Service Family Accommodation

Baroness Smith of Newnham Excerpts

Wednesday 21st December 2022 Lords Chamber

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

I echo the words of my honourable friend in the other place. Yesterday, he said—quite correctly—that

“it is unacceptable that some of our personnel and their families are not receiving the level of accommodation services—in the form of maintenance standards—from our suppliers that they deserve and, in particular, are suffering from a lack of heating and hot water.”—[Official Report, Commons, 20/12/22; col. 143.]

As the noble Lord will be aware, there has been a chronicle of dissatisfaction with the way in which contractors have been discharging their duties. We are very disappointed by contractors’ poor performance.

I can assure the noble Lord that some important improvements have been made. Our rectification plan started back in mid-September. First, my honourable friend the DPV Minister and the Secretary of State have met the contractors Pinnacle, Vivo and Amey to discuss these problems and express our deep concern. I assure the Chamber that we are holding them in a vice-like grip; there are penalties in the contract. My senior MoD colleagues are also meeting contractors fortnightly at the executive level—that is, chief executive and above. Every day, people in the MoD are engaging with their counterparts in the contracting companies who are carrying out the improvements on the ground.

Improvements have been made steadily, and the systems have been improved. However, I agree entirely with the noble Lord that anything less than habitable accommodation kept in good order is not acceptable. The MoD is conscious of that and conscious of the debt we owe our Armed Forces personnel. We are doing everything in our power to improve the situation, and evidence of improvement is there.

[Baroness Smith of Newnham (LD)]

My Lords, this issue is not new. Before the Minister took her place as the Minister of State for Defence, the noble Earl, Lord Howe, listened to my complaints about service accommodation so many times that he said he would meet me. In the end, he sent the then Minister, Tobias Ellwood, to meet me. At the time, I pointed out a Facebook page called “Victims of CarillionAmey”, which still exists. Carillion is no longer with us but the point was about the response on service accommodation to service personnel, particularly their spouses. Often, a wife at home is unable to work because she has to spend so much time waiting at home for maintenance people who do not come. The answers so far have been good, but can the Minister assure the House that there will be not just changes to the number of meetings but some proper key performance indicators that are to be met?

[Baroness Goldie (Con)]

The noble Baroness’s entreaties of my predecessor and noble friend Earl Howe were to very good effect because it was part of a systematic approach to the MoD about quality of accommodation for our service personnel. I can reassure the noble Baroness by saying that Pinnacle has increased the number of call handlers from 14 to 56, VIVO has boosted the number of contractors by 27%, Amey has boosted the number of contractors by 60%, and 15,000 heaters have been bought and are being distributed.

I asked officials this morning that if I were in that accommodation with two vulnerable young children and the heating went off, what could I do and how quickly could I do it? I was reassured that there is now, through Pinnacle, a 24/7 365 helpdesk where calls are triaged so that the urgent ones are dealt with and get a response. The caller is given a reference and there is a response within 48 hours, although the majority of calls are being responded to quicker than that. As I said earlier, we are holding the contractors in a vice-like grip: we are holding their feet to the fire. What has happened has been profoundly unsatisfactory, and I pay tribute to the noble Baroness for her efforts in drawing attention to it.

Afghanistan: Independent Inquiry

Baroness Smith of Newnham Excerpts

Tuesday 20th December 2022 Lords Chamber

[Lord Coaker (Lab)]

My Lords, His Majesty’s Opposition welcome this special inquiry under Lord Justice Haddon-Cave into alleged unlawful activity by His Majesty’s Armed Forces, and the fact that it will start in early 2023. We also welcome the fact that this work will provide full legal and pastoral support.

Can the Minister confirm at the outset that the inquiry will be given access to all the records, documents and other evidence that it needs, as well as personnel? The reputation of our Armed Forces and our Special Forces is second to none and we are rightly proud of them. However, we are also proud of the high standards of military ethics, professionalism and respect for international law that we abide by and uphold. Therefore, does the Minister agree that an inquiry such as this is essential to protect the reputation that we rightly have, and that it must not only succeed but be seen to succeed?

There are currently two ongoing judicial review cases which have informed this decision to have the independent inquiry. Can the Minister outline the relationship between these judicial reviews and the inquiry? The Minister’s Statement says that the MoD accepts that Operation Northmoor should have started earlier and that there may be further lessons to learn from the incidents, despite there being insufficient evidence for any prosecution.

The terms of reference allow the investigation to look at whether there is any credible information that any of those who died in the DDOs carried out between mid-2010 and mid-2013 were killed unlawfully. What happens if they find such information? Are prosecutions then possible concerning Operation Northmoor, despite what was said in the Statement? What has changed in the MoD since July, when the BBC’s “Panorama” reports on these allegations were immediately dismissed by the MoD as irresponsible, incorrect and jumping to unjustified conclusions? Now, just a few weeks later, we have an independent inquiry. What changed?

Can the Minister confirm that the terms of reference allow the inquiry to substantiate any allegations, as well as how the allegations were handled? Can she clarify that the inquiry’s independence is fully assured, given that it is to take place in the MoD? And can she confirm that, as this inquiry was established under the Inquiries Act 2005, it is statutory and, therefore, that Lord Justice Haddon-Cave can summon whichever witnesses he sees fit and, if necessary, compel them to attend and give evidence under oath? Can he also ask any serving military personnel to attend the inquiry, whatever their rank? Does that also apply to civil servants, and political and other personnel? In the same period that is the subject of this inquiry, Australian Special Forces were also being investigated. Have we spoken to them to see if we can learn any lessons from them?

Then there are the implications, or potential implications, of this inquiry for Acts that have been passed and Bills currently before Parliament. I will give two specific examples. Can the Minister assure us that nothing in the Overseas Operations (Service Personnel and Veterans) Act will prevent or hinder the investigations of this inquiry? Of course, we are all opposed to repetitive, vexatious, historic claims, but some clarification and reassurance is needed here.

Furthermore, can the Minister tell us whether the inclusion of Clause 28 in the National Security Bill has anything to do with this inquiry? In other words, is the proposed legislative change in this Bill a consequence of what has or has not happened? Clause 28 of the National Security Bill amends Schedule 4 to the Serious Crime Act 2007 to provide that extraterritorial application of certain offences of assisting or encouraging the commission of an offence overseas does not apply if the behaviour was necessary for the proper exercise of any function of the intelligence services or Armed Forces.

Section 50 of the Serious Crime Act already provides a defence of acting reasonably where the defendant believed certain circumstances to exist and the belief was reasonable. The House of Commons Library states:

“The provision … appears to be intended to extend immunity from criminal prosecution to actions which could not be proved to have been reasonable.”


What, if any, discussions have the MoD had with the Home Office about Clause 28, and is it relevant or not?

I finish by quoting Minister Murrison, who said:

“I hope that the whole House shares my pride in our armed forces. They are renowned throughout the world”.—[Official Report, Commons, 15/12/22; col. 1259.]


Well, we all do, and we are very grateful for their professionalism and loyal service. It is because of that that we need to make sure that we get this inquiry right and that everyone is committed to seeing it succeed.

[Baroness Smith of Newnham (LD)]

My Lords, I start exactly where the noble Lord just left off: by acknowledging the debt we owe our Armed Forces and the high standards to which we hold them and to which the vast majority always adhere. But it is vital for the reputation of His Majesty’s Armed Forces and of our country that, if there has been illegal, inappropriate and unlawful action, it is investigated.

These Benches endorse all the questions that the noble Lord has just asked from the Labour Benches. They are all pertinent to the questions that the House should be asking, but I will add just a few points for further clarification.

One of the first questions that came to my mind was indeed about the Overseas Operations (Service Personnel and Veterans) Act 2021. I note that Minister Murrison had almost second-guessed what noble Lords might ask by saying that the 2021 Act was always designed to enable the investigation and follow-up of any serious allegations, irrespective of time passed. So I ask the noble Baroness whether it is possible to reassure the House that none of the issues that will now be subject to the inquiry could be deemed out of scope under the purview of this Act. One of the serious concerns expressed by all sides of your Lordships’ House was that, precisely by having a time limit, certain crimes and unlawful actions would not be investigated. The House really needs reassurance about that. It is notable that the actions we are talking about date back over a decade, from mid-2010 to mid-2013. The timeframe is therefore very significant.

As the noble Lord pointed out, there are two cases of judicial review at present. It would clearly not be appropriate to ask questions or expect an answer on those at the moment, but might the Minister be able to tell us whether His Majesty’s Government believes that these are the only cases that need to be investigated, or whether the Ministry of Defence is anticipating that there could be further significant cases coming forward? At the moment, we are looking at potentially quite a limited inquiry. However, it could be very significant indeed. Some reassurance would be welcome.

The final point is on the question that we have already heard about the National Security Bill currently going through your Lordships’ House. How does Clause 28 fit with the investigation and the overseas operations Act? Can we, as a Parliament and a country, actually expect there to be proper scrutiny? Clause 28 seems to pave the way for some lacunae in the law. Can the Minister reassure us? If not, she should expect a number of amendments to the National Security Bill from all parts of your Lordships’ House.

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

My Lords, I thank the noble Lord, Lord Coaker, and the noble Baroness, Lady Smith, for their welcome of the announcement of the statutory inquiry into events in Afghanistan. I also thank them for and endorse their comments about the pride that we all have in our Armed Forces. The Secretary of State has been at pains to say that our Armed Forces operate to the highest standards and are hugely respected, as was echoed by my right honourable friend Dr Murrison in the other place. That is why, to be honest, the United Kingdom is one of the very popular choices to provide training: because of the very high standards that we observe.

I entirely endorse what the noble Lord, Lord Coaker, was saying: where we think that things may not have gone satisfactorily, or where there is doubt or uncertainty about what happened, then yes, for the broader reputation of the Armed Forces, we are equally anxious to have that investigated, and in a thorough and robust fashion.

I will take my remarks to be inclusive of the noble Lord, Lord Coaker, and the noble Baroness, Lady Smith. On the question about access to documents, this is a statutory inquiry. That means that it can call witnesses and has the power to compel them to attend, and they give evidence under oath. It will be for the inquiry and chairman to determine what evidence they seek and which witnesses they want to call. I want to make it clear that, given the gravity of the allegations that have been the genesis of announcing this inquiry, it is certainly the Secretary of State’s intention that the inquiry will address any remaining concerns that there was a failure to adequately investigate alleged systemic issues in order to comply with the investigative duties which arise under Articles 2 and 3 of the ECHR.

A further question was asked about how the judicial reviews, of which there are two at the moment, in respect of Saifullah and Noorzai, engage with the inquiry. The Secretary of State for Defence has applied for stays in the Saifullah and Noorzai judicial reviews while the inquiry takes place. The claimant has agreed to stays in both on the basis of the establishment of the inquiry, so the claimants have been party to this. A hearing on that application for a stay is scheduled for January.

A point was raised on the legal scope of the inquiry—what it can and cannot do. It can do a very great deal to try to find out what has happened. Noble Lords will have seen the wide-ranging terms of reference, which I looked at again today. They are very thorough indeed. I might describe them as an attempt to lift up every stone and to try to ensure that every possible angle is investigated. Again, I assure your Lordships that Saifullah and Noorzai were party to and consulted on the terms of reference.

The inquiry does not have the power to determine civil or legal liability, but it does have the power, on the basis of evidence, to draw conclusions and make recommendations. Potential criminal or civil liability might very well be inferred from or arise out of that. The specific question was about what would happen if the inquiry considered that anyone was killed unlawfully. It would be a matter for the independent prosecution to determine how to proceed in such a scenario.

The noble Lord, Lord Coaker, referred to the “Panorama” programme. The Royal Military Police has asked for whatever further evidence there is. We have not received any fresh evidence, but, again, we are handing this over to the inquiry and to Lord Justice Haddon-Cave. It will be for him to pursue these matters.

On the timing of this, the Secretary of State proposed the inquiry, and work began on it, in May 2022.

My understanding is that the Brereton inquiry, which was the Australian inquiry, was slightly different in nature from this inquiry. A key difference is that the Brereton report started the investigation, whereas we have already done extensive criminal investigations of allegations, so we are starting from a slightly different point. Interestingly, the Australian Department of Defence and the Chief of the Defence Force said in letters to counterparts that

“there are no British service personnel who are persons of interest or affected persons as a result of this Inquiry”.

I merely inform the Chamber of what was said at the time.

Questions were asked about the overseas operations Act. That Act was an important attempt to try to reduce the prospect of unlimited clouds hanging over personnel of not knowing whether they would be prosecuted or become the subject of civil proceedings. The new protections for service personnel introduced by that Act apply to any proceedings commenced after 30 June 2021. That Act is not an amnesty, as your Lordships will recall. It raises the bar for prosecutions for alleged historical incidents, and it certainly provides greater certainty to our service personnel.

Your Lordships will recall from when we debated the then Bill in this House that there is now a presumption against prosecution, but it is a rebuttable presumption. The prosecutor has to have regard to various things, not least whether any new evidence has been produced. Finally, before any new proceedings could be brought, the consent of the Attorney-General would be required. Your Lordships will also recall that the Act does not extend protection to specific crimes: sexual offences, genocide, crimes against humanity, war crimes, torture and grave breaches of the Geneva conventions. The restrictions on prosecutions in the overseas operations Act do not apply to any of these offences.

On Clause 28, I must thank the noble Lord, Lord Coaker, for giving me notice of this because it is a technical issue which I was not sighted on. As I think the noble Lord gleaned from my expression in the Corridor, my understanding of the point was limited, but I have made inquiries, and I am advised that Clause 28 of the National Security Bill, if enacted, would not affect the ability of the Secretary of State to establish a statutory inquiry. A Government Minister can establish an inquiry where they consider that particular events have caused or are capable of causing public concern, so it is a broad power that is used in a wide range of circumstances.

However, in law, Clause 28 has a narrow and specific purpose. It amends Schedule 4 to the Serious Crime Act 2007, which, together with Section 52 of that Act, provides for various inchoate offences. I appreciate that we are not sitting in a Chamber crammed full of lawyers, but “inchoate” is an offence anticipating or preparatory to a further criminal act, just to help your Lordships understand that. The Act that is being amended provides for various inchoate offences of encouraging or assisting crime to apply when the Act relates to the commission of an offence overseas. That clause will disapply extraterritorial application when the activity is deemed necessary for the proper exercise of any function of the Armed Forces. This ensures that those working for or on behalf of the Armed Forces in support of activities overseas would not be liable for those offences, but I emphasise the use of the word “proper”. Again, this is not some “get out of jail free” card. If people have behaved improperly, they can expect to be accountable in law. I have no doubt that the noble Lord will want to digest that. If he or the noble Baroness, Lady Smith, have any further questions, I shall be very happy to engage with both of them to see whether I can assist further in clarifying that matter.

The final question the noble Baroness, Lady Smith, asked me, I think, was whether the two judicial reviews are the only cases to be investigated. According to my briefing notes, these are the only two active judicial review applications of which I am aware. I disagree with the noble Baroness—it rarely happens, but on this occasion I do—as she described the inquiry as “limited”. Having looked at the terms of reference, I would describe it as anything but limited. To me, it is one of the most far-reaching and analytical—

[Baroness Smith of Newnham (LD)]

I did not mean that the inquiry was limited; I meant that if we are looking at two cases, that seems to be a relatively small number of allegations that are being looked at, but not that the inquiry itself was limited.

[Baroness Goldie (Con)]

I thank the noble Baroness for the clarification; I apologise if I misrepresented her position. I think we all understand from looking at the terms of reference that the inquiry is going to have a broad scope, immense powers and a real capacity to try to find out what was happening in the periods covered by the terms of reference. I would not want to pre-empt that. It will be for Lord Justice Haddon-Cave, once he has constituted his panel with the inquiry, to proceed and go wherever the evidence takes him. As your Lordships will be aware, in the terms of reference it is hoped that he may be able to report back, albeit on an interim basis, within the next 12 to 18 months, his work starting in January of next year.

Military Personnel: Strike Action Cover

Baroness Smith of Newnham Excerpts

Monday 19th December 2022 Lords Chamber

[Baroness Goldie (Con)]

I have detected frequently in this Chamber—I do not think it necessary to seek that reassurance again—that there is huge respect and affection for our Armed Forces, a respect and affection which I personally try to embody and observe. While we are committed as a Government to protecting people from strike disruption during a challenging winter, we are sensible to the fact that repeated employment of our Armed Forces in routine domestic tasks, for which civil authorities are responsible, is not a viable long-term solution. There, I agree with the noble Lord. We are also very conscious of our public obligation to keep core services running. That is why I applaud the Armed Forces who are responding to the MACA request and will do their level best to mitigate the suffering that is currently so widespread.

[Baroness Smith of Newnham (LD)]

My Lords, from these Benches as well, we support our Armed Forces. What assessment have His Majesty’s Government made of the size of the Army? As the Chief of the Defence Staff said, our Armed Forces cannot be “spare capacity” in times of strikes. Are our Armed Forces really large enough for everything that the Government expect them to do?

[Baroness Goldie (Con)]

I reassure the noble Baroness and the House that I and my ministerial colleagues are clear about the primary task of the Armed Forces: defence of the realm. We would not approve a request for military aid if it put our ability to undertake that task at inappropriate risk or if we felt it compromised our operational effectiveness. We would not allow that to happen.

Armed Forces (Court Martial) (Amendment) Rules 2022

Baroness Smith of Newnham Excerpts

Tuesday 8th November 2022 Lords Chamber

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

My Lords, this statutory instrument consists of changes to the rules applying to the court martial contained in Schedule 1 to the Armed Forces Act 2021. Three of the four changes implement recommendations from the review of the service justice system by His Honour Shaun Lyons.

The rule changes state that six-member boards are required if the offence is a Schedule 2 offence—serious offences, such as grievous bodily harm, which must always be referred to service police for investigation—or if the offence carries a maximum penalty of more than two years’ imprisonment. They introduce Rule 30 to determine when an additional member can be appointed to a three-member board. This is to address the concern that three-member boards hearing cases lasting several days may be vulnerable to an unexpected loss of a member, which would result in the board not being quorate or validly constituted. The changes also introduce Rule 30A to allow a direction to be made to allow proceedings to continue if a board is reduced from four to three or six to five members. They also extend those ranks applicable to sit on a court martial board to include OR-7 personnel; these are senior NCOs such as chief petty officers or staff sergeants. The rules introduce other minor amendments to the court martial rules in consequence of these changes.

To explain further, the first rule change implements His Honour Shaun Lyons’s recommendation that a six-member board should be required if the offence is a Schedule 2 offence or carries a maximum penalty of more than two years’ imprisonment. He found widespread agreement that the current five-member boards, which try Schedule 2 offences and offences carrying a maximum term of over seven years’ imprisonment, should increase in size to six and reach qualified majority verdicts, rather than simple majority verdicts, in which at least five of the six members have agreed. He also recommended that they try Schedule 2 offences and offences carrying a maximum term of over two rather than seven years’ imprisonment. He recommended that smaller boards, which will continue to consist of three or four members, should try all other cases and deal with sentencing in all cases where the defendants have pleaded guilty, as they do now.

We accepted this recommendation, which will allow the three-member boards to focus on the great majority of service disciplinary offences contained in Sections 1 to 41 of the Armed Forces Act 2006, and the less serious criminal offences which would normally be heard in the magistrates’ court in the civilian criminal justice system. Six-member boards will deal with the relatively small number of disciplinary offences carrying a sentence of over two years’ imprisonment, such as assisting the enemy or mutiny, as well as criminal conduct that would normally be tried in the Crown Court. We do not anticipate that lowering the threshold for when a six-member board is required—when the offence attracts a punishment of more than two years—will place an additional resourcing burden on the single services, with the existing pools of personnel provided for court martial services sufficient to meet the new requirement. However, we will monitor the situation for the first 12 months after introduction, in the same way as the other changes we are introducing to how the court martial operates, and consider whether any adjustment to this approach might be required.

The second rule change, to introduce a new Rule 30, has its background in the “pingdemic”—fondly remembered by many of us—which occurred during the Covid pandemic and which highlighted the concern that three-member boards hearing cases lasting several days can be vulnerable to the unexpected loss of one member. To deal with this, the Armed Forces Act 2021 gave judge advocates the power to add a fourth member to a three-member board to make it more viable and anticipate the board being affected by the loss of a member. The new Rule 30 details when this power can be used. Judge advocates have a wide discretion to appoint an additional member whenever they feel it to be necessary in view of the expected length or location of the proceedings. This approach is closely based on the existing Rule 30, which currently allows up to two additional members to be appointed in cases expected to last more than 10 days, or five in the case of trials being heard outside the United Kingdom and Germany.

The third rule change, new Rule 30A, follows on from the second and implements another of His Honour Shaun Lyons’s recommendations: that there must be a mechanism to cope with the death, sickness or other absence of a member occurring during a trial, which would reduce a six-member board to five members. This would reflect Section 16 of the Juries Act 1974, under which the default position is that a Crown Court trial continues despite the loss of up to three jurors, but the judge can instead choose to discharge the jury. New Rule 30A gives judge advocates the power to direct that the proceedings with a four or six-member board should continue

“in the interests of justice”,

despite the loss of a member, and that this direction may be made at any point after all the members have been sworn in.

The final rule change relates to changes made to the Armed Forces Act 2006 by the Armed Forces Act 2021 allowing personnel at other ranks—OR7—to sit as members of the court martial. These are senior non-commissioned officers, such as chief petty officers, staff or colour sergeants, flight sergeants and chief technicians. This was another recommendation made by His Honour Shaun Lyons. Currently, only officers and warrant officers may be members of a court martial and, unlike a jury in the Crown Court, the members assist the judge advocate in sentencing. Sentencing within the service justice system has a number of purposes: not least punishment, deterrence and the maintenance of discipline. OR7 ranks have the experience and an understanding of command and rank, and are well placed to be involved in the sentencing exercise, something that civilian juries do not participate in.

Extending eligibility for board membership to OR7s will also mean that the single services have a wider pool of experienced personnel to draw on. Your Lordships will recall from our debate on 18 October that this measure will also help with the new rule to increase the representation of women on court martial boards. It may also reduce the burden on officers required on boards where the defendant is of another rank. The existing rule about all members being senior to the defendant is unchanged, meaning that OR7 personnel will be able to serve on boards hearing cases only where the defendant is of the same or a lower rank.

The new rule will allow for one OR7 on a six-member board. This means that on any six-member board, there can be no more than two warrant officers, or one warrant officer and one OR7. For three-member boards, there can be either one warrant officer or one OR7. We believe that this balance of rank will ensure that the board has a broad range of experience and perspective on which to draw during their duties.

As I said, three of these four rule changes were recommended to the department by His Honour Shaun Lyons, a highly respected retired senior Crown Court judge, and the other rule change reflects a sensible business continuity measure for three-member boards. As such, I trust that noble Lords will feel able to support the approach we have taken with this statutory instrument. I beg to move.

[Baroness Smith of Newnham (LD)]

My Lords, again, from these Benches, this statutory instrument seems wholly appropriate. In particular, bringing service justice closer to the civilian system and the parallels with the Crown Court seem wholly welcome. Obviously, there are reasons why courts martial can be necessary, and some degrees of detail will inevitably be different from civilian courts. However, the more we can have something that looks very much as though it brings parity and a clear sense of justice is hugely important.

I wanted to ask about bringing in senior NCOs. The Minister mentioned the statutory instrument of a couple of weeks ago, when she talked about bringing women in as lay members. To what extent is there a danger that women NCOs could find themselves brought into more courts martial than others? Could that be an undue pressure?

Other than that, there is nothing to do other than to look forward to the review of this measure in a year and, if we remember, to look at it again in 2026, when we have the quinquennial review.

Armed Forces (Tri-Service Serious Crime Unit) (Consequential Amendments) (No. 2) Regulations 2022

Baroness Smith of Newnham Excerpts

Tuesday 8th November 2022 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, this statutory instrument has a very narrow purpose, but I am content with the detail. As the Minister indicated, it follows from the review put in hand as preliminary work for the Armed Forces Act 2021. I do not recall what assessment was made of the average number of serious crime cases for investigation in the Armed Forces that might arise in, say, a 12-month period. If the Minister has a figure, it would be helpful to have it on record.

There would appear to be some flexibility available to the new provost marshal in how much to draw on additional help within the single-service establishments to match the level and complexity of any investigation he has embarked upon. Am I right in assuming that he would be able to insist on the level of single-service effort he requires always being made available? In other words, is he senior in rank and status to his single-service equivalent? Indeed, is it ever contemplated that he might be a civilian on contract? In the service environment, the importance of the chain of command needs to be upheld, and in that context I was pleased to note that the new provost marshal is required to inform the accused’s commanding officer. I raise these points to allow the Minister to expand a bit more on these details relating to this important new post and unit.

[Baroness Smith of Newnham (LD)]

My Lords, as the noble and gallant Lord, Lord Craig of Radley, just said, this is a very narrow statutory instrument. It is perhaps surprising that its debate has such a wide audience. On the defence side of things, we are quite used to either having Statements right at the end of business or discussing SIs in Grand Committee, where there are usually about four of us. It is important that your Lordships contribute to, listen to and are part of discussions about defence, because they are so important—but the two SIs today are both narrowly focused on service justice.

Normally I would delegate all this to my noble friend Lord Thomas of Gresford, who unfortunately is not here today. In his absence I welcome the statutory instrument and note that it very much fits with the reviews we talked about on various occasions when looking at the overseas operations Bill, when the Minister repeatedly said that the Henriques report will say or do whatever. That is obviously part of this decision, as is the Lyons review.

Paragraph 7.1 of the Explanatory Memorandum notes that the defence serious crime unit should

“bring together the Special Investigations Branches of the Royal Navy Police, Royal Military Police and Royal Air Force Police”.

It then adds,

“along with specialist investigative support.”

Building on the noble and gallant Lord’s questions about availability of support, can the Minister indicate what sort of additional support might be available? Beyond that, we on these Benches are content with the SI.

[Lord Hope of Craighead (CB)]

My Lords, I intervene out of order, encouraged by what the noble Baroness just said. One point that attracted my attention is that the regulations apply to all parts of Great Britain and Northern Ireland,

“and the British overseas territories (except Gibraltar).”

Is there something particular about Gibraltar that means they do not apply there? It would be interesting to know why Gibraltar should be excluded. I am sure it is not an oversight, but the Explanatory Memorandum does not explain and it would be interesting to know the reason.

Royal Navy: Conduct towards Women

Baroness Smith of Newnham Excerpts

Wednesday 2nd November 2022 Lords Chamber

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

I thank the noble Lord. As indicated, when these very serious allegations surfaced, the First Sea Lord acted immediately to express his profound concern and order an investigation. My understanding is that the investigation commenced on 24 October. There is a scheduled date of completion of 18 November, with the caveat that there is complicated work to be done. Helpfully, the complainant is, I think, prepared to appear before the inquiry. To reassure your Lordships, the investigation will include an individual from outside Defence, who is currently being selected for his or her independence, probity and integrity, who will be alongside that investigation.

On the House of Commons Select Committee report, I have regarded that as a pivotal influence in the MoD as to how we respond to behaviours within the Armed Forces. To reassure your Lordships, the committee made in total 53 recommendations and conclusions, and I am delighted to say that the MoD has accepted 50 of these. There were three that it did not accept on a matter of policy. We are busy implementing and have already substantially implemented these recommendations. We made an update report to the committee in July, and I will appear before the committee next Tuesday afternoon to further confirm the MoD’s position. Great progress has been made, but that does not in any way diminish the sense of horror when we read of allegations such as those which have surfaced.

[Baroness Smith of Newnham (LD)]

My Lords, the Atherton report suggested that 62% of women in the Armed Forces who replied had experienced bullying, sexual harassment, sexual assault, rape or some form of harassment or discrimination during their military careers. It is good to hear that the MoD has responded to many of the recommendations of the Atherton report, and the Minister’s response in the House of Commons to Tobias Ellwood on the Question about the Navy does say that this is an historic allegation. Could the Minister reassure the House, and any women currently serving in the Armed Forces, that they are not at risk of rape or other serious crimes—because the legacy is not good?

[Baroness Goldie (Con)]

The noble Baroness makes a very important point. I think it is important to remember that nearly 90% of the respondents to the committee would recommend the Armed Forces to other women. I found that reassuring, but that is no reason for complacency on the part of the MoD. I can say to the noble Baroness that over the past year, since we responded to the Select Committee report, enormous changes have been introduced: we have zero-tolerance policies on sexual offending—people will be discharged if they are convicted; we have a zero-tolerance policy on behaviour below the criminal threshold—if they are found guilty of unacceptable sexual behaviour, there is a presumption of discharge; we have also dealt with the issue of instructors and trainees—any sexual abuse in that relationship leads to mandatory discharge; we have also vastly improved the service complaints system.

While it is discomforting for the MoD to see these negative reports appearing, it does mean—and I have first-hand information about this—that women with increased confidence in the complaints system are now reporting behaviour. I welcome that. It may not be pleasant for the MoD to hear about these things, but I would much rather that women had the confidence to bring these incidents out into the open, so we can address them.

Ukraine

Baroness Smith of Newnham Excerpts

Thursday 20th October 2022 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, as so often on these occasions, I rise in many ways to endorse all the questions and comments of the noble Lord, Lord Coaker, and to echo the support for His Majesty’s Government’s commitment to Ukraine. It is very welcome that the Secretary of State for Defence, reiterated by the Minister, noted the commitment to continue to support the Ukrainian people, which is absolutely right. They are defending their homeland against an illegal invasion, and it is absolutely right that we should continue to support them.

In light of that—in many ways, I might sound a bit like an echo of the Labour Front Bench—what assessment have the Government made of the relationship with Iran? That is a slightly different question, but if the kamikaze drones are coming from Iran, and there is a fairly strong sense that they are, have the Government made any further assessment of how dependent Russia is or might be on Iranian weapons? There is surely a danger of escalation into a wider region. Given that the United Kingdom, along with many of our allies, has supported the reintroduction of the JCPOA, where are we in negotiations with Iran, and is that an area where the Government could hold to account the Government of Iran?

Turning to the question of escalation over the Black Sea, to what extent are His Majesty’s Government satisfied that the incident with the Russian fighter jet was a one-off? Was it just an accident? Is there not a danger of escalation if we now feel that we need to send our unmanned flights with armed support? To what extent is there a danger of unintended consequences as the United Kingdom responds to unintentional attacks—if we are being generous in our analysis of what Russia may or may not have done?

Beyond that, it is very welcome that we are continuing to train Ukrainian soldiers. The numbers we are training sound very positive, and similarly, sending cold-weather kit is highly desirable. What other activities are His Majesty’s Government undertaking to support Ukraine in a non-military sense? As the noble Lord, Lord Coaker, pointed out, Russia has been attacking critical infrastructure, particularly energy sources. To what extent is the United Kingdom seeking to support Ukraine to make sure it can keep the lights on? On the diplomatic approach, to what extent is His Majesty’s Government having conversations with China, perhaps in margins of the United Nations and elsewhere? Whatever our difficulties with China might be on some issues, it is perhaps best placed to persuade Putin that further perpetration of this illegal war is not in Russia’s interests, and that deconflicting the situation is possibly best promoted by China. Are the Government discussing this informally, behind the scenes?

Finally, obviously, I have to ask about defence expenditure. Liz Truss committed to 3% by 2030. The Chancellor of the Exchequer—the Jeremy Hunt version—did not rule that in. Does the Minister believe that there is a firm commitment to 3% of GDP for defence? Will she and the Secretary of State please fight to ensure that we keep our defence expenditure where it needs to be to keep this country secure and to support all our commitments to NATO and other allies?

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[Baroness Goldie (Con)]

I thank the noble Lord for his questions. In relation to what has been supplied and how we pay when we come to replenish it, the MoD has proceeded on the basis that it will be paid for by the Treasury. That has been a negotiated position and it is one I would expect to be obtempered and to continue.

On Ukraine’s infrastructure, I indicated to the noble Baroness, Lady Smith, some of what the UK was trying to do. As I observed earlier this week, the EU has shown commendable willingness to group together to support the endeavour, discussing with friends and allies how we best make an impact on supporting Ukraine. I reassure the noble Lord that the UK is working closely with the EU on providing Ukraine with military equipment, cyber resilience and humanitarian and economic support—not least with sanctions, energy resilience and countering Russian disinformation. There is work going on. It is perhaps a broader issue than for the MoD, and I am sure it is one that my noble friend Lord Ahmad would be very pleased to take up with the noble Lord.

[Baroness Smith of Newnham (LD)]

If there are no other Back-Bench speakers, I would like to ask a question on behalf of my noble friend Lord Campbell, who is absent from the Chamber. I think he perhaps misunderstood the timing of a Statement repeat rather than an Urgent Question repeat. I believe he was going to ask the Minister whether it would be possible to answer a question that both he and I have raised on a couple of occasions recently about the ability of the United Kingdom to continue to supply weapons to Ukraine and about the supply-chain issues. Clearly, it is something on which reassurance would be important.

[Baroness Goldie (Con)]

I find it difficult to see in the noble Baroness, Lady Smith, the demeanour of the noble Lord, Lord Campbell of Pittenweem, but as a proxy she is very capable. I know that the noble Lord, Lord Campbell, is concerned and there is legitimate interest in how we replenish, how we fund and how we keep supplying. I can say that we continually manage and analyse our stock of weapons and munitions, so when the Secretary of State makes an announcement, it has been carefully considered before it is made public. We make these decisions against commitments and threats, because we have our own national security to think of.

We also have to review industrial capacity and supply chains, both domestically and internationally, so that informs not just the numbers of munitions we have granted in kind to the armed forces of Ukraine but the avenues of supply. I can say that industry has been extremely supportive in all of this, and, of course, the noble Baroness will understand that the UK does not work in isolation. We of course have discussions with our partners and allies and then we have discussions with the industry suppliers because it is quite a complicated jigsaw, as the noble Baroness will know. It is a complicated jigsaw because there are a lot of pieces that we keep having to make sure are fitting together. I want to put on record that industry has been very supportive. We work bilaterally with industry, but we also work closely with our international partners, as we are trying to make a coherent presentation and to avoid duplicating what one another is trying to do.

Ukraine: NATO

Baroness Smith of Newnham Excerpts

Tuesday 18th October 2022 Lords Chamber

[Baroness Goldie (Con)]

As the noble and learned Lord is aware, the United Kingdom is sympathetic to Ukraine’s desire to join NATO. We are supportive of that aspiration, in line with the 2008 Bucharest summit declaration. However, at the end of the day, any decision on membership is for NATO allies and for aspirant countries to take.

[Baroness Smith of Newnham (LD)]

The right reverend Prelate mentioned the drone attacks yesterday. What assessment have the Government made of the impact on Ukraine of the loss of power—about 30% of power has been lost—and is the West able to support Ukraine to keep the lights on?

Armed Forces (Covenant) Regulations 2022

Baroness Smith of Newnham Excerpts

Tuesday 18th October 2022 Grand Committee

[Lord Craig of Radley (CB)]

My Lords, this is a very detailed piece of work, all 73 pages of it, and I commend the efforts and industry of all those involved in preparing it for publication. But this covenant concept had its origins as far back as 2000, and even before; it was very much championed in the mid-noughties by the noble Lord, Lord Dannatt, when he was Chief of the General Staff.

In 2007, the Government recognised that all three services should be considered. They produced a Command Paper, CM 7424, dated 1 July 2008, The Nation’s Commitment: Cross-Government Support to our Armed Forces, their Families and Veterans. It opened with an enthusiastic message of intentions and promises, signed by the then Prime Minister Gordon Brown. However, in spite of the Command Paper’s promising title, his Government stopped short of legislation and sought to encourage local authorities, service charities and private businesses to participate voluntarily. It took the incoming coalition Government, while encouraging the voluntary approach, to introduce a statutory mention when updating the Armed Forces Act 2006.

As someone who has tabled or supported amendments about the covenant in the relevant 2011 Act, and in subsequent quinquennial updates of the 2006 Act, I have become somewhat involved with pushing the covenant’s progress and development through statute. But one needs a surgeon’s magnifying spectacles to discern the glacial progress, over a quarter of a century, to get even as far as today’s incomplete commitment. In 2011, all that the Government proposed was a minimalist inclusion in statute. It was to add a single-line clause requiring just an annual report to Parliament under a heading “Miscellaneous” in an identically named “Miscellaneous Part”, near the back end of that 350-page Act and immediately following Section 359. That section pardoned World War I servicemen executed then for disciplinary offences, recognising these deceased veterans as victims.

As a result of my objections, and following negotiations with Ministers in the Summer Recess, a new Part 16A headed “Armed Forces covenant report” was created. This gave the covenant the greater visibility it deserves in legislation. However, the Government then resisted my suggestion at the time that the central heading should be “Armed Forces covenant” and not “Armed Forces covenant report”. I was quietly amused to note that the Government introduced that semantic change in their amendments last year.

I was also pleased to see reference in paragraph 14 of the Explanatory Memorandum to my specific amendment which ping-ponged last December, leading to the Government’s undertaking to complete a report on the operation of the covenant duty next year. In particular, it will consider whether central government and any of its functions could usefully be added. The noble Baroness will need no reminding of the importance that I attach to this aspect of the review.

I was also struck that in paragraphs 1.31 and 1.41 of the statutory guidance, in section 1J and headed “the Armed Forces community”, “veteran”, when applied to former members of the Armed Forces, meant that they were in scope of the duty only if they are ordinarily resident in the UK. I accept, as a consequence of those authorities listed to exercise this duty all being those which have no overseas function, that that is true. But at all costs it must not be turned on its head and misconstrued as suggesting that classification as a veteran depends on being ordinarily resident in the UK.

Looking to the future, if central government were to have this duty, as I hope, a veteran and former member of His Majesty’s Armed Forces who has chosen to live abroad must lie within central government scope. Attempts to define veterans by location are wrong and would be better avoided. Even the definition used in the guidance is unfortunate if it causes confusion or upset to veterans, wherever they live. There is a duty of care to those who have served in the Armed Forces and retired—in agreed language, veterans. They must never be geographically shut out of the approved scope of that duty, to which they become entitled by statute; I hope that the Minister agrees. However, I support the SI.

[Baroness Smith of Newnham (LD)]

My Lords, it is a pleasure to rise after the noble and gallant Lord, who brings a wealth of expertise to this afternoon’s debate on this statutory instrument. Like him, I am pleased to see the guidance and to have this opportunity to discuss the instrument. Also like him, I note that there are still some gaps in the legislation.

As I read through this statutory instrument, my mind turned back in particular to the 2021 Act and the fact that, at various points during its passage, many of the noble Lords and noble and gallant Lords who rose to speak asked about the role of central government. Although we acknowledge the importance of imposing duties on local authorities, I believe there is still a question about what duty we put on central government. At the moment, the legislation talks only about consultations with the devolved Administrations and certain departments: the Department for Education, the Department of Health and Social Care and the Department for Levelling Up, Housing and Communities. Obviously, that speaks to the three core aspects of the duties—education, healthcare and housing—but what thought have the Government paid to whether those duties should be widened to central government more generally? I ask this precisely because, as the noble and gallant Lord, Lord Craig of Radley, pointed out, to the extent that the duties and benefits of the Armed Forces covenant relate to veterans, they should not be determined by their geographical location. It is wholly wrong to give somebody rights only if they are resident in the United Kingdom. If they are veterans who have served with His Majesty’s Armed Forces, they should be within scope.

Beyond that, I have a couple of specific questions associated with this statutory instrument. It is absolutely right that the Government are taking a broad view of what it means to be part of a family, going beyond the traditional view of a spouse and children of a traditional marriage. There are now many other types of family that would be affected, so that view is clearly right, but can the Minister explain a little more about how the Government would interpret, and how service providers should be expected to interpret, Regulation 3(3), which states:

“For the purposes of this regulation, references to A’s spouse or civil partner includes … a person whose relationship with A is akin to a relationship between spouses or civil partners”?


At one level, that might seem self-evident. However, if we are looking at local authorities being requested to find housing, how established does the relationship have to be? How will it be evaluated and what guidance will be given to local authorities when looking at housing provision, for example?

Similarly, with a wide understanding of children, stepchildren and other relatives, we could see quite wide sets of family relations. To what extent will that be considered in looking at housing, for example? If stepchildren arrive every other weekend, should they be taken into consideration when looking at local housing provision? Similarly, how extensive a group of family members might be considered for education and school waiting lists? What are the implications of that?

Regulation 3(3)(b) talks about

“a former spouse or civil partner or a person whose relationship with A was formerly akin to a relationship between spouses or civil partners.”

Again, how will that be evaluated? It might seem quite clear cut if somebody was part of an established relationship for 20 years, but how will a former partner who has been divorced, remarried and has not suffered as being part of the Armed Forces family in quite the same way be evaluated when people say, “We think we should be covered under the Armed Forces covenant”?

None of this is intended to sound churlish in any way; it is to probe the Government about how service providers are meant to interpret this. It is right that we should be generous and expansive in the way that we interpret the family, but it is also important that there are no ambiguities in the proposals put forward.

Finally, I could not see anything in the points on healthcare about dentistry. Maybe I missed it, but one of the big issues at the moment is the difficulty of people finding NHS dentists. If that is true for stable members of the population who do not move very much, how much truer will it be of the Armed Forces and their families? Is dentistry included, and if not, could it be?

[Lord Jones (Lab)]

My Lords, I thank the Minister for her usual informative and fluent explanation, and for the detail of the department’s Explanatory Memorandum. It is always a privilege to speak in any debate graced by the noble and gallant Lord, Lord Craig. One learned from the historical viewpoint of the emergence of the covenant. I will be brief.

Paragraph 7.4 of the Explanatory Memorandum says that the duty aims

“to address the disparity of awareness of the Covenant”.

Paragraph 7.5 talks about “former service members” and a “broad approach”, and says that

“those outside the ‘traditional’ family may well be impacted by Service life.”

Those are important statements and it is good that they are highlighted in the papers before us.

The tradition of Armed Forces Day helps to address the challenge around the covenant. I do not think we can praise Armed Forces Day too highly. It is good that it has re-emerged after Covid.

The covenant helps evoke patriotism. Professor Helen Thompson, a left-leaning professor at Cambridge, recently said in the New Statesman that Britishness is still best defined as monarchy and the military. That is not for debate now, but if one is considering patriotism, the covenant and Armed Forces Day, that is a relevant foundational statement to make.

Further, paragraph 10.2 of the Explanatory Memorandum refers to local government associations. One local government unit, Flintshire County Council in north-east Wales, has a very fine record of helping those who were in the Armed Forces. Armed Forces Day in Flintshire is always heavily subscribed by the local government. The current Armed Forces champion is county councillor David Evans OBE. He is worthy of a mention, as was his predecessor, Andrew Dunbobbin, who is now the police and crime commissioner for north Wales. The county of Flintshire has a very fine record.

Armed Forces (Service Court Rules) (Amendment) (No. 2) Rules 2022

Baroness Smith of Newnham Excerpts

Tuesday 18th October 2022 Grand Committee

[Baroness Smith of Newnham (LD)]

My Lords, like the noble and gallant Lord, Lord Craig of Radley, on reading the overriding objective as outlined in the statutory instrument, my sense was that it appears in some ways to be motherhood and apple pie. It would seem self-evident that an overriding objective should be that cases should be dealt with justly. How else should we expect the law to be administered? However, the important thing is that the intention is to bring courts martial in alignment as closely as possible with civilian courts, and that is welcome. His honour Shaun Lyons recommended that and that the Government are finally bringing that within the scope of service justice seems entirely appropriate. Similarly, the point about female representation, following from the Atherton report, is welcome, and the Minister’s explanation of why it goes beyond simply sexual crimes and the like is wholly appropriate.

Therefore, in the absence of my noble friend Lord Thomas of Gresford, I am not sure there will be any specific questions from the Liberal Democrat Benches. I realise I should have brought in reinforcements because Liberal Democrats feel that service justice is always best dealt with by my noble friend Lord Thomas of Gresford.

[Lord Jones (Lab)]

My Lords, I presume that prior to the very welcome rules female board members were never present. Was that the case? I am looking at Rule 3A(1). How often do these boards sit? One presumes it is as events dictate, but how many are there in the average year? What number are we dealing with? This issue is central to the rules and some numbers might help. Finally, can the Minister furnish an example of gender representation—a woman/she/they—on a given present board? Is an example available?