister said because he recognised what had been, frankly, a corrosive problem in the way in which the procurment of Royal Naval assets was embarked on. The National Shipbuilding Strategy identified the challenges and weaknesses to which the noble Lord has referred, and the strategy was clear that a much more stable approach had to be adopted in respect of UK shipbuilders. What is happening currently is clearly good news for UK shipbuilders, and the noble Lord has rightly raised the matter of cross-UK activity. I am pleased to say that, with Harland & Wolff taking over the Appledore shipyard, the Government are working closely with the company to understand better how we might support our shipbuilding industry throughout the United Kingdom. That is the commitment made by the Prime Minister and it is one that we will see being sustained by the recently announced intentions for Royal Naval assets.

[The Deputy Speaker (Lord Lexden) (Con)]

My Lords, the time allowed for this Question has now elapsed. We now come to the third Oral Question.

British Armed Forces: Global Britain

Baroness Goldie Excerpts

Thursday 21st January 2021 Grand Committee

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

My Lords, I congratulate my noble friend Lord Lancaster on securing this valuable debate and thank your Lordships for a stimulating discussion. I know your Lordships felt constrained by time, and trying to listen to your excellent contributions was rather like listening to a constantly beating staccato drum—so, if I do not manage to include everyone in my remarks, I apologise.

My noble friend laid out very well the extraordinary contribution that our Armed Forces make to the security and influence of the UK, not least our support of humanitarian and peacekeeping work and training. Globally, the Armed Forces truly are ambassadors and defenders of the UK’s values, prosperity and security. Indeed, the noble Lord, Lord Bilimoria, both acknowledged and paid tribute to that, for which I thank him. Particularly, he asked that we build closer links with friends and allies. I agree and confirm that India is indeed a valued ally.

To illustrate the range of activity I can report that, over the festive period alone, more than 6,000 military personnel were deployed on 39 operations in 46 countries. That eloquently underpins the concept of global Britain. As global competition deepens, as the challenges of Covid-19 put strain on the international system, as nations seek to find an edge—through fair means and foul—we face an unprecedented and accelerating challenge. While the Armed Forces already make an indispensable contribution to our security, prosperity and values, and to global Britain, we can and will do more. We shall be more globally engaged: actively competing and collaborating to defeat and deter our adversaries, working ever more closely with allies old and new, extending our reach to new theatres and domains, and tackling global challenges to our safety and prosperity. That is why the Prime Minister announced more than £24 billion for next-generation military capability, cementing our place as a leader in NATO, defending our people from new and evolving threats, operating globally, protecting the world’s most vulnerable, and bringing jobs and prosperity to every part of the United Kingdom. That is something of which we can all be proud; it means that global Britain is not some empty piece of rhetoric but a very solid concept. The MoD and our Armed Forces are certainly demonstrating —dramatically—just how solid a concept that is and how valuable it is to the rest of the world.

My noble friend Lord Lancaster raised a number of important issues that were echoed by the noble and gallant Lord, Lord Boyce, the noble Lord, Lord Liddle, and many others. I can reassure my noble friend and the noble Baroness, Lady Smith of Newnham, that humanitarian response and United Nation peacekeeping will continue to be an important component of the MoD’s engagement activity. As my noble friend is right to point out, the integrated review proposes a transformation in the Armed Forces to increase our presence and engagement across the world. Two important components of this will be agility and persistence. It is vital that the Armed Forces are flexibly deployed into the situations where they can deliver the greatest value, whether this be supporting United Nations peacekeeping and French counterterrorism operations in Mali, or delivering humanitarian aid to the Caribbean. The Armed Forces will do more to deliver this Government’s integrated approach to foreign policy and soft power, a point that my noble friend specifically mentioned, as did the noble Lord, Lord Mountevans.

The noble Lord, Lord Hain, in connection with current and recent issues, raised the very important matter of Gibraltar—a key defence base that occupies a special place in our affections. As he pointed out, it is of huge strategic importance. Around 440 military personnel, from all three services, are supporting Gibraltar. We are pleased that they can look to the future with greater certainty as a consequence of the outlined agreement.

The noble Lord, Lord Campbell of Pittenweem, raised Mali and mission creep. I seek to reassure him that the terms of deployment are clearly defined and they are over a specific time. Mission creep is not something that we would ever want. He is right to raise that prospect because there have been painful lessons in the past, but we are very cognisant of how these deployments must be closely described, defined and monitored. Indeed, in Africa, some 300 British troops and RAF Chinook helicopters are working alongside French and United Nations colleagues to support counterterrorism operations and a United Nations peacekeeping mission. In Somalia, 65 British service personnel support peacekeeping and training missions with Somali forces. As my noble friend Lord Lancaster said, that is another indication of the dimension and the broad spectrum of the support we can give.

The noble Baroness, Lady Coussins, raised languages. I totally agree with her: it is an essential support that we value. I did not make a detailed note of the point she raised, but I will look at Hansard and endeavour to respond to her.

Many of your Lordships raised the broader questions of international security, international influence, how we deploy our resources and what our objectives are. In among all that, the noble Lord, Lord Dannatt, raised international aid. As I said, the Government are committed to our aid and support role, and our Armed Forces play an important role in the discharge of that obligation.

The noble Earl, Lord Sandwich, and other noble Lords raised the issue of activities and influence, the noble Lord, Lord Truscott, mentioned south-east Asia, and the noble Baroness, Lady Smith, asked about coherent activity. The best illustration of that is possibly the carrier strike group, which I feel illustrates the point well. The United Kingdom reached a major milestone in December, when it declared that its carrier strike programme had achieved initial operating capability. The Defence Secretary, Ben Wallace, and the US acting Secretary of Defense, Christopher C Miller, co-signed the UK-US joint declaration for the carrier strike group 2021 deployment. This declaration paves the way for a successful inaugural operational deployment of the UK carrier strike group alongside its allies. The joint declaration supports the UK carrier strike group, led by the UK’s aircraft carrier HMS “Queen Elizabeth” on its inaugural deployment later this year.

This deployment embodies the strength of our bilateral ties and reflects the depth and breadth of this vital defence security partnership. It will include the Indo-Pacific region working together with allies to send a clear signal of our commitment to the region. But this will not be a flash-in-the-pan activity, as some of your Lordships, particularly the noble Baroness, Lady Smith, were concerned about; it is all part of a coherent approach. The deployment supports the UK’s deep and enduring defence relationships, such as the vital Five Eyes partnership, our ongoing commitment to supporting United Nations operations in the region and our desire to advance bilateral security co-operation with ASEAN nations.

My noble friend Lady Anelay of St Johns raised the important matter of Afghanistan, as did a number of your Lordships, and I will just cover the points that she raised. She referred to her committee’s work on the recent publication of the International Relations and Defence Committee report, The UK and Afghanistan. I pay tribute to my noble friend and her committee for a very useful report. It seemed a most comprehensive review of everything that has happened, with some very useful pointers as to where we ought to be looking. I reassure her that we remain committed to supporting Afghanistan in its journey towards lasting stability and security. The United Kingdom is the third-largest troop contributor to the Resolute Support Mission, with around 850 personnel deployed. We remain committed to building Afghanistan’s stability and security, committing £70 million in military funding and £155 million in development funding for 2021. Again, that is a useful indicator of the Government’s intention relating to their overseas responsibilities.

Our valued contributions make us well placed to influence our NATO allies and our partners, including the new United States Administration. We look forward to engaging with President Biden and his Administration. It is already clear that the United Kingdom and United States have much in common on a range of issues. I reassure my noble friend that we will seek that engagement at the earliest opportunity to reiterate our continued commitment to Afghanistan.

A number of your Lordships, including the noble Lords, Lord Touhig, Lord Anderson of Swansea and Lord Truscott, and the noble Baroness, Lady Wheatcroft, raised the integrated review and the issue of defence spending and budget. We are increasing defence spending by an additional £16.5 billion over the next four years—the biggest investment in the UK’s Armed Forces since the end of the Cold War. That marks the first outcome of the integrated review. It will enable modernisation of the UK Armed Forces, with at least £6.6 billion for research and development. The full conclusion of the integrated review will be announced in the coming months.

The right reverend Prelate the Bishop of Portsmouth raised the matter of our veterans—a matter dear to the hearts of us all. We offer support and advice across a range of areas through the Office of Veterans Affairs and our support for veterans’ charities. The case that he referred to was troubling and, if he wishes to provide me with more information, I shall investigate.

This has been an excellent debate. It has highlighted the broad contributions of the Armed Forces to global Britain. The value of the defence contribution to global Britain, as I have already said, cannot be overstated. This year will be a turning point: not only will it see the inaugural deployment of the carrier strike group, to which I referred; it will be a demonstration of the United Kingdom’s technological and industrial prowess, and a sign of our enduring commitment to allies across the world. It will also see the publication of the integrated review—a very important development, setting in motion the transformation of the reach and impact of our Armed Forces across the world and delivering a global Armed Forces ready for a global Britain.

I thank my noble friend for calling this debate and all noble Lords for their very interesting and thought-provoking contributions.

[The Deputy Chairman of Committees (Baroness Healy of Primrose Hill) (Lab)]

The Grand Committee stands adjourned until 5 pm. I remind Members to sanitise their desks and chairs before leaving the Room.