Offensive Weapons Bill

Debate between Earl Howe and Earl Attlee

Report: 2nd sitting (Hansard): House of Lords
Monday 4th March 2019 Lords Chamber

[Earl Attlee]

My Lords, I am sorry to disappoint my noble friend, especially in light of my success with the amendments that I will be moving formally a little later. I am afraid that these MARS and lever-action rifles are self-loading. The mechanism inside them works in exactly the same way as the automatic rifles that I used in Her Majesty’s service. I do not support these. I thought that we had banned them post Hungerford. At the time of Hungerford, I was surprised that you could privately own a self-loading rifle—a 7.62 military-specification rifle.

Going back to the point by the noble Lord, Lord Robertson, I did not realise that, post Dunblane, there was a so-called sporting discipline of combat shooting. Noble Lords will recall the noble Lord, Lord Howard, talking about those who don the trappings of combat. I was unhappy that people could do combat shooting—in other words, changing fire positions and, most importantly, changing magazines. That is the edge that the security forces have over a private person: they train to make sure that they do not pull the trigger and find that they have an empty magazine.

So I am afraid that I do not support retaining the civilian ownership of MARS or lever-action rifles. They are self-loading rifles, and I thought we had banned them a long time ago.

[Earl Howe]

My Lords, although this amendment refers to Clause 34, I have assumed for the purposes of my reply to my noble friend that he would like to apply the additional wording to Clause 33 as well, for consistency.

These clauses will prohibit civilian access to certain types of rapid-firing rifles, defined as,

“any rifle with a chamber from which empty cartridge cases are extracted using … energy from propellant gas, or … energy imparted to a spring or other energy storage device by propellant gas”.

As has been made clear during previous stages of this Bill, the Government are concerned about the potential risk to public safety if these rifles were to fall into the hands of terrorists or criminals. At present, these rifles are available to target shooters who have obtained a firearms certificate from the police, for which they have been vetted. However, the police and National Crime Agency are concerned about the rate of fire of these rifles and consider that stricter controls are needed.

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[Earl Howe]

We received only a very few representations about these weapons as opposed to those covered by my noble friend Lord Attlee’s amendments, where there was a distinct division of opinion about what we should do.

[Earl Attlee]

My Lords, is another possibility for disabled shooters to use .22 self-loading rifles, which are still available?

[Earl Howe]

I am grateful to my noble friend. I am sure that that point will be taken on board by the clubs concerned and those who assist disabled shooters.

I do not think we can escape the fact that, were they to get hold of them, criminals or terrorists could cause more harm with this type of rifle than they ever could with a conventional one—acknowledging, of course, that all firearms are lethal and should be controlled. The Government are already satisfied, for the reasons that I have given, that these rapid-firing rifles meet the criteria that the amendment seeks to impose. For that reason, we think the additional wording is not required. I hope that on that basis my noble friend will feel able to withdraw his amendment.

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[Earl Attlee]

My Lords, while I support my noble friend’s amendment, which I am sure is a good idea, I return to the issue of the old Firearms Consultative Committee, which fell into disuse. If that was still in operation, we would not have had the MARS lever action release problem and we would have saved £15 million in compensation, because I am sure that that committee would have nipped its development in the bud and saved an awful lot of money.

[Earl Howe]

My Lords, I am grateful to my noble friend for raising this issue and for the opportunity to discuss it with him at a meeting last week. As he explained, his amendment would place a duty on the Secretary of State to open a public consultation on statutory firearms licensing guidance within three months of Royal Assent.

The Policing and Crime Act 2017 introduced a power, contained in Section 55A of the Firearms Act 1968, for the Secretary of State to issue statutory guidance to chief officers that will apply to issues such as background checks, medical suitability, and other criteria to protect public safety. This will help ensure high standards and consistency of approach for police firearms licensing. We have said that there will be a public consultation on the draft guidance before it is promulgated.

My noble friend has indicated that he is particularly interested in the medical aspects of the guidance, for understandable reasons. He and other noble Lords wish to see the consultation launched as soon as possible, as a further step towards improving the operation of the medical arrangements. There is a need for strong information-sharing arrangements between GPs and police, to ensure that those in possession of a firearm or shotgun certificate are medically fit and do not pose a risk to themselves or others. But the Government recognise that there is variation in how GPs are responding to police requests for information, and in the fees being charged to applicants, and that following this, the police are not always responding in a consistent way if they do not receive the medical information they require. In addition to holding a public consultation on the introduction of the statutory guidance, the Government will continue to engage with shooting representatives, the police and the medical profession to ensure that the system operates as effectively as possible.

Offensive Weapons Bill

Debate between Earl Howe and Earl Attlee

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 6th February 2019 Grand Committee

[Lord Kennedy of Southwark]

In my contribution, I made a point about the Government taking out amendments then putting them back in. Like the noble Baroness, Lady Williams, at Second Reading, the Minister referred to consultation. Today, the Minister told us that the Government remain very concerned about these weapons and their power. I worry that we will have the same problem as with the rogue landlords database. We wanted to make the database public through the Housing and Planning Act. We won the votes in the Lords, but they were overturned in the Commons. A year later, the Government changed their mind. Now, of course, the noble Lord, Lord Bourne, is saying, “The Government want to make the database available. We need primary legislation but we cannot find anything to tag it on to”. I worry that the Government will decide in the end that they want to ban these weapons but will say that they cannot find the legislation. Will the Government consider a precautionary power so that if they decide to, they could do that very quickly through secondary legislation?

[Earl Attlee]

My Lords, the noble Lord, Lord Kennedy, could achieve his objective by supporting my amendment, or at least the concept behind it, slightly more strongly.

[Earl Howe]

It was in an endeavour to address the general concern put forward by the noble Lord, Lord Kennedy, that I undertook for the Government to consider seriously my noble friend Lord Attlee’s amendment and my noble friend Lord Lucas’s arguments. However, I take his point. I am sure that it will not be lost on Home Office Ministers or officials. Of course, we will give that further consideration.

Army: Divisional Manoeuvre and Deployment Training

Debate between Earl Howe and Earl Attlee

Tuesday 8th January 2019 Lords Chamber

[Earl Attlee]

To ask Her Majesty’s Government when they propose to deploy a largely fully formed and supported division into the field for divisional movement and manoeuvre training.

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

My Lords, the Army has a substantial and sophisticated exercise programme in place to ensure that it is trained and ready to operate at the divisional level. This includes training with allies and partners. There are currently no plans to deploy an Army division into the field for training.

[Earl Attlee (Con)]

My Lords, I thank my noble friend the Minister for that reply. In the face of a resurgent and irresponsible peer opponent, rather than massively increase military capability and defence expenditure, would it not be far more cost effective to test, demonstrate and perfect our supposed ability to deploy at divisional strength against a peer opponent?

[Earl Howe]

My noble friend makes a very good point. The issue to stress in this context is that if we were to fight at divisional scale, we would likely be doing so as part of a multinational force, probably NATO. The Army therefore regularly exercises with allies and partners, and a good example of that was Exercise Trident Juncture held last November, which involved some 50,000 personnel from 31 allies and partners. That was a really good opportunity to test every element of our war-fighting capability on land.

Counter-Terrorism and Border Security Bill

Debate between Earl Howe and Earl Attlee

Report: 1st sitting: House of Lords
Monday 3rd December 2018 Lords Chamber

[Baroness Hamwee]

The last words of line 40 read,

“in which at the time”

and the next line starts, “of the person’s action”. As I said, I identified two places in line 40 where paragraph (a) might be inserted. It is a drafting point but also a point of substance, because where paragraph (a) starts actually affects the whole of the point. Can the Minister give a little more assistance?

[Earl Attlee]

My Lords, perhaps if my noble friend the Minister is not absolutely certain on this point we could return to it at Third Reading to clarify the drafting amendment.

[Earl Howe]

My Lords, I was not as precise as I should have been. The words after,

“(but are not limited to) those in which”,

will become paragraph (a). So it will read,

“(but are not limited to) those in which (a) at the time of the person’s action or possession, the person did not know”,

et cetera. Paragraph (b) will follow after line 44. I hope that that clarifies the point.

My noble friend Lord Lothian asked a series of very reasonable questions about the meaning of the words “journalist” and “academic”. The distinction between journalism that constitutes a reasonable excuse and that which does not, for the purpose of this offence, will inevitably be highly fact-specific. As several noble Lords commented in earlier debates on the Bill, it is just not possible to provide in advance an exhaustive definition of a journalist or of a legitimate journalist. This is something that we are clear needs to be determined by a jury in particular cases on the basis of all the evidence. We have made it clear that our amendment adds an indicative list of categories of reasonable excuse and does not provide either an exhaustive list or an absolute exemption. It is important to remember that juries will retain their existing discretion to decide whether a particular excuse is reasonable on a case-by-case basis. The same logic would apply to the meaning of the word “academic”. The category of person that my noble friend described might or might not be considered by a jury to be an academic: it would depend on the facts of the case. The jury might consider that there was still a reasonable excuse for a particular individual. I hope that that is helpful.

Counter-Terrorism and Border Security Bill

Debate between Earl Howe and Earl Attlee

Committee: 1st sitting (Hansard - continued): House of Lords
Monday 29th October 2018 Lords Chamber

[Earl Howe]

My Lords, as the noble and learned Lord, Lord Judge, has raised this, I cannot ignore what he has said. If he will allow, after this Committee stage, I will take advice and be in touch with him.

[Earl Attlee (Con)]

My Lords, did not my noble friend the Minister state that other similar offences were drafted in the same way?

[Earl Howe]

My Lords, my noble friend is quite right. “Prove” is used in some six other sections of the 2000 Act, including Sections 57, 58 and 58A, so it is not inconsistent with the generality. However, as the noble and learned Lord has picked this out, I can do no other than to take the point very seriously, and I undertake to do so. If he will suspend his scepticism for a moment, I want to make the point that, in addition to creating an inconsistency between the designated area offence and others with a similar reasonable excuse defence, this would also unsettle a well-established legal position with which the courts and prosecutors are very familiar, and on which there is clear case law.

I very much hope that, on this basis, the noble Lord will be content to withdraw his amendment, subject to the undertaking that I have just given.

Armed Forces (Terms of Service) (Amendments Relating to Flexible Working) Regulations 2018

Debate between Earl Howe and Earl Attlee

Wednesday 10th October 2018 Lords Chamber

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

My Lords, the instrument that we are considering today will make consequential changes to the terms of service regulations for regular personnel in the Royal Navy, Royal Marines, Army and Royal Air Force. The changes are necessary to enable defence to operate and manage part-time service and restricted separation service, described collectively as “flexible service”, from 1 April 2019.

As noble Lords will recall, in February this year, the Armed Forces (Flexible Working) Act 2018 became law. In the informative and productive debates that we held in the lead-up to Royal Assent, it became clear that there was a genuine desire to understand how flexible service will operate legally, fairly and efficiently for our people and their families, who will benefit from these new opportunities, and for the chain of command, who will manage them while continuing to deliver operational capability. Indeed, I recall that when we were debating the flexible working Bill some noble Lords used the phrase “the devil will be in the detail”. The Government have acknowledged the desire to scrutinise the fine detail that will enable flexible service to operate. Accordingly, today we are introducing an important piece of secondary legislation that provides that detail.

We have worked with the Armed Forces to ensure that while the changes introduced by the instrument will usher in new, modern opportunities for our people, they are at the same time balanced with the need to protect the Armed Forces’ ability to deliver operational capability. This, we are clear, must be our red line. I hope this and the debate that follows will assure noble Lords that the MoD has appropriately balanced the overriding need to maintain the operational capability of our Armed Forces with the need to support those who deliver it, and their families, with opportunities to take flexible service.

I draw the House’s attention to some of the main content of the instrument. It enables regular service personnel to serve on a part-time basis. It also enables them to restrict the number of days for which they can be required to serve away from their home base—up to 35 days in any 12-month period. The instrument sets out the overall time limits for periods of flexible service and the flexible service application process, which has been designed to be fair and efficient. It enables service personnel to apply voluntarily for flexible service and empowers the service to consider applications. However, it does not guarantee that an application will always be successful. In addition, the instrument outlines the actions required by each party during the application process. Importantly, the process is designed to ensure that service personnel cannot have flexible service terms imposed on them.

There may be occasions when, a flexible service arrangement having been agreed, circumstances require changes to be made to the arrangement, either permanently or for a specific period. We have therefore set out the conditions under which a flexible service arrangement may be varied, suspended or terminated. In the interests of national security, we conclude that in extremis it is essential for the services to be able to recall personnel back to their full-time duties immediately, either as a permanent termination of the flexible service arrangement or a temporary suspension of it. However, this will only be used sparingly, and only where a 90 days’ notice period would have an unacceptable impact. Individuals will also be able to terminate their arrangement with 90 days’ notice, or to apply to suspend or vary it.

We want to give service personnel as much certainty as possible over any flexible service arrangement that they enter into. Otherwise they will not apply, if they feel an arrangement is likely to be cancelled without warning or explanation. However, we are very clear that this must be balanced with service need above all else. We recognise that service personnel may not always get the outcome they had hoped for when applying for flexible service; therefore, we judge it right and fair that we make provision for an appeals process in the instrument. However, the scope of any appeal will be limited to requesting that the appeals authority reconsider the decision that the serviceperson is unhappy with. Service personnel will be limited to one appeal against a decision. Outside of this process they will retain their normal access to the Service Complaints system.

As noble Lords will note, the working detail beneath the main headlines that I have outlined ensures that we achieve our main policy aim effectively and fairly—that is, to give our people access to new, modern, flexible service opportunities, but at the same time recognising that maintaining operational effectiveness is paramount.

My Lords, the House’s approval of this legislation will be a key step in the journey towards the introduction of flexible service on 1 April 2019. As well as the primary purpose of making changes to the Armed Forces terms of service regulations, it will also enable the finalisation of some other important related activities. These include, first, the amendment of subordinate Armed Forces regulations; secondly, the publication of a suite of policy guidance material for those who may consider applying for flexible service and those who will administer it; and thirdly, our ongoing comprehensive communications campaign, which will promote and explain flexible service but also manage expectations and not over-sell it.

All this activity, together with other consequential changes to Armed Forces pension scheme and compensation scheme legislation, and the changes we need to make to our IT systems to enable flexible service to operate, are firmly on track for delivery in time for launch on 1 April 2019.

To conclude, noble Lords have already demonstrated their overwhelming support for the concept of flexible service. Today we can crystallise that support by approving the detail that will make flexible service a welcome reality for our Armed Forces, who continue to serve us with distinction around the world, often in challenging circumstances. I beg to move.

[Earl Attlee (Con)]

My Lords, with his usual skill and clarity my noble friend the Minister has made more or less the same points that were made when we debated this matter during consideration of the primary legislation. I am entirely happy with his Motion. What I do not understand is why noble Lords opposite, and your Lordships’ Delegated Powers and Regulatory Reform Committee, sought the affirmative procedure for this very minor matter. Noble Lords should be aware that Ministers have the power to make much more significant changes to the terms and conditions of service than these very minor flexibilities. I hope the Opposition Front Bench have some substantive points or questions that are relevant to the regulations.

Defence Modernisation Programme

Debate between Earl Howe and Earl Attlee

Monday 29th January 2018 Lords Chamber

[Earl Attlee (Con)]

My Lords, in my short 25 years in Parliament, the best defence review I have seen was the SDSR 1998 of the noble Lord, Lord Robertson. But it was ruined by the Treasury’s 3% year-on-year cost saving, because you can never get such cost savings. Why do we keep including efficiency savings in the defence budget, because you can never get those efficiency savings, nor even the money to pump prime them?

[Earl Howe]

I do not share my noble friend’s scepticism about the efficiency programme. In fact, we already forecast a line of sight to 90% of our formal target of £7.4 billion, as set by the Treasury. I emphasise that these savings will not adversely affect defence outputs. I am talking about things such as transforming the way we procure equipment. We can get a lot better at that. The single-source contract regulations have saved us hundreds of millions of pounds already. We will be saving money by reviewing the military allowances. That programme is in addition to the multiple efficiency drives over recent years, such as improving our equipment support contracts, working more closely with industry partners to drive efficiency in, for example, the submarine programme, changing the way we procure complex weapons and, not least, a reduction in the size of our civilian workforce. Throughout those efficiency drives, we have maintained a world-class military, and that is what we will continue to do.

Armed Forces: Inquiries

Debate between Earl Howe and Earl Attlee

Wednesday 25th October 2017 Lords Chamber

[Earl Howe]

My Lords, the multitude of investigations that took place following UK operations in Iraq only arose following a definitive ruling by the court that the ECHR applies even overseas, by which time operations in Iraq had concluded. No one, least of all the Government, desires to see repeated inquiries; that is in no sense a desirable state of affairs. My original Answer shows, I hope, that we wish to minimise this as far as possible but, at the same time, the Government have a duty to obey the ruling of the courts and to ensure that criminal allegations against the Armed Forces are investigated properly.

[Earl Attlee (Con)]

My Lords, is the Minister aware that I find it very difficult to advise a young person to consider a career in the Regular Armed Forces, because it appears that neither the chain of command nor Ministers can protect a serviceman from these types of allegations?

[Earl Howe]

My Lords, I am very sorry to hear my noble friend’s view on that matter. As I have said, it is an issue of great regret that service personnel and veterans have been subject to repeated inquiries. As my original Answer showed, if UK troops are deployed on overseas operations in the future, we will ensure that the Armed Forces are resourced properly to investigate any allegations at that time, rather than be subject to a slew of retrospective allegations, which frankly have been very difficult to get to the bottom of.

Register of Hereditary Peers

Debate between Earl Howe and Earl Attlee

Monday 9th January 2017 Lords Chamber

[Earl Howe]

My Lords, as the Government’s manifesto made clear, we believe that the size of the House should be addressed, and that is the issue primarily being addressed by the committee set up by the Lord Speaker. However, we also made it clear that with so many pressing legislative priorities, not least those stemming from the result of the UK referendum, comprehensive reform is not a priority during this Parliament. We do not wish to close to our minds to that idea. A good case can be made for comprehensive reform, and it is worth remembering that in the last Parliament the Government put forward a Bill that would have made 80% of the eligible membership elected.

[Earl Attlee (Con)]

My Lords, surely one of the most pressing problems is the fact that we are so horribly Londoncentric.

[Earl Howe]

My noble friend raises an issue which I believe has often been addressed in the past, but again it is not beyond the scope of the committee that has been established by the Lord Speaker. However, it is difficult to address that issue satisfactorily if one is going to be fair across the whole country.

Armed Forces Bill

Debate between Earl Howe and Earl Attlee

Wednesday 27th April 2016 Lords Chamber

[Earl Attlee]

My Lords, I do not have any strong views on the merits of Amendments 9 and 10. However, I am extremely concerned about how long we have been engaged in very difficult operations in Afghanistan and Iraq. We were engaged in operations there for year after year; thankfully, that level of engagement has ceased. Many service people were doing multiple six-month operational tours in their career and we simply do not know what the long-term effect of that will be.

If mental illness arises in a veteran, it will be extremely difficult to be certain as to what caused it. Amendment 9 refers to it being “caused by” military service, but I am sure that in many cases the clinicians will not know what caused it, even though they will be sure that the patient is mentally ill. My great fear is that, because of the amount of operational tours that we have undertaken—with people undertaking multiple tours, as I said—we could have a much worse problem in future years than we thought we were going to have. So, looking longer term, we need to be careful about carrying out military operations that last a very long time.

[Earl Howe]

My Lords, both these amendments seek to address provision for the care and support of members of the Armed Forces who suffer from mental health conditions caused by service. The health of our Armed Forces community is hugely important to us all and I welcome the opportunity to set out the Government’s position again.

Turning first to Amendment 9, as I said in Committee, the Armed Forces compensation scheme—AFCS—already makes awards for injuries and disorders predominantly caused by service, including mental health conditions. The scheme is tariff-based and aims to make full and final awards as early as possible, so that individuals can have financial security and focus on getting on with life and living. Claims can be made while in service or when the individual has left. In cases where a disorder is not in steady state, prognosis is uncertain or treatment is ongoing or not yet begun, legislation allows an interim award to be paid at the most likely level. This award is then reviewed and usually finalised within 24 months of notification. Where, exceptionally, matters remain uncertain at review, the interim award may continue for a maximum of 48 months. If the disorder has improved and a lower tariff now applies, no recovery of benefit takes place, while if a higher tariff award now applies, the difference between the interim award and the final award is paid.

The AFCS tariff has nine tables of categories of injury relevant to military service—and they include mental health disorders. While the scheme has time limits for claiming, there is also a provision for delayed-onset conditions, including mental health diagnoses. The Ministry of Defence recognises that, owing to stigma and perceived impact on career, people may delay seeking help. The practical effect of this is that if a person who has left the Armed Forces some time ago is diagnosed with a mental health problem as a result of his or her service and makes a claim under the AFCS, a compensation award will be paid as soon as the claim is accepted. As a result of the recommendations made by the noble and gallant Lord, Lord Boyce, in his review of the AFCS, the Ministry of Defence increased the maximum lump sum award for mental illness from £48,875 to £140,000. This was to better reflect the impact of the most serious mental health conditions.

Broadly, the same mental health disorders are found in military personnel and veterans as in the general community—an exception being a lower rate of the most severe and enduring conditions such as schizophrenia.

Evidence-based effective interventions are now available for the common disorders, including PTSD. The treatments apply to both civilian and military contexts, with a high expectation of improved function, including return to work—especially if people are seen early.

In addition to the AFCS lump sum, the most serious conditions with likely limitations on civilian employability receive a tax-free guaranteed income payment—GIP. While in service, regardless of medical employability grading or being on sick leave, personnel retain their military salary. The GIP is paid for life and comes into effect on discharge from the services or from the date on which the claim is accepted. A lump sum of £140,000 attracts a GIP based on 75% of military salary, with enhancements for service length, age, rank and lost promotions.

Also as a result of the recommendations of the noble and gallant Lord, Lord Boyce, we established the Independent Medical Expert Group—the IMEG. The group—a non-departmental public body—includes senior consultants and academics and UK authorities on specialities relevant to military life, including mental health. It advises Ministers on the scientific and medical aspects of the scheme.

The noble and gallant Lord, Lord Boyce, also identified the need for further investigation into mental health. The IMEG therefore conducted a review that involved literature search and discussions with civilian and military experts and veterans’ organisations. The findings were published in its second report on 17 May 2013. The conclusions and recommendations on diagnosis, causation, assessment of disorder severity and the use of interim awards were accepted by Ministers and subsequently incorporated into the scheme.

The House will be interested to know that this year sees a further planned review of the AFCS, which began recently. The review is currently in the stakeholder engagement phase and has been approaching charities, claimants and other government departments. This quinquennial review will consider the scheme’s coverage and levels of awards, in particular for those most seriously injured, including those with mental health conditions. It is expected to report at the end of 2016.

The second amendment in this group would create a specific obligation on the Government to have particular regard, in their annual report on the covenant, to parity of esteem between mental and physical healthcare. The Government are absolutely committed to meeting the healthcare needs of the Armed Forces community. The Secretary of State has a statutory requirement to include in his annual Armed Forces covenant report to Parliament the effects of membership, or former membership, of the Armed Forces on service people in the field of healthcare under the covenant.

The healthcare we provide to our service personnel, both at home and deployed on operations, is truly world class. Last year, the principles of the covenant were enshrined in the NHS constitution for England. This gives a commitment to ensure that, as well as those serving in the Armed Forces, reservists, their families and veterans are not disadvantaged in accessing NHS health services in the area in which they reside.

Since 1953, priority access to NHS specialist services in Great Britain has been provided for service-attributable disorders, with no-fault compensation awards. In 2009, this was extended to include treatment for any disorder where a clinician recognises a causal link to service. Priority is decided by the clinician in charge, subject only to clinical need.

I should also mention further work on mental health. For mental health disorders, stigma and perceived discrimination in employment can act as barriers to access and engagement with care. This is not unique to the Armed Forces but common among men. In 2004, led by the Health and Social Care Advisory Service, the MoD, UK health departments, NHS and Combat Stress explored features of an effective veterans’ mental health service, piloting various service models in locations across the UK.

The evidence showed that while some veterans were not comfortable with clinicians who had no military experience, others were equally anxious to see only civilian health professionals. What seem to work best are multifaceted services, including healthcare, social support, benefits advice et cetera, delivered in an environment of cultural sensitivity and empathy. The pilots also confirmed that best-practice interventions work, with high rates of improved function and a return to a full life with contribution to family, community and work.

As a reflection of these findings, and of Dr Andrew Murrison’s Fighting Fit report, since 2010, a network of veterans’ mental health services has been established in England and Wales with special arrangements for veterans also established in Scotland. The Armed Forces covenant gives a commitment that veterans should be able to access mental health professionals who have an understanding of Armed Forces culture, and NHS England is currently completing an audit of veterans’ mental health services.

In service, there has also been increased focus on good mental health and well-being, with emphasis on prevention and protection through a chain of command lead. Mental health awareness is part of a through-life training strategy starting at basic training, with self-awareness and with annual refresher courses. There are then specific courses for those with leadership responsibilities. The courses cover: raising stress management; reduction of stigma; building resilience; early detection of problems in self and others; and specific pre-deployment, deployed and decompression measures. Trauma incident management teams and mental health nurses are now considered essential parts of a deployment package, and mental health first aid training to service personnel is being delivered by SSAFA in collaboration with Combat Stress, Mental Health First Aid England and the Royal British Legion.

I should add that there is no evidence of an epidemic of mental problems in military personnel—rather, levels of the common mental health problems in regulars and reservists are broadly similar to those of the matched general population, while levels of PTSD in some groups, and in relation to combat, are slightly but not markedly increased. Where service personnel become ill, help is available in primary care with, as required, referral and outpatient support from the 16 departments of community mental health across the UK. When, rarely, in-patient care is necessary, it is provided in eight dedicated psychiatric units, again located around the country.

I therefore assure noble Lords that the Government are committed to meeting the health needs of the service community. We will continue to report on the provision of healthcare in the Armed Forces Covenant Annual Report, and our work to address mental health needs will be an integral part of that report.

The principles of the covenant are to ensure that the Armed Forces community is treated fairly in comparison to the civilian population. Parity of esteem is there to ensure that all health services treat mental health with the same importance as physical health, and it applies to everyone accessing NHS services, not just the Armed Forces community. For this reason, I remain firm in the belief that it does not need to be legislated for under the covenant.

I shall write to the noble Baroness, Lady Jolly, on any of her specific questions that I have not addressed. However, given our clear commitment to support those who suffer from mental health conditions, and the tangible steps that we are taking, I hope that the noble Lord will agree to withdraw the amendment.

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[Earl Attlee]

The Minister has not spoken yet. To tease the noble Lord slightly, with the benefit of hindsight, would he advise the junior marines who were defendants in the Blackman case to take their case to the Old Bailey? I do not think they would have got on very well.

[Earl Howe]

My Lords, I welcome the opportunity to restate the Government’s position on the further changes to the service justice system that the noble Lord, Lord Thomas, proposes. His intention with Amendment 11 is to extend the jurisdiction of civilian criminal courts in England and Wales by giving them jurisdiction to try members of the Armed Forces and civilians subject to service discipline for overseas acts that, were they committed here, would constitute sexual offences under the Sexual Offences Act 2003.

I apologise to the noble Lord, Lord Thomas, because I confess I am not clear what advantage the amendments would confer on the system as a whole. Noble Lords may be aware that service courts are already able to exercise jurisdiction in respect of acts committed overseas. Section 42 of the Armed Forces Act 2006 provides that a member of the Armed Forces is guilty of an offence under service law if they commit an act outside the UK that would constitute an offence under the law of England and Wales were it done here. If it is necessary to have a further conversation with the noble Lord after Report to clarify any misunderstanding that I have, I will be happy to do that.

Amendment 12 would give members of the Armed Forces accused of committing certain crimes overseas the right to elect to be tried by a civilian criminal court in the UK instead of a court martial. The crimes in question are those that the civilian criminal courts may try even if the event in question took place overseas. Those offences include murder, and would also include sexual offences if Amendment 11 were accepted as well. I note that Amendment 12 does not appear to propose that a member of the Armed Forces should have a right to elect civilian criminal trial in a case concerning conduct in the UK, where both the civilian courts and a court martial would have jurisdiction to try the case. I confess it is not immediately apparent to me why such cases should be treated differently.

Taken together, the effect of Amendments 11 and 12 would appear to be that while a service person who committed a sexual offence overseas could choose to be tried at a Crown Court rather than a court martial, a service person who committed the same offence in the UK would have no such choice. It is not clear why the amendment makes provision for electing civilian court trial only for conduct outside the UK, not in the UK.

The noble Lord may again not be too surprised to hear that we do not support these amendments. I said in Grand Committee in response to two very similar amendments tabled by the noble Lord that making the changes proposed would appear to imply that there may be reason to doubt the ability of the court martial to deal with sexual offences. I would make the same point about Amendments 11 and 12. Yet, as I said in Grand Committee, the service justice system has been scrutinised by the UK courts and by Strasbourg and it is now well recognised that the court martial system in the UK ensures a trial that is fair and compatible with the European Convention on Human Rights, both for investigations and prosecutions in respect of acts in the UK and for investigations and prosecutions in respect of overseas acts where the civilian police may not have jurisdiction. The Government believe that the service justice system, including the service police, the Service Prosecuting Authority and service courts, is capable of dealing with the most serious of offences and should be able to continue to do so.

The amendments would significantly undermine existing arrangements designed to ensure that cases are dealt with in the most appropriate court jurisdiction. In the case of offences which both the civilian criminal courts and service courts have jurisdiction to try, it is recognised that it is necessary to consider in each case whether the offence is more appropriately tried in the civilian criminal courts or in a service court. This applies not only to those offences committed overseas in respect of which the civilian criminal courts have jurisdiction, but also to offences committed in the United Kingdom which both the civilian criminal courts and service courts have jurisdiction to try. However, a decision on appropriate jurisdiction is rightly a matter for service and civilian prosecutors rather than the accused person.

There is a protocol between service and civilian prosecutors which recognises that some cases are more appropriately dealt with in the service system and others are more appropriately dealt with in the civilian system, particularly those with civilian victims. The principles of this protocol have the approval of the Attorney-General for England and Wales, and the Ministry of Justice. The protocol recognises that any criminal offence can be dealt with by the service authorities. The main factor in decisions on whether an offence is more appropriately dealt with in the civilian criminal justice system or the service justice system is whether the offence has any civilian context, especially a civilian victim. The protocol therefore provides for cases with a civilian context to be dealt with by the civilian criminal justice system. Where a case has a service context, it is important that the service justice system, which is specifically constructed to deal with that unique service dimension, is able to deal with the case.

Creating a right to elect of the kind contained in this amendment would override the existing protocol and could seriously undermine the service justice system. Many offences which involve conduct outside the UK will have a service context such that both service and civilian prosecutors would consider that they would be more appropriately dealt with in the service system. However, the proposed right of election could mean that a person accused of such an offence could make an election that led to their case being dealt with instead by the civilian criminal courts. We do not think this would be right. This is significant because the court martial is part of an overall system of justice and discipline, and the existing statutory provisions in the Armed Forces Act 2006 governing sentencing in the court martial reflect this. They are closely based on the civilian sentencing principles but include in addition, as I mentioned earlier, the “maintenance of discipline” and the “reduction of service offences”, which reflect special aspects related to the service justice system. In my response to Amendment 2, I touched on a number of these special aspects.

Allowing a case with a purely service context to be dealt with in the civilian system on the election of an accused therefore risks undermining the system of justice and discipline in the Armed Forces which the Armed Forces Act 2006 was carefully constructed to underpin. Where the prosecutor’s protocol indicated that a case should be dealt with in the civilian system—for example, a case in which the victim is a civilian—would the accused service person be able to override that and instead elect trial by court martial? We do not think that would be right. Furthermore, a right to choose which court should hear the case would open up the possibility of any co-accused making different elections, resulting in split trials in different systems with obvious implications for the efficient administration of justice.

There is another aspect to this, which the noble and learned Lord, Lord Hope, identified in Grand Committee and which it may be helpful for me to repeat here. The amendments are concerned with conduct overseas which is likely to be criminal under the local law as well as under service law. However, the authorities in states visited by our Armed Forces are commonly prepared to allow service courts to exercise jurisdiction rather than assert their right to try a case before their own civilian courts. A good example is Germany, where there is a very active and much-respected criminal justice system, but under the arrangements we have in place the German authorities are prepared to allow our service courts to exercise jurisdiction over cases with a service context.

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[Earl Attlee]

Before the Minister sits down, he said that we have not caused any civilian casualties in Iraq. I take it that he is referring to current operations and not Operation Telic.

[Earl Howe]

My noble friend is right. I am referring to Operation Shader.

Armed Forces Bill

Debate between Earl Howe and Earl Attlee

Thursday 3rd March 2016 Grand Committee

[Earl Howe]

My Lords, I welcome the initiative of my noble friend in reminding us that the health and well-being of our Armed Forces are especially important. Pay as you dine was adopted by the Armed Forces in 2005, as the noble Lord, Lord Touhig, mentioned. It replaced the deduction of food costs taken directly from pay at source, regardless of whether meals were taken or not.

At the moment, catering is provided for under the catering, retail and leisure contracts. Our industry partners are required to provide a core meal at each meal service of the day. Food is charged at cost, and contractors do not make a profit on the food they provide. Core meals served at breakfast, lunch and dinner provide a nutritious and balanced menu cycle. Throughout the day, when taken at each meal service, core meals provide 3,300 calories per day at a daily price of £4.79. A range of alternative meal choices is also available outside the core meal price.

We believe it is important to give service personnel the choice about how and where they spend their money with regard to food. We fully recognise that sometimes service personnel like to take their meals in a different environment, to visit their local shops to choose what they want to eat and even to cook their own meal. We have no reason to believe that this has a detrimental effect on unit cohesion, although I would not seek to belittle that as an important issue.

However, we recognise that some service personnel are not good at choosing a healthy diet, whether they are living in single living accommodation or not. This is, of course, not a problem that affects just the Armed Forces—it is a reflection of wider society and there is much concern about unhealthy lifestyles generally—but we aspire to bring about change and we acknowledge the need for members of the Armed Forces to be better informed.

We are therefore working in partnership with Public Health England to produce some lifestyle guidance for service personnel. In parallel, the services are developing a new programme to educate personnel in healthy lifestyle choices, including diet and nutrition, and encourage a change in their behaviours. Dieticians, general practitioners, physical development experts and public health consultants are among those who have contributed to this work. I will write to the noble Baroness, Lady Jolly, on ration packs.

I thank my noble friend for his interest in the pay as you dine system, but I do not believe his amendment is necessary. However, there is no sense of complacency here. Various assurance activities related to the system take place, including contract monitoring, site visits, reviews, customer engagement and assurance by single-service catering subject-matter experts to evaluate and improve the service provided. I hope that, with that measure of reassurance, my noble friend will feel able to withdraw his amendment, but naturally, if he feels that there is any more information I can provide him with, I shall be happy to do so.

[Earl Attlee]

My Lords, I am grateful to all noble Lords who have contributed to this short debate. The thing that slightly worries me is that the Minister did not offer to give us any information from any reviews. He said that reviews had taken place, and presumably those review reports could be obtained under FoI, so there does not seem to be any good reason why we should not see a copy of the relevant review, just to see how it is going. Maybe the Minister would like to reflect on that to see whether there is something.

[Earl Howe]

I will gladly look at what is available. On the face of it, I see no problem in releasing the content of such reviews if they are in a form that represents fairly the quality of the system and the action to be taken to improve it.

[Earl Attlee]

I thank the Minister for that undertaking. The noble Lord, Lord Touhig, tempted me to table a suitable amendment relating to the Armed Forces covenant and the requirement to produce reports. My ration of unhelpful amendments is strictly limited, so I do not think I will be doing that. I beg leave to withdraw the amendment.

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[Earl Attlee]

My Lords, I am grateful for the Minister’s response to my amendment. I have a wicked question to ask him, following the point made by the noble Lord, Lord West, about what happens if we start taking large numbers of casualties, especially if the circumstances of each casualty are different. Suppose in 100 days of an operation we take 10 fatalities per day. We are in for 1,000 inquests, and the circumstances of each one are different. Presumably at some point as a conflict escalated from peacekeeping to warfighting and, to put it bluntly, it was not going very well, we would have to suspend the system of inquests. It would be ridiculous—God forbid we could have 5,000 outstanding inquests! We would get to a point where we would have to stop the inquest system. That proves my perverse law that the scrutiny of each casualty is inversely proportionate to the number of casualties we take.

[Earl Howe]

My noble friend is right that that is a question from left field because I do not think I can answer him substantively today. Clearly, in the circumstances that he outlines the coronial system would be overwhelmed and one would have to consider the best way of arriving at the end point that we would all wish to see, which is that for all those deaths, no matter how many, an explanation is provided to families of how those people died and what lessons were to be learned from that. I do not think I can usefully speculate in these surroundings about what might happen in particular circumstances, but I will reflect on my noble friend’s question, and if I can give him a better reply in the letter that I have undertaken to send to him, I will be happy to do so.

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[Earl Howe]

My Lords, I am grateful to my noble friend for setting out the rationale for his Amendment 18. However—without, I hope, disappointing him too much—I am not convinced it is necessary to set out in the Armed Forces Bill a statutory requirement for the Defence Council to issue guidance on when a member of the Reserve Forces is on or off duty.

We ask a great deal of our reservists, who, in many cases, attend training and fulfil military duties alongside their full-time civilian employment, as well as committing to deploy on operations when they are required to do so. It is self-evident that in return for this dedication, the MoD needs to make it clear how members of the Reserve Forces will be treated and supported when they are on mobilised service or training, or travelling to and from their reserve centre. Principally, we set this out because reserve service is not risk-free and we need to be able to give reassurance that we will support people properly if they suffer an injury or illness during service.

When is a service man or woman subject to service law? Section 367 of the Armed Forces Act 2006 sets this out:

“Every member of the regular forces is subject to service law at all times”.

The position for reservists is different. Reservists are subject to service law in the following circumstances only: when they are mobilised—called out; when they are in full-time reserve service; when they are undertaking any training or duty; and when they are serving on the permanent staff of a reserve force.

Single service regulations, which are made under the Reserve Forces Act 1996 for each of the reserve forces, already define the circumstances in which a reservist is to be regarded as on duty. As might be expected, this includes during Armed Forces training but it also includes time while they are on MoD premises for the purpose of training, or time spent travelling to and from training or duty for which they are entitled to claim payment. Travel to a mobilisation centre in answer to a call-out order is also regarded as duty. The regulations are principally intended to define the MoD’s liabilities in the event that a reservist sustains an injury at any of these times.

Of course, the actions of a reservist at a time when they are not on duty may none the less be relevant to their service; for example, reserves regulations stipulate that officers may at any time have their commission terminated, be called upon to retire, or be called upon to resign their commission because of misconduct, whether or not that misconduct took place during training or other duties. It is also fully understood by reservists who are present on service premises at times when they are not on duty—for example, those making use of unit gymnasium facilities in their own spare time—that they are to conduct themselves at such times in the same manner as they would were they on duty.

It is worth clarifying that the practice of payment of members of the Reserve Forces for training or other duties in increments of a day’s pay, half a day’s pay or a quarter of a day’s pay is not directly linked to the issue of when during that day the reservist is on duty. Thus a reservist who works an eight-hour day will receive a full day’s pay for it—the same payment as he or she would receive for working for all 24 of the hours in that day. However, that does not mean that the reservist who works an eight-hour day is on duty for all 24 of the hours in that day. It might be considered odd to suggest that they would be. It would be surprising to suggest that a reservist who left their reserve unit at 1600 on a Saturday after completing an eight-hour day and returned to their civilian life—and perhaps their civilian employment—would still be on duty until midnight.

For the reasons I have set out, and given that existing regulations already contain provision for when members of the Reserve Forces are on duty, I hope my noble friend will be reassured and will agree to withdraw his amendment.

I turn now to the amendments which would make provision with respect to members of the Armed Forces who encounter civil emergencies or terrorist attacks. Amendment 19 makes provision with respect to members of the Armed Forces who take it upon themselves as individuals to intervene to help in civil emergencies where they have received no orders to do so. I am sure this is intended to encourage them to intervene in such circumstances. In the case of members of the Reserve Forces, this would include interventions when they were not otherwise on duty. However, it would apply only to reservists who were in uniform and were either on duty, were intending to be on duty that day or had been on duty that day.

I read subsection (3) as intending to allow provision to be made to place service personnel under an obligation to intervene in certain circumstances. Subsection (4) would offer those who intervene indemnities from legal action. Amendment 20 makes similar provision with respect to intervention of members of the Armed Forces during terrorist attacks. This new clause would apply to reservists and members of the regular forces whether or not they were in uniform at the time.

The first point to make is that the criminal law provides protections for members of the public who use force for the purposes of self-defence, defence of another, defence of property, prevention of crime and lawful arrest, although the force used must be reasonable in the circumstances. Thus a member of the Armed Forces, whether in uniform or on duty or not, who intervenes during a civil emergency or a terrorist attack and uses reasonable force for any of the purposes to which I have just referred has a defence to charges under the criminal law.

However, Amendments 19 and 20 suggest that my noble friend is concerned that a person who intervenes in an emergency situation to prevent loss of life, serious injury or serious damage to property may be at risk of being sued in the civil courts. We think it highly unlikely that a person who did what they honestly believed was reasonable and necessary in the circumstances, during a civil emergency or a terrorist attack, to prevent loss of life, serious injury or serious damage to property could be successfully sued in respect of injury or damage caused by them in doing so.

It is not immediately apparent why an off-duty member of the Armed Forces who decides to intervene to help in a civil emergency or a terrorist attack should be in any different position in law from any member of the public who does so. No doubt contrary to my noble friend’s intention, the amendment might in fact make a claim in respect of the actions of a member of the Armed Forces more likely, because those actions would not simply be those of a member of the public in their private capacity but would instead be those of the Armed Forces.

Another concern that I have with these new clauses is whether, if a member of the Armed Forces intervened in a situation and was then deemed to be on duty and perhaps somehow under orders, there could be a risk that they could find themselves not supported but actually challenged by the chain of command as to the usefulness or otherwise of their intervention. While we would not want to deter off-duty members of the Armed Forces from intervening in a personal capacity in an emergency situation, we do not think that it would be appropriate for them to be duty-bound to intervene or to think that they were. Would we want an unarmed, off-duty member of the Armed Forces to think that they were duty-bound to tackle heavily armed terrorists and that they might face disciplinary action should they fail to do so?

We should also not rule out the possibility that their efforts, however well-intentioned, may not necessarily be welcomed by the police or other emergency services. It is long-established that it is only in very exceptional circumstances that members of the Armed Forces should deploy in an official capacity on the streets of the United Kingdom. The civilian emergency services rightly have primacy in such matters.

The notion that individual service personnel may deploy as members of the Armed Forces on official duty not under orders but instead, in effect, on their own say-so would also represent a very significant departure from very long-established practice, under which the use of service personnel is authorised and regulated under orders through a chain of command. I am afraid that it is a departure that the Government cannot support.

I also note that Amendment 20 would purport to allow members of the Armed Forces to use,

“all necessary steps to neutralise”,

an attack. The criminal law allows only the use of such force as is reasonable in the circumstances. This is the standard that applies not only to members of the public generally but also to the police and members of the Armed Forces who are under official orders to tackle armed terrorists. We do not see any basis for departing from this long-established standard.

In short, we do not consider that the proposed amendments are necessary to allow members of the Armed Forces to intervene in the circumstances discussed and we are not convinced that it would be appropriate to put in place the proposed legal rules regarding such intervention. I therefore ask my noble friend not to press his amendments.

[Earl Attlee]

My Lords, I am grateful to all noble Lords who contributed. The Minister gave me exactly the answer I would expect. The first part of his answer was particularly useful so I am grateful to him for that. I am a little surprised by the response of the noble Lord, Lord Tunnicliffe, because nowhere was I suggesting that there would be any special training. It was basically whether off-duty servicemen should have any top cover from the MoD. I do not see that there would be any extra costs in that. It certainly would not be a new task or mission for the MoD. I am still very grateful for the noble Lord’s response and beg leave to withdraw the amendment.

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[Earl Howe]

My Lords, the amendment proposed by my noble friend would have the effect of excluding women from those roles in the Armed Forces, where the primary aim is to,

“close with and then engage or destroy the enemy in close combat”.

As I know my noble friend agrees, women play a vital role in the Armed Forces, with 70% of all posts being open to women. Women have made and continue to make a valuable contribution to current and recent operations, including Afghanistan. They are fundamental to the operational effectiveness of the UK’s Armed Forces, bringing talent and skills across the board.

My noble friend asked whether there was a target for the percentage of the Armed Forces who should be female. The answer is: yes, the Ministry of Defence has a target for recruitment of women into the Armed Forces of 15%. As at 1 October 2015, 10.1% of the Regular Forces were female, and that has remained stable since 1 October 2014. So we have a way to go in this area.

Women already serve in a variety of support roles with front-line units, including as medics, fire support team commanders, military intelligence operators, counter-improvised explosive device operators and dog handlers. Under the Equality Act 2010, the Armed Forces are permitted to exclude women and transsexuals from employment in some areas where it is necessary and appropriate to ensure that the combat effectiveness of the Armed Forces is maintained. However, under the equal treatment directive, the UK Government are obliged to review this exclusion every eight years. To that end, studies were conducted in 2002 and 2010. Women are currently excluded from 30% of posts in the Army, 21% in the Royal Navy and 6% in the Royal Air Force. The units of the Armed Forces that are affected by this are the Royal Marines general service of the Royal Navy, the infantry and the Royal Armoured Corps of the Army, and the Royal Air Force Regiment.

In May 2014, the then Secretary of State for Defence announced a review of the exclusion of women from ground close combat roles. The review was led by the Army and it was completed that year. The review achieved a considerably better understanding of the physiological considerations than existed previously, due to significant improvements in the accuracy of data available and the fact that the military female cohort is both larger and more representative than that available to previous studies.

While defence welcomes the prospect of opening further military roles to women, the findings of the 2014 review identified that further physiological research is required into the high physical demands inherent in ground close combat roles and the associated potential impact on women’s health. To lift the exclusion without doing this research could place women at risk of personal injury. The physiological research programme is now examining the challenges and risks of including women in ground close combat roles in order to inform a final decision.

I need to make it clear to my noble friend that the women in ground close combat roles review follows the principle that all roles should be open to women unless it can be demonstrated that the exclusion was necessary to maintain combat effectiveness. Therefore, in the event that the exclusion is lifted, any woman serving in a combat role will have passed the physical tests and training to be there in her own right. I can reassure my noble friend on one important point. The requirement to maintain combat effectiveness remains the paramount consideration. Training standards will not be lowered in order to accommodate women and this, in turn, will ensure that the combat effectiveness of ground close combat units is maintained.

The Prime Minister and the Defence Secretary are united in wanting to see all roles in the Armed Forces opened up to women. In answer to the noble Baroness, Lady Jolly, I cannot be precise on dates, but the decision on whether or not women should be allowed to serve in ground close combat roles is expected by the middle of this year. I hope that this explains our position and, in view of what I have said, I hope that my noble friend will agree to withdraw this amendment.

[Earl Attlee]

My Lords, I am grateful to all noble Lords who have contributed to the debate. I am not surprised that the noble Lord, Lord Touhig, had a go at me. I went part of the way: I said that we could have women in the Royal Armoured Corps because there is no logic for why a woman should not be able to operate a tank or an armoured fighting vehicle. In fact, there is a possibility that women may be better in certain roles.

The noble Lord, Lord West, was very cruel to me because he took away one of my killer questions to the Minister, which is: if we were in general war and had to conscript people, would we be happy to conscript women into the infantry? I do not think the Minister needs to answer that because it is far too tough a question.

I would like an assurance from the Minister that he will not authorise the fitness and strength standards in the infantry to be lowered. Can we have an assurance that that will not happen? If there are one or two superhuman women who can do it, fine. But as soon as we lower those training and fitness standards, we will have reduced the combat effectiveness of the infantry.

[Earl Howe]

My Lords, I endeavour to give my noble friend that absolute assurance. We are clear that physical training standards must be maintained to ensure that combat effectiveness is not degraded or diluted.

[Earl Attlee]

My Lords, my position is that the solution outlined in my amendment is the right one. In other words, yes to women in the Royal Armoured Corps but no to the infantry and the Royal Marines. We will have to see what happens. In the mean time, I beg leave to withdraw my amendment.

Armed Forces Bill

Debate between Earl Howe and Earl Attlee

Tuesday 1st March 2016 Grand Committee

[Earl Howe]

My Lords, I am most grateful to the noble Lord for raising this issue and I understand entirely why he felt it appropriate to do so. Nevertheless, I am not convinced at the moment that it is necessary or appropriate to set out a requirement in the Armed Forces Bill for commanding officers to collect and for the Ministry of Defence to publish the kinds of data that he has referred to.

We fully recognise and value the contribution of reservists and the need to ensure that their interests are properly protected. Part of that is making sure that their reserve service does not negatively affect their employment prospects. I completely accept that principle. But that is precisely why there is protection in place to ensure that reservists are not dismissed as a result of any duties or liabilities that they have to undertake; for example, as a result of being mobilised. This protection is provided by the Reserve Forces (Safeguard of Employment) Act 1985, Section 1 of which gives a reservist who is called out for reserve service the right to apply to his or her former employer to be reinstated after they return from mobilised service. In addition, Section 17 of the 1985 Act makes it a criminal offence for an employer to dismiss an employee solely or mainly by reason of any duties or liabilities that may arise as a result of being called out.

Further, Section 48 of the Defence Reform Act 2014 amended the Employment Rights Act 1996 to remove the current two-year qualifying period for claims of unfair dismissal where the reason for dismissal is or is primarily because the individual is a reservist. However, we are not aware of any cases having been brought as a result of this change. In addition, as proposed in the Reserves in the Future Force 2020: Valuable and Valued White Paper, we have established a website that allows reservists to alert the Ministry of Defence if they believe that they have been disadvantaged in employment as a result of their reserve service. These cases are of course investigated if the complainant agrees. There have been only 13 contacts from reservists since we established the website in July 2013. Those are the facts as they currently stand.

The amendment proposed by the noble Lord seeks to place a legal duty on commanding officers to collect statistics on how many reservists have reported employment discrimination on account of their reserve service and for the Ministry of Defence to collect and publish statistics on the number of complaints regarding discrimination. There are more than 300 reserve units in the UK. Given the very low incidence of reported complaints, I submit that a requirement of that kind would be disproportionate and burdensome.

However, there is another difficulty with the proposed amendment—it may be unnecessary for me to point this out, but I hope that noble Lords will forgive me for doing so. It refers to “discrimination” in the context of employment, but it is important to be clear that, despite the protections that I have referred to for reservists in the civilian workplace, being a reservist is not a “protected” characteristic under the Equality Act 2010, unlike characteristics such as age, disability, race, religion or belief, sex or sexual orientation. I would like to make a further point. It does not follow that an allegation of discrimination means that an individual has been discriminated against. One need only think of a simple example, such as someone who says that they have not been promoted because of their reservist status and that that needs investigation. Clearly when an allegation like that is made, it is quite a complex situation. While on the face of it the amendment appears simple, I suggest that there are significant difficulties below the surface.

Our approach, which I hope that noble Lords will agree with, is to develop open relationships with employers and to encourage and support reservists in their individual relationships with their employers. We encourage reservists to raise employer issues with their chain of command and to resolve issues through the improved relationship management process that we have put in place. I would like to think that those processes have borne fruit, in the light of the very small number of contacts with the website that I referred to earlier. Good relationships with employers are absolutely central to the Government’s programme for the Reserve Forces, but I believe that our resources in this area are better spent in strengthening these relationships than in creating and fuelling a reporting process.

The improved relationship with employers is increasingly evident from the number signing the Armed Forces covenant and the very strong examples of those employers up and down the country who have been recognised for their support to our Armed Forces. The issue raised by my noble friend Lord Attlee is slightly different, as I am sure he recognises, and I undertake to write to him about it.

I hope that the Committee will understand why I cannot support the proposal that the Bill should be amended. For that reason I hope that the noble Lord will agree to withdraw the amendment.

[Earl Attlee]

My Lords, when the noble Lord, Lord Touhig, moved his amendment, he said that it was a probing amendment. However, I support the general position and tone of my noble friend’s response. He mentioned the Reserve Forces (Safeguard of Employment) Act. I must say that post-Operation TELIC, the MoD’s support for reservists who found themselves in difficulties was absolutely pathetic. Reservists were on their own. I used to fondly think that if I found myself in difficulty I would have the big bad main-building MoD on my side. The reality was that reservists got no support from the Ministry of Defence at all. They had the protection of the legislation, but they had to fight the case on their own. Whereas if the MoD had rung up to say, “This is the Ministry of Defence, why aren’t you re-engaging the reservists?”, it would have saved an awful lot of difficulty. But the MoD was, frankly, pathetic. It is not the Minister’s fault, but that is what happened after TELIC.

[Earl Howe]

Was that on an employment issue specifically?

[Earl Attlee]

My Lords, it was on the ability of all reservists to get their jobs back. It was not well handled by the MoD at the time. Let us just hope that we do not have to mobilise large numbers of reservists. We should remember that a lot of them had not volunteered to be mobilised, so it was not what they expected.

--- Later in debate ---

[Earl Attlee]

My Lords, I strongly support my noble and learned friend and his noble and gallant supporters. I have deployed on two military operations, in addition to aid operations. One was peacekeeping and one was war-fighting but for our purposes there was no difference because a peacekeeping operation can deteriorate into a war-fighting or combat operation.

On both operations I willingly put my life, limb and security at the disposal of Her Majesty. “Her Majesty” might sound an old-fashioned term but to me it is all-encompassing. It means the nation, its citizens, the Government, the CDS—who at the time was the noble and gallant Lord, Lord Boyce—and the chain of command.

In return, the nation regards such service as highly commendable. If I did not come back or I was badly injured, it would be jolly hard luck. Statistically, it was actually unlikely. Whenever you deploy on military operations, it is a sad fact that it is not likely that everyone is going to come back intact, and you have to accept that if you are prepared to authorise military action. Obviously, my family would mourn my demise, but what I would not have wanted is the chain of command and the staff wasting their time on inquiries or litigation about my bad luck when they are trying to prosecute a campaign and to secure the absolute minimum number of casualties overall. I suspect that all of the cause célèbre cases that I have read about have been either misreported or misleadingly reported in order to make a good story. In some cases, I know this to be the case because at the relevant time I was in the headquarters handling the issue. If noble Lords want to be briefed privately on that, I am quite willing to do so.

It seems to me that there are several difficulties with involving the legal system when there appears to be a failure in an operation, the planning of it, the resourcing of it or the training for it. The first issue I am certain about because I have seen it myself. Sadly, in a few cases the deceased or those around him or her are the authors of their own misfortune. Sometimes, there is a failure to adhere to the training. I have read news reports where I have had to conclude that for one reason or another the training was not adhered to. Obviously, the MoD is not going to use any of these defences against a claim or misleading news report. We would be shocked if it did so, and I think that some Members of the Committee are a little bit shocked that I am taking this line.

The second issue is that there may be a very good technical reason why some equipment is not used. There could be intelligence to suggest that it is not a good idea. For instance, the capability could have been compromised in some way or using that equipment might be of benefit to opponents. There might be a military judgment to be made about which technology or capability is the highest priority to deploy to theatre. The Committee needs to recognise that in an operation logistic capacity is neither infinite nor perfect.

In about May or June 2003, I was running around in Basra province in southern Iraq in a soft-skin Land Rover. I was heavily armed with a Browning 9 millimetre pistol. My body armour was somewhere in the back of the Land Rover and I am reasonably confident that my driver had his SA80 rifle. It was a benign environment and I did not need protected mobility. But then the situation changed for reasons that the useless Chilcot inquiry may eventually tell us. Following tours had to adopt a much higher state of readiness and needed better equipment, and this was not anticipatable.

The final difficulty is morale. It does not improve morale anywhere in defence to have to endure all this completely unfair and inaccurate criticism. For instance, imagine that you are an expert in the DSTL and read a report suggesting that the very clever equipment you are developing and deploying is in some way inadequate. I have made this point before and I will make it again. I think that trying to pin responsibility for an individual fatality arising from Operation TELIC 1 against the then Labour defence Ministers is outrageous. There may well be questions about the legality, necessity, grand strategy and post-conflict planning of TELIC 1. However, the operation was militarily brilliant. We are one of the few nations in the world that could have undertaken it at all. Most nations cannot even get close to what we can do. We deployed a division out of theatre. We helped to get a regime to collapse at the cost of a mercifully low number of casualties, tragic though they were. The reality of military operations is that one never has all the training or equipment that one would desire or that could be made available in time. What you need is far better training and equipment than your opponent has, and that is exactly what happened on Operation TELIC 1. Noble Lords should make no mistake: in a deployed headquarters every fatality hurts like hell. I know; I have been there.

My final point is that there is a perverse inverse law that the level of scrutiny attached to each fatality on an operation is inversely proportionate to the number of fatalities taken. Proof of this is that if we had taken 1,000 fatalities on Operation TELIC 1, would anyone be worried about the ones who are currently a cause célèbre? I think that the Committee knows the answer.

[Earl Howe]

My Lords, I am extremely grateful to my noble and learned friend Lord Mackay for having given the Committee the opportunity to examine the set of issues that are of fundamental importance for our Armed Forces and indeed for the Government. As my noble and learned friend explained, the amendment would end the application of the Human Rights Act 1998 to service personnel engaged in military operations outside the United Kingdom. I have very great sympathy with the intention behind the amendment. Recent legal developments have raised justifiable fears in many quarters that service personnel could be unwilling in future to take the rapid and high-risk decisions essential for operational effectiveness, due to the fear of litigation. The Government fully believe that international humanitarian law, as embodied in the Geneva conventions, should have primacy over human rights law in the field of armed conflict. Addressing that issue was a manifesto commitment for this Government.

None the less, for reasons that I shall explain, I cannot invite the Committee to press this amendment. The Government are concerned about and determined to address the risks arising from developments in international human rights law, which have the potential to impose ever greater constraints on the ability of the Armed Forces and the MoD to operate effectively while defending the UK and its interests. As pledged in my party’s manifesto, the Government are absolutely committed to replacing the Human Rights Act, and will be consulting in due course on our proposals for a Bill of Rights. It is only right that that consultation should include the important question of how the Bill of Rights should apply outside the UK, and will ensure that all aspects of the change are properly and fully considered, not least its implications for the rights of our own Armed Forces, which would be affected by this measure. So I suggest that it is in the broader context of a Bill of Rights that these important issues are best considered. We are working closely with the Ministry of Justice as it develops its proposals.

I was very grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for his intervention. When we speak about combat immunity, there are two issues that need to be distinguished, as he made clear. There are negligence claims and common law, where service personnel believe that the MoD or the Government have put them at undue risk—for example, due to decisions on procurements—and then there are human rights claims under the Human Rights Act or the ECHR, which are claims against the MoD brought either by service personnel in respect of injury or death or by civilians.

On the first of those categories, the negligence claims, I was grateful for the comments of the noble Lord, Lord West. We are concerned that the Smith judgment has left the position on liability for events on the battlefield unclear. That is why we are considering legislation to bring about the necessary clarity. The noble Lord, Lord Tunnicliffe, asked me what harm could result from the Smith case. My response is that, as my noble and learned friend explained, in the Smith case—with no disrespect to the noble and learned Lord, Lord Hope—there were such strong differences of opinion between members of the Supreme Court that it is reasonable for thought to be given to legislating.

We recognise that there is a concern about UK court decisions eroding the doctrine of combat immunity, which prevents legal claims being brought against the Government for negligence in the course of duty in armed conflict. However, my noble and learned friend Lord Mackay has indicated that his amendment would make provision only with respect to the second category that I mentioned, injury or death of members of the Armed Forces. It would not deal at all with claims brought against the MoD under human rights law in respect of the actions of members of the Armed Forces—for example, by Iraqi nationals. The Government are concerned about both classes of case, and our ongoing work relates to both.

I should make clear that my noble and learned friend’s amendment relates to human rights claims and those claims brought under the ECHR. We are concerned about both types of case and are examining them in the context of our work on the Bill of Rights.

The noble and gallant Lord, Lord Craig, asked, in effect, why we could not legislate more speedily, perhaps through this Bill. I am as keen to make speed with this as he is but, alas, we are not quite yet ready. There are a number of areas that we are looking into, including examining different areas of legislation where changes could be made and what more we could do to support our Armed Forces personnel and their families. Work is under way, and we will be announcing further detail in due course.

I am most grateful to my noble and learned friend for raising this important issue today. It has been a truly excellent debate. I am confident that when we come to introduce our proposals for the Bill of Rights, we will address effectively the problem that is rightly of concern to him, and we will do so in the context of a much needed and thorough overhaul of our domestic human rights law. On that basis, I hope that my noble and learned friend will agree to withdraw his amendment.

Armed Forces: Future Force 2020

Debate between Earl Howe and Earl Attlee

Thursday 25th February 2016 Lords Chamber

[Earl Howe]

My Lords, as I am sure the noble Lord will know, the Royal Navy and the Royal Marines have an approach whereby they tend to train those already in regular service, but there is also a reliance on reserves. It is a question of getting the balance right in each discipline.

[Earl Attlee (Con)]

My Lords, surely the answer to the Question from the noble Lord, Lord Touhig—about which country is making use of specialist reserves—is the United States. The National Guard makes very great use of reserves—far greater than we do.

[Earl Howe]

I am grateful to my noble friend. Of course, at the moment we have a much more flexible set of arrangements to integrate regulars and reserves than we did in the past. We can call up reservists at very short notice. Cyber is, once again, a good example. It is a discipline that often allows lateral entry at a more senior rank than would be the norm for general applicants on first joining. Indeed, the Royal Marines have a cyber specialisation to provide the maritime element of the joint cyber unit. That specialisation is formed from qualified practitioners recruited from industry and academia.

Life Sciences

Debate between Earl Howe and Earl Attlee

Tuesday 6th December 2011 Lords Chamber

[Earl Howe]

My Lords, if I may I shall pass over that final remark. I am not sure that it is strictly relevant to the Statement. I was happy to hear from the noble Baroness of her support for the initiatives that we have taken and of her welcome for the measures. She said that the coalition Government had lost momentum in this area. From my perspective as a Research Minister, that is not the case. The Office for Life Sciences was an initiative of the previous Government that we eagerly continued. I pay tribute to the noble Lord, Lord Drayson, for his work in establishing the bridge between BIS and my own Department of Health. That relationship remains very active.

We recognised from the outset that a strong research base was vital for our future as a global knowledge economy. I refer both to basic research—curiosity-driven research—and research applied to the challenges that face business and public services. Despite enormous pressure on public spending, the BIS science budget of £4.6 billion a year has been protected; and in my own department the research and development budget is increasing year by year over the period of the spending review. In the current year it is just over £1 billion. That shows our commitment to the sector.

The noble Baroness asked several questions. The first concerned the use of patient data. There are very clear information governance rules that will protect the confidentiality of patients. We are not changing the rules. They will apply to whatever sector a researcher may come from: the public sector, a charity or the private sector. The rules are the same. All approved research is conducted to strict ethical standards. It is subject to robust regulation. Before any data are given out about a patient, the following conditions must be met. There must be confirmation that the data requested will support the health question being researched. There must be approval from an ethics committee to ensure that the research is ethically valid, including a check on the data requested. There must be information governance checks and approvals to ensure that the recipient can receive and process the data legally to conduct their research. There must be confirmation that the data are anonymised. No data will be disclosed to a researcher unless all the conditions are met.

The NHS gives out data in anonymised form. Before they are given out, they will be checked to ensure that reidentification is not possible. The main exception is where a patient gives consent for identifiable data to be disclosed. Except in that instance, companies or other researchers who receive data in anonymised form will not be able to identify the patient. The data will be checked before they are disclosed to any company, and legal contracts for the use of the data will require all recipients to comply with strict controls on using data lawfully. The companies will be subject to spot checks.

The noble Baroness asked whether patients would be able to opt out. The answer is yes. Patients will be able to opt out of their personal electronic health record being used for research purposes in an identifiable form. Patients should tell the NHS that that is their wish. The GP will record this in the patient’s record. We have tested technical ways of delivering this and of enabling researchers to identify patients who might be able to contribute to a research project without physically searching through records. Our pilot projects have been very successful.

The noble Baroness asked how all of us can be sure that our patient data are secure. Both the clinical practice research datalink and the NHS Information Centre will hold data securely. They are governed by strict access protocols to ensure that the data are processed lawfully, including when information is disclosed to researchers. Services are subject to the highest levels of independent audit and to regular checks. The data are held in a secure data centre not connected to the internet and are managed to the highest standards of information governance. I hope that that reassures the noble Baroness.

She also mentioned the European Court of Justice ruling on human embryonic stem cell patenting. As she knows, the UK is a world leader in the research and development of stem cell therapies, and the Government will continue to support and fund this work. The judgment of the court applies only to human embryonic stem cell lines, not to other stem cell sources such as adult or induced pluripotent stem cells that are used in stem cell research and regenerative medicine. The judgment does not impact on the regulation of embryos and embryonic stem cells in the UK. However, it is a landmark judgment and we will work with BIS and the Intellectual Property Office to further explore the options on how to address the issues from the ruling. The noble Baroness will understand that the ruling is recent and it is important that we consider the implications very carefully.

[Earl Attlee]

My Lords, we have plenty of time but perhaps I may remind the House of the need to avoid the trap of making a detailed speech rather than asking a short question.

Southern Cross Care Homes

Debate between Earl Howe and Earl Attlee

Tuesday 12th July 2011 Lords Chamber

[Earl Howe]

My Lords, I am grateful to the noble Baroness for her comments and questions. She asked a number of the latter. I hope I can answer most of them. It is important to appreciate that this is a managed process. The announcement that the Government made last month of a four-month restructuring window still applies, and we are at the first major stage of that process. Therefore, anxieties about the welfare of residents are misplaced because this is not a case of the collapse of Southern Cross. It is still very much a managed and solvent restructuring that is going on.

The noble Baroness asked me about the landlords. It is not for the Government to liaise with all the landlords directly but they are all represented on the restructuring committee, working to develop a plan for the future. Local authorities and the CQC will link as necessary with all the landlords as they take through their plans for the future management of homes. I am advised that the CQC understands that the Southern Cross landlords’ committee wants the handover of care home properties to take place at the end of September. The CQC is co-ordinating its activities to ensure that regulation does not prevent the handover across England. I hope that reassures the noble Baroness that nothing is going to happen tomorrow. It is very much part of a planned and structured process.

The noble Baroness asked about care homes that were in debt. Many companies, in all sectors, may have some degree of debt, quite obviously—this is a normal part of business, not necessarily a concern. We are clear that Southern Cross’s particular business model—not owning but leasing nearly all its properties—is a unique model and that is what has given rise to its particular problems.

The noble Baroness asked about the consequences of the landlords taking back their properties. The department is very clear that it expects all parties to maintain service continuity and quality of care while the restructuring process is ongoing. Our principal concern, as I have said, is for the safety and well-being of the residents. CQC will pay particular attention to any care homes where there is a concern that quality may be at risk or inadequate. It does have the resources to do this. It has indicated that there is not a problem in that sense. CQC has regular dialogue with Southern Cross at corporate level in addition to the attention it gives to individual services. We have emphasised to CQC the importance of ensuring that Southern Cross homes continue to comply with regulations and safety and quality requirements. Of course, we expect CQC to take the necessary action if it finds, for example, that staff reductions are affecting safety and quality of services.

The noble Baroness asked about government money for Southern Cross. Southern Cross is not asking for a bailout. It is looking to resolve its problems and it is for the company, its landlords and those with an interest in the business to put in place a plan that stabilises ownership and operation of the care homes. That process is happening and we must let it continue.

A number of providers that will acquire Southern Cross homes are already registered with the CQC as care providers in their own right, such as Four Seasons. There are established processes in place to allow these providers to extend their current registration to take on additional care homes. That process, assuming that it occurs, is relatively straightforward. Providers who are not known to or registered with the CQC will require a full application that will be subject to full scrutiny and a determination of fitness to provide the service. This cannot be a case of companies registered overseas suddenly becoming care home operators—that will not happen. Any new operator must demonstrate that they are fit and proper people to conduct this type of business and prove that to the CQC. Each landlord will be required to ensure that it has arrangements with a reputable and capable operator which can meet the CQC’s requirements. This is what the companies are now resolving as restructuring discussions continue.

It is also important to emphasise that while the CQC is committed to ensuring continuity of care, it will not lower the regulatory bar or reduce the rigour of registration. CQC’s principal concern is the safety of service users and it will not compromise on the standards that are required. At the same time, we expect that local authorities will ensure that any transfer or new arrangement to provide care for residents takes place smoothly and with continuity of care for service users assured. We are talking to the Association of Directors of Adult Social Services, the Local Government Association and, of course, the CQC, as I have mentioned, to ensure that robust local arrangements are in place.

Finally, the noble Baroness asked about the staff and their legal position. This is not a matter that the department can comment on directly, but staff are protected by the relevant employment law. I understand that Southern Cross has undertaken in a letter to care staff that they will be transferred under their existing terms to new operators under TUPE. That is our understanding of the position.

[Earl Attlee]

My Lords, perhaps I may remind the House of the benefits of short questions which will enable my noble friend the Minister to answer as many questions as possible.