Armed Forces Readiness and Defence Equipment

Debate between Lord Beamish and Martin Docherty-Hughes

Thursday 21st March 2024 Commons Chamber

[Martin Docherty-Hughes (West Dunbartonshire) (SNP)]

Well, this was a debate that certainly went in directions I never thought it would go.

It is always a privilege to follow the hon. Member for South Shields (Mrs Lewell-Buck), who may be in a different party but is a very good friend on the Defence Committee. I commend the report from the Committee, of which I am once again a member. There are a few things we do not agree on, but on the vast majority of issues we do agree. That brings me back to the old Scottish nation’s motto, which is “In Defens”. I am very much akin to that. I also share some of the issues raised by the hon. Member for Rochdale (George Galloway) on how we do not push ourselves into conflicts that are unnecessary. I may come back to that in a few moments.

I want to come back to the points made by the right hon. Member for Rayleigh and Wickford (Mr Francois) on background and family. I have said umpteen times in the Chamber that my brother served in Iraq and had two terms in Afghanistan as a reservist. I will come back to the specific point on people in the armed forces later. The right hon. Gentleman talked about his dad. My dad is 99. I am lucky my dad is still here. He survived the worst aerial bombardment these islands have ever seen. It was only after about 75 years that the Government recognised that it was the worst aerial bombardment the UK had seen during the second world war. Last Wednesday, I was able to attend, as I try to every year, the 83rd commemoration of the Clydebank Blitz, which took place on 13 and 14 March 1941. I also stood at one of the mass graves in Clydebank on Saturday to lay a wreath on behalf of my constituents. I do so with privilege and in honour of our family of survivors.

I want to pick up on three points relating to readiness in terms of people, partnership and position, and how they link critically to the word resilience, which I think I heard some Members mention. The right hon. Members for North Durham (Mr Jones) and for Warley (John Spellar) are probably sick to death of me talking over several years about resilience, but it is inextricably linked to what readiness should be all about. Let me talk about people first and how resilient are the armed forces.

It is a pity that the hon. Member for Wrexham (Sarah Atherton) cannot be here today—I did tell her that I would mention her today—because she chaired a sub-committee on women in the armed forces, which exposed some of the most profoundly difficult questions and scrutiny in Parliament about recruitment and retention that the armed forces have ever had to face. I hate the term “ordinary ranks”. What does “ordinary” mean—people on the frontline who have to go over the ditch? There is nothing ordinary about that. As I said earlier, my brother did it as a reservist, but the report exposed dreadful questions about women and members of black and ethnic minority communities. Why are we not retaining or even recruiting them? Why, moreover, are young men not wanting to join up? This returns me to the issue of terms and conditions, which I have often talked about.

I remember arguing with a former Chair of the Defence Committee—he is not here, but I see that the right hon. Member for New Forest East (Sir Julian Lewis) has turned up—who was also a former Minister. He had said that members of the armed forces were not employees or workers. That may be the case in law, but they still deliver a service. If we want to retain people, it is critically important that we copy what so many of our NATO allies do in recognising the value and worth of members of the forces—whether in the Royal Navy, the Army or even the Royal Air Force—and recognising their rights, one of which is the right to representation. My party and I have always said that we believe the armed forces require a representative body like the Police Federation.

The kingdom of Denmark, for instance, which paid the blood price in Iraq and Afghanistan, has a very robust armed forces representative body. The problem there is not about recruitment, but about how in God’s name you persuade people to leave the armed forces in Denmark, because it is such a good—wait for it—employer. They are still willing to go over the ditch and take up the cudgels on behalf of their country. That brings us to the question of how we should deal with people here in the UK who may be over-reliant on charitable organisations, which, of course, are very well-meaning and committed.

[Mr Kevan Jones]

I agree with the points that the hon. Gentleman is making, but I think that there must be a real, radical revolution in the way in which the armed forces not only recruit but employ people. The number of 18-year-olds is falling. We are going to need more flexible employment models enabling people to leave, come back in, have career breaks and so forth. Unless we do that, we will not be able to persuade them to join our armed forces.

[Martin Docherty-Hughes]

I agree with the right hon. Gentleman, and I am glad that his party has joined mine—I think; I am not sure whether this is still a Labour manifesto commitment—in recommending the introduction of an armed forces representative body. However, a critical issue is how the skills that already exist can be utilised. I cannot believe that I am going to use the word “emulate” when speaking of the United States, but that flexibility is emulated by the United States and also by many of our other NATO allies.

When it comes to readiness and having people on the frontline in the physical armed forces, I am not going to play the numbers game, because this is a political and philosophical issue. It is about how we retain and recruit. I think that fundamental rights for members of the armed forces should be enshrined in law. They should not need to go to those very well-meaning charitable organisations to receive assistance with housing, with their mental health, and even with their physical health. Members of the Danish armed forces who have suffered an injury do not go to a special unit; they go to a Danish national hospital like every other Danish citizen, because there they will benefit from the delivery of a robust public service.

That, in turn, brings me to the way in which the armed forces and, critically, the Army in particular have been challenged during the pandemic. Some former members of the Defence Committee who are not present today kept going on about the need for the Army to step up to the plate in dealing with resilience. The right hon. Member for North Durham has heard me talk about resilience in Committee. It is not, in my view, the role of the Army to pick up civilian action. During the pandemic, the Army in England and Wales had to do that in respect of the Nightingale hospitals, not just in terms of logistics and design but in terms of the actual physical infrastructure. Why was that? It was because most parts of the NHS procurement processes to build the Nightingale hospitals had been privatised years ago. We had taken a very physical state ownership of that civil structure of resilience and readiness out of the hands of the Government and the NHS and given it to private contractors, who have made billions on the back of it.

Let me give a Scottish example, the Louisa Jordan Hospital. The Army stepped up to the plate in helping with the logistics, but they were not required to build the internal structure of the Louisa Jordan. Most of it was in the Scottish conference centre. That internal structure was built through NHS Scotland procurement, because it was fit for purpose and ready to play its part. When we are talking about people, we should bear in mind that readiness is not just about members of the armed forces; it is also about the larger civilian infrastructure.

The right hon. Member for Warley is not present now, but he and I—along with, I think, the right hon. Member for New Forest East—travelled to Washington some years ago with the Defence Committee. Part of our purpose was to understand where our infrastructure was. How, for example, do we transfer, through partnerships between states—critically, within the continent of Europe —a division, or tanks, across bridges and roads which, since the end of the cold war, are no longer equal in terms of weight or infrastructure? How difficult is it to move a tank from a port to, say, technically, the eastern front if that is required? Partnerships of that kind have been allowed to disappear in the post-cold war era.

However, there are other important partnerships, such as the United Nations with its peacekeeping role. It was disappointing that not only the United Kingdom but other countries have had to pull out of Mali, at the instigation of the Malian Government, in the last couple of years. That peacekeeping role is a crucial part of the infrastructure of maintaining international order grounded in the rule-based system. I was also disappointed by the Government’s decision to postpone, or put into abeyance, their investment and funding for the United Nations Relief and Works Agency in Palestine on the basis of a very small amount of information, or accusation, from the Government of the state of Israel in respect of the conflict in Gaza. I hope that the Government recognise the value and worth of that partnership in trying to quell some of the many big problems that are faced in that part of the world.

I think I have had my 10 minutes, but let me end by saying a little about the European Union in relation to partnership and position. I was glad to hear that the official Opposition may now be considering an improved relationship with the EU. We in the Scottish National party believe it is important to have a mutual defence agreement with the EU. As for the question of position, I am a Euro-Atlanticist, and I think it important for us to reposition ourselves, away from the issues of the Indo-Pacific.

I agree with the hon. Member for Devizes (Danny Kruger) about the nuclear proposition. I think that the hon. Member for Rochdale and I are the only Members present who oppose nuclear weapons, but I think there is general agreement on the need to take the deterrent into another budget heading so that we have a full understanding of what that two-point-whatever percentage of GDP is. I hope that the Government will be able to respond to that in the debate today.

Armed Forces Bill (First sitting)

Debate between Lord Beamish and Martin Docherty-Hughes

Thursday 25th March 2021 Public Bill Committees

[Martin Docherty-Hughes (West Dunbartonshire) (SNP)]

I thank the Minister for moving the clause. I note the Government’s willingness to align the military judicial process so that it is more akin to a civil jury. The concern of my colleagues on the Opposition Benches is that, in the evidence recently given by Judge Lyons to the Committee, he stipulated:

“I believe, in the modern world, that the maintenance of discipline is in everyone’s interests, and as a first step I would wish to see it opened to OR-7. I think opening it further is a step too far at this stage.”

What concerns me and my SNP colleagues is that when pushed on the rationale for such an opinion, Judge Lyons was unable to substantiate why someone with substantial service under OR-7 should be excluded. Therefore, the judicial process, in terms of peer judicial decision, does not reflect the reality of military life.

I hope that the Government will consider accepting the amendment. There are those who have substantial service in the armed forces, not just in the sense of command but in lived experience of being in the Army. Some of the evidence given to the Defence Committee’s Sub-Committee on Women in the Armed Forces, and the armed forces ombudsman’s evidence in recent Defence Committee meetings, reflected that the judicial processes of the armed forces are not held in high regard by many serving and former service personnel. The amendment would—at least in some sense—go some way to rectifying that, ensuring that the military process is reflective of the reality of military life. At this point, if the Government are unwilling to accept the amendment, I will press it to a vote.

[Mr Kevan Jones (North Durham) (Lab)]

I wish to speak in support of the amendment. The issue was quite clearly looked at by Judge Lyons in his report. As has just been said, there is no rationale for why other rank 7 was seen as a particularly relevant cut-off point. The important thing is that we make the move to mirror the civilian justice system, although I certainly accept that there are differences between the two because of operational issues.

To be judged by one’s peers is a fundamental right. The provision would exclude large numbers of individuals, including some who may have many years of experience in the armed forces and of sitting on courts martial. I do not think that a good enough reason for excluding those individuals has been put forward in evidence. One possible justification was that people would not understand the procedures. Well, I find that rather patronising for non-commissioned officers, some of whom have been in the armed forces for many years. I would draw a parallel with civilian courts, where there is no qualification process or aptitude test for sitting on a civilian jury. It is for them to weigh up the evidence.

I think that Judge Lyons was basically saying in his report that the movement he outlined was all that he could get away with in the military legal system. I think that he was pushing for further change, but quite clearly did not want to offend or cause things not to go further. I think that he certainly saw this as a step towards, possibly, allowing other ranks to sit on courts martial.

The important point is to ensure that the individuals being tried feel that they get a fair hearing. In the hierarchical way that courts martial are judged at the moment, individuals might not perceive the process as fair because they are judged by more senior officers who determine promotion and other prospects for lower ranks, and might not only have limited understanding of the individual’s life experience, but could ultimately influence the outcome of the individual’s career, for example. I do not think a good enough reason has been put forward for why this cannot be extended, and I therefore support the amendment.

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[Mr Jones]

I understand that there are individuals who wish to support a ban on those under 18 joining the Army. I know that that has been campaigned on for quite a while now. Those individuals draw an analogy between what the Army does and the situation of child soldiers around the world. I do not agree with that, and I must say I do not agree with the provisions of the new clause.

It is quite clear now that individuals under 18 cannot be sent into combat, which I totally support and think is right, but we must balance that against the opportunities that recruiting 16 to 17-year-olds gives those individuals. I suggest that anyone who wants to see the positive way individuals can and do improve their lives visits the Army Foundation College in Harrogate.

Many of those individuals, as the hon. Member for Glasgow North West highlighted, come from deprived communities; many have been failed by the education system, so credit to the Army particularly for the work it does at the Foundation College, giving people a second chance, which the education system has failed to do. On my visits there, what appalled me was the fact that the education system had failed individuals, but the Army had given them a second chance with raising basic numeracy and literacy skills. Individuals who would possibly not have had an opportunity to have a fulfilled career were able to do so through the work undertaken at the Army Foundation College.

The other issue raised is the duty of care for those individuals, but we have come a long way on the duty of care for under-18s. There was a huge problem with the way under-18s were supervised and looked after, especially those who joined the armed forces who came from care, for example. Mr Justice Blake’s reforms following Deepcut had a huge amount to do with that.

[Martin Docherty-Hughes]

We will disagree, I am sure, on the age of recruitment, but on new clause 2 on minimum service terms, does the right hon. Gentleman recognise that, if under-18s who are recruited at 16 remain within the armed forces, that minimum service should be included? While we may disagree on the recruitment age, should that minimum service not be included within their service period?

[Mr Jones]

I will come on to that—I was going to address that in the second part of my contribution.

There has been change in terms of the duty of care of individuals. Ofsted, for example, now inspects places such as the Army Foundation College, and the practices that the Army has in place to ensure that there is a duty of care around those young people set an example that many other institutions could follow. In terms of the opportunity it gives people, I would not want, by banning under-18s, to stop many young people getting the positive move forward in their lives and the opportunities that the Army gives them.

There are two issues on which I do agree with the hon. Member for Glasgow North West, relating to early service leavers. That is not just an issue for under-18s, but for those who join post 18. To be fair to the armed forces, they have done quite a lot on ensuring that early service leavers have support. That is an issue that I raised when I was in the Ministry of Defence, because some of those individuals end up in the social services network, homeless and so on.

The question is about when people leave, if they are under 18 and decide that the armed forces, or the Army in particular, are not for them. I stand to be corrected if I am wrong, but I think there is a package around those who have left care and joined the armed forces. Anything that can be done to improve their experience is the right thing to do.

I am not against new clause 2, but we need to look at what happens in practice. There are quite good reasons why people have to sign on for a certain period of time, because of the commitment. From my experience, however, there is a mechanism to enable most people who do not want to stay in the Army and other armed forces to leave. I do not think it is such an onerous straitjacket as has it been described by some individuals.

I understand where the hon. Member for Glasgow North West is coming from, and I accept that there is a difference of opinion, but overall, my experience is that service in the armed forces gives great opportunities to many young people who would not get them if we did not recruit under-18s. The important thing to say is that many people who join at that age go on to have very good and fulfilling careers in the armed forces, and they also gain life skills and technical skills that they use when they leave the Army and move into civilian life. That is why I do not support the new clauses.

Overseas Operations (Service Personnel and Veterans) Bill (Fifth sitting)

Debate between Lord Beamish and Martin Docherty-Hughes

Committee stage & Committee Debate: 5th sitting: House of Commons
Wednesday 14th October 2020 Public Bill Committees

[Martin Docherty-Hughes (West Dunbartonshire) (SNP)]

When the hon. Member for Islwyn was introducing the amendment, he noted that it was not meant to take on board issues in relation to fully autonomous systems. Nevertheless, it should be recognised that fully autonomous systems will be with us sooner rather than later and that, in those systems, there is a human decision-making process that must be safeguarded. Artificial intelligence is artificial, requiring human instigation to create the algorithm to make the decision-making process, and we must keep that in mind as we recognise the need for and validity of securing protections.

[Mr Jones]

I agree. Again, some people writing or talking about this area are saying that somehow the human being has nothing to do with it. The hon. Gentleman is correct in that even if we get to having a futuristic system with fully autonomous vehicles and in-flight combat between various systems, swarms of drones and things like that, a decision will still need to be taken on how that system is used. That is an area where not just in the UK but internationally we will need to look at rules of engagement and the definition of an autonomous vehicle. There is increasingly a move towards autonomous vehicles. Look at the Team Tempest programme from BAE Systems and its partners and how that is going: there can be a pilot, but the design will not need a pilot, and that ain’t that far away—it is coming up fast.

It comes back to the decision-making process. The hon. Member for Filton and Bradley Stoke mentioned the chain of command issue. That goes to the heart of the Bill because of the importance of having the audit trail for who took which decisions. It is difficult for anyone in the chain of command to take a decision, from the person executing the mission on the ground right up to a Minister signing something off. That is not an easy process. Can things go wrong all the way through? Yes. However, I would argue that as long as a decision is underpinned by our legal processes right the way through to authorisation by a Minister to ensure that it is legally watertight, we should be okay. Mistakes will happen. What a lot of the public find strange is that in cells that deal with targeting, there are MOD or RAF lawyers sat there, saying, “I am sorry, you cannot do that.” It shocks people.

Unmanned aerial vehicles have got to the point where there is a bit of folklore when people make a decision. It is therefore important to ensure there is that legal framework. However, as I said, things will go wrong, and my hon. Friend the Member for Islwyn is trying in the amendment to consider what happens when things do go wrong. Is somebody sat in RAF Waddington classed as being on overseas operations? That is a grey area that perhaps has not appeared yet in all these claims, but I think it will.

The evidence we have taken in the last few weeks has highlighted how, in many ways, this is an easier area to look at in terms of investigations because there is—there should be—that chain of decision making. However, it does get complicated when we are working with allies. I am confident that we have some of the most robust rules in terms of targeting and rules of engagement, but—how can I put this diplomatically?—I do not think it is the same for some of our allies, especially one of our closest allies. Could we argue that some of the examples I have seen in Afghanistan and Iraq were proportionate in the way they were conducted? I do not think they were. That has led to the idea that somehow we are the same.

Let us suppose we get to the situation where we have a legal challenge to somebody who has been sat in Waddington, has legitimately followed the legal advice and something goes wrong. What happens? Are they classed as being on overseas operations? We should give them protection because they are not just following orders, but following the legal guidance that has been supplied to them as to why they are carrying out the mission. That is an area we need to look at.

It links to a broader point about what we deem to be overseas operations. Eminent lawyers will want to argue around the head of a pin about this, if we do not look at it. The other side is other operations. Increasingly we, as a nation, are not going into conflicts on our own, but with other nations. That leads to a situation where, on occasion, UK forces are not under the command of UK personnel, but those of other nations. I do not think people realise that.

Some nations have different interpretations of what is proportionate. How are they included, especially within—that misnomer—peacekeeping? Peacekeeping can be dangerous. I have visited parts of the world where peacekeeping is taking place that were far from peaceful, and were stressful for the individuals involved. Is that classed as an overseas operation?

When I was walking in this morning—I often think when I am walking—I was thinking that this gets to the definition of what an overseas operation is. If somebody were based at NATO headquarters in Brussels, would that be classed as an overseas operation? I am not suggesting they would be involved in a mission such as an airstrike or combat in Brussels, although perhaps they might be on a rowdy Friday or Saturday night in the Grand Place. Is that classed as an overseas operation for that individual? Those individuals are lone officers, but members of our armed forces are serving in ones and twos around the world, mentoring forces, doing a great job in defence diplomacy and ensuring that the high standards we have in this country are passed on to other nations.

My hon. Friend the Member for Islwyn talked about the UAV operators themselves. I have read a few studies about their mental health and the jury is out on evidence of increased PTSD and other things. It is a strange environment for individuals, as my hon. Friend said, because they are separated from the battle space, but they see and do some graphic and dangerous things. Having seen some of those videos, what happens is not pretty. The jury is still out on the issue of mental health effects and that is an area where we need more research, not just in this country but internationally. That links to part 2. If those individuals developed mental illness later, given the time limits set out in the Bill, would they be excluded or not? That is another area that we need to look at when we come to part 2.

Can we ever future-proof legislation? No. Politicians all think that we can see into the future as if with hindsight, but unfortunately we all know that most of our legislation is reactive to events. We can try to make it as future-proof as possible, however, and amendment 23, which I presume is a probing amendment, is really a way of asking whether the MOD and the people who have drawn up the Bill have thought about the area. Whether we like it or not, it will increasingly become a challenge not just for how we train people, but for how individuals are legally protected. Even if it cannot be incorporated into the Bill, I would certainly like the Ministry of Defence to look not only at the training, but at what the legal status of those individuals will be. The amendment is welcome in allowing us to explore some of those areas; I hope that it will give MOD policy makers some food for thought on where we take this in the future.

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[Martin Docherty-Hughes]

In reality, the right hon. Gentleman wants to remove bureaucracy because justice delayed is justice denied, whether someone is the accuser or the accused. His new clause seeks clarity for minor offences.

[Mr Jones]

It is clarity for the individuals, so that they can be dealt with swiftly. If Judge Blackett had been consulted on this Bill, that might have been included.

I will not try your patience, Mr Stringer, because I might need it when I come to new clauses 6 and 7 on the broader issues around investigation, which I notice the MOD is now moving on and possibly recognising that it has missed a trick in the Bill. The new clause would give the court powers. We are not talking about serious offences or common assault. We did a similar thing in the Armed Forces Act 2006. We gave commanding officers the powers to deal with minor offences, because the old system was taking an inordinate amount of time to deal with them. We are basically setting up a de minimis case. As the hon. Gentleman just said, it would deal with the bureaucracy and make sure that we concentrate on the most serious offences.

People might say, “How does this get into ambulance-chasing solicitors?” With IHAT and Northmoor, some of the cases put forward were to do with such things as slaps and assaults, which would actually meet this criteria. Why did it take years to investigate whether somebody was slapped if it was on a Saturday night in a pub and classed as a common assault? Why did it take years to investigate or in some cases re-investigate? We could argue that it happened in Iraq or Afghanistan or somewhere else and it might be more difficult to gather evidence and witnesses, but it should not be beyond the wit of the legal system to look at the evidence initially and say, “To be honest, the threshold for this would not be very high.” Why were they brought? We know: in some cases, clearly, Phil Shiner was trying to get some compensation out of an alleged fault, but the pressure was put on those individuals who were accused of things that were minor and would have been dealt with normally. The new clause frees up the criminal justice system and the investigators to concentrate on the things that we want to concentrate on, which are the more serious cases.

Would that protect our armed forces? Yes, I think it would, because we would have a sense of fairness for them—they would be getting speedy justice, they would not go through reinvestigation and they would not have to wait an inordinate length of time for things dealt with as a matter of course in a magistrates court. It is a way to give protection to servicemen and women, while also—as the hon. Member for West Dunbartonshire said—making the system more effective.

The important thing, however, is the judicial oversight—this is not just deciding to stop prosecution; the evidence is looked at, the de minimis test is applied and only then would that be ended. That would be a huge improvement. The Minister said he was looking for improvement of the Bill and, to me, this is an obvious way to do it.

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[Mr Jones]

I just find this remarkable, Mr Stringer. We have a Minister who has come in here to read his civil service brief into the record. He is not taking account of anything that is being said, by myself or by other hon. Members. When he wants to be questioned on it, he will not take interventions. It is a strange way of doing this. He possibly thinks that doing a Committee is just about reading the civil service brief the night before and then reading it into the record. I am sorry, but that is not how we do scrutiny in this House.

With regard to the Minister’s comment that this measure would be more appropriate in an armed forces Bill, that may well be the case, but he has an opportunity to put it in here. He can sit there and smile but, frankly, he is doing himself no favours. He has said that he wants co-operation on the Bill, but he is doing nothing. He is going to try to plough through with what he has got, irrespective of whether it damages our armed forces personnel. That makes me very angry.

The Minister said that the Magistrates’ Court Act provisions would not cross over to this Bill. We could draw up a protocol around that, which would fit in the Bill. If the Bill is supposed to be the all-singing, all-dancing, huge protection that we are going to give to our servicemen and servicewomen, then that should have been in the Bill.

[Martin Docherty-Hughes]

Does the right hon. Gentleman recognise that the ranks, as opposed to the chain of command, would be best served by an acceptance of the new clause, because it gives clarity and allows them to move forward on those cases, within the elements that he has discussed?

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[Mr Jones]

My hon. Friend makes a very good point. We were told, although I do not believe it, that the Government wanted to improve the Bill and would consider amendments. I accept that Opposition amendments are not always properly drafted to fit into a Bill, but it is quite common for the Government to say that they will look at an amendment and change it, but put the spirit of it into a Bill. There is an opportunity to do that now, but unfortunately we have a Minister who clearly just wants to say, “No, we will get the Bill through as drafted, and that’s it,” which is contrary to his statements about trying to work together with people. There is an opportunity to do that now and I do not understand why we cannot do it, as my hon. Friend says.

The Defence Secretary’s statement goes on to say:

“A key part of the review will be its recommendations for any necessary improvements. It will seek to build upon and not reopen the recommendations of the service justice system review”.—[Official Report, 13 October 2020; Vol. 682, c. 9WS.]

[Martin Docherty-Hughes]

On the justice system review and its relationship to the Bill, in answer to a question from my hon. Friend the Member for Glasgow North West last week about Major Campbell’s 17 years of dreadful investigation, General Sir Nick Parker said:

“That will not happen if you have a credible system that investigates and you address some of the cultural issues in the chain of command by making it genuinely accountable for what is happening.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Bill Public Bill Committee, 8 October 2020; c. 98, Q201.]

Does the right hon. Gentleman agree that the Bill does absolutely none of that?

[Mr Jones]

It does not. If somebody like Nick Parker is saying that, we need to take it seriously. As for how the Bill has been born, I would love to know who is claiming paternity for it, because a lot of people seem to have been excluded—certainly the Judge Advocate General has. I would have thought he was the obvious person, as a senior military person in the justice system, to be brought in at an early stage to look at some of the things we shall talk about later—not only the issues of international law, but how the system could be improved.

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[Mr Jones]

I am sorry, Mr Stringer. I was going down memory lane to happier times. Just to finish that point, the welfare pathway, which the Government who came to power in 2010 rightly changed and renamed the covenant, was something that I introduced in 2010.

The hon. Member for Derbyshire Dales raised the issue of investigations and what we did. She is the new Member for that beautiful part of the world, and I have huge respect for her predecessor. I spent many a time at Kinder Scout and Hope as a boy walking round that area, so I know her area very well. But I think that she has to recognise the issue in terms of Iraq and Afghanistan. Yes, huge and terrible accusations were made about what was going on. There was pressure not only from what could be called the outriders on the left but from her own party to the effect that some of these accusations should have been investigated. If there was a failure, it was around investigation.

I do not want to try your patience, Mr Stringer, but we also did the Armed Forces Act 2006, which meshed the three service disciplinary systems into one. That was a huge issue, but it actually improved service discipline and investigations. This is an opportunity to get this Bill right. Let me say to the hon. Lady that I just want to get the Bill right. I think that if we had an approach from the Minister whereby he would take on board some of this, we could do these things, both here and in the other place, but there is a tendency, which I do not like, to think that somehow we in this place scrutinise legislation, and the Government know that they are going to change things but they change things in the House of Lords, giving the public the impression that somehow the House of Lords is this all-singing, all-seeing, body when actually those things should be done here. I am already talking, as I am sure others are, to Members of the House of Lords, including, I have to say to the Minister, some of his noble Friends who I think also have concerns about the Bill.

There is an opportunity here to do that with investigations. The issue with the amendments that we were talking about is really this. We had the debate about investigation of de minimis things, but what I think everyone wants is that investigations can be done quickly—not be done quickly and dismissed, because we have to get the balance right in terms of people making serious allegations that are investigated properly. Let us remember that we are talking here about allegations from civilians against members of the armed forces, but remember also that there are often cases between servicemen and women, who are making accusations against themselves—against individuals. There has to be a sense of fairness, and it cannot be right that it goes on for a very long time, so it does need judicial oversight. If someone is accused of something, that should be investigated properly and quickly, but that should also be done in a legal process that cannot be challenged—well, I am sure that everything can be challenged if someone pays a lawyer enough, but we must ensure that we have a situation whereby it is as judicially robust as possible.

[Martin Docherty-Hughes]

In response to a question asked by the hon. Member for Blaydon last week, General Sir Nick Parker stated:

“Nobody would want anything in the process that somehow allows people who have behaved badly on the frontline to get away with it. But all of us would believe that the process has to be quick, efficient and effective to remove the suspicion of a malicious allegation as quickly as possible. I cannot see how this Bill does that.”–[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 94, Q188.]

Does the right hon. Gentleman agree that legitimacy and effectiveness are not an element of this Bill and that we need to see structural change before we can go forward?

[Mr Jones]

I agree. The impression that I think some people try to give of the armed forces is that the armed forces, which have a job to go and do, want to be above the law. Nothing could be further from the truth.

Overseas Operations (Service Personnel and Veterans) Bill (Sixth sitting)

Debate between Lord Beamish and Martin Docherty-Hughes

Committee stage & Committee Debate: 6th sitting: House of Commons
Wednesday 14th October 2020 Public Bill Committees

[Mr Jones]

Yes. That is the problem. How do we get at it? Is it about a lack of resource? I think it is. Going back to Iraq and Afghanistan, as I said this morning, there was huge pressure from all sides, including the Conservative Opposition at the time, that these things had to be seen to be investigated to the nth degree. There was a culture, which led to a resistance to say in some cases, “There is no evidence to stand those.” If that was done politically, I understand why people have issues with that.

However, if there were a judicial process, which new clause 6 provides for, overseen by a judge, that would give confidence to the public and the international community, in relation to our obligations, that this was being done not for political reasons but because a judge had determined independently what the facts are. It would certainly help.

[Martin Docherty-Hughes (West Dunbartonshire) (SNP)]

In response to a question the right hon. Gentleman raised last week, Judge Blackett said, in relation to the Magistrates’ Court Act 1980, that

“a great raft of those allegations in IHAT and Northmoor would have gone with that.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 122, Q254.]

Is that not the right hon. Gentleman’s point? Much of what the Bill seeks to do could easily have been dealt with through existing legislation.

--- Later in debate ---

[Martin Docherty-Hughes]

Again, the hon. Member asked Judge Blackett question last week in relation to Marine A. Judge Blackett responded that

“a number of the issues here were raised by Marine A subsequently through the Criminal Cases Review Commission and back to the Court of Appeal, and they were never raised at first instance. Had he”—

Marine A—

“raised them at first instance—had all the psychiatric evidence that came out eventually appeared at the start—he probably would have been charged with manslaughter rather than murder”, ––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 124, Q262.]

which is what he was charged with. It was actually on the second appeal that it was overturned and the prosecution was for manslaughter. Does the right hon. Member agree that the process is at fault and that, to improve that, the Government need to make substantial changes and investments in the process, rather than with the Bill?

[Mr Jones]

It is the process. I am glad that the hon. Member has mentioned the case of Marine A, because the way it was dealt with worries me. People might not be familiar with it. It was an individual who was on operations in Afghanistan and shot, on camera, a wounded Taliban fighter. That case did not come about through an ambulance-chasing lawyer; it came about because somebody filmed the shooting and was so horrified by it that they handed in the video. That was not an ambulance-chasing lawyer saying, “This man’s killed somebody in cold blood.” That case is important.

The process being adopted concerns me for two reasons. My first concern, on the point we raised last week, is about the support that servicemen and women are getting while they are going through the process. Clearly, in that case, the individual did something that goes against everything that members of the armed forces are trained to do. But when we look at the overall envelope of what he had been up to—the psychological trauma and the other things he had been through—we could explain it not as murder, but as manslaughter. Again, if that case had gone through this type of system, it would have led to those issues around the individual’s mental health, which do not excuse his actions but obviously had an impact on what happened, and to the first issue being seen as manslaughter, which would have been a fairer way of dealing with it.

My second concern about the Bill is that if that happened more than five years after that case, the presumption would have been not to prosecute. There would then have been a political decision, because the Attorney General would be deciding on prosecution. That individual could then end up before the International Criminal Court, because we would deem that we had not prosecuted.

There was a media maelstrom around the case. As with many such cases that we have all dealt with, it got a nice headline in the Daily Mail or The Sun, but there were obviously more details to it. If we have a similar case in future on which there is to be a political decision, it will be a strong politician or Attorney General who will turn around and say, “Yes, I want to prosecute this person.” There would then be the danger of the International Criminal Court picking up the case. Whereas in the process that I am proposing in new clause 6, the judge would review all the evidence, including, in that case, whether he should have been charged with murder in the first place when it went to court or to appeal—and no, he should not have been.

As many Committee members have said, and certainly, having spoken to members of the armed forces and veterans, they do not want to be above the law; they want to be treated fairly. That is what we are here to ensure. I have spoken to the individuals involved in the Marine A case, who explained the reasons why it happened, which I understand. It did not fulfil the high standards that are expected of the armed forces. In that case, it is about being fair to members of our armed forces, and ensuring that we are doing the right thing. Again, the combination of new clause 8, which we debated this morning, and new clause 6 would start to reduce that pile of potential litigants, even if they came from vexatious lawyers or elsewhere.

The other issue, which I can never get my head around, is the idea that the same case can be reinvestigated, as in the Campbell case. That is just ridiculous. There must come a time when we have to say, “Well, it has been looked at in detail. There has been evidence.” There might be a delay to trawl for witnesses and other evidence, but in effect what that says is, “Basically, we will do a fishing exercise until we get the answers that we want.” That cannot be right.

My new clause 7 addresses some of the limitations around investigations. I think we on this Committee all want thorough investigations, and so do members of the armed forces; what they do not want is endless reinvestigations that go on for, in the Campbell case, 17 years. New clause 7 would put limitations on reinvestigation. The section applies where

“(a) a person has been acquitted of an offence relating to conduct on overseas operations,”

so it would apply to those individuals.

I know this is not within the scope of this Bill, and I am sure you would pull me up, Mr Stringer, if I mentioned other areas, but that is the problem with the title of the Bill: some of the things in here should apply to members of the armed forces if the offence was committed on the UK mainland, but they do not. That is why I come back to the point that it would be better to do these things in the Armed Forces Bill next year and to take a holistic approach. Obviously, there are political reasons why this Bill is being rushed forward, to meet a manifesto 100-day commitment. However, I think some of these things should apply in the UK, but they will not with this Bill, and no doubt they will have to be picked up in the Armed Forces Bill.

The section also applies where

“(b) a determination has been made that an investigation into an offence relating to such conduct should cease under section (Judicial oversight of investigations).

(2) No further investigation into the alleged conduct shall be commenced unless—

(a) compelling new evidence has become available”.

Again, this is about trying to stop that reinvestigation, but having judicial oversight. The judge advocate determines

“the totality of the evidence against the accused”,

and sees whether it is strong enough such that

“there is a real possibility that it would support a conviction.”

Let us go to the Campbell case: if that case came forward again, the judge would have to look at the evidence and see whether the material circumstances had changed since the last time the offence was looked at. The strength of doing it this way, rather than as proposed in this Bill, is that it is not about limitations of time and the presumption against prosecution; a judge will look at the evidence and there will be a process. That would avoid the reinvestigation of such complaints.

If there is compelling new evidence, I think we would all agree—not just in the military justice system, but in a civil case—that we would want it to be looked at again. That links to the time limits on investigations, which for the individual concerned would not then stretch out for an indeterminate length of time.

[Martin Docherty-Hughes]

Regarding proposed new subsection (a) on new evidence, in evidence to the Committee last Thursday, in response to the hon. Member for Wrexham, the judge advocate gave as an example the six Royal Military Police who were sadly killed at Majar al-Kabir in 2003. Would this not allow us parity of esteem in the international judicial system? If new evidence came out in Iraq, we would demand that the Iraqi Government prosecute the individuals responsible for the murder of those six Royal Military Police.

[Mr Jones]

Yes, I remember that case—it was awful, if you read the background to it. The Bill is basically saying, “We are going to do something different from what we expect of other people.” I am sorry, but that is just not acceptable. We have a high standard in this country of judicial law and the rule of law and, as I said earlier, we should be a beacon. We should say, “This is something we are proud of.” Anything that changes that would be detrimental, and not only to the armed forces, for the reasons that have been raised. It is just logic that, if new evidence comes forward in a case, it must be looked at; just to say that the reason it cannot be looked at is that it has gone past a certain time period is wrong. If we dismiss new evidence without looking at it and having any judicial oversight of it, that would be a mistake.

--- Later in debate ---

[Martin Docherty-Hughes]

The right hon. Gentleman gets to a point that many of us find disconcerting, especially when reflecting on the second part of the Bill. The chain of command needs to take responsibility for its decision making. I know this is only a probing amendment, but the Government need to consider the fact that the chain of command has responsibility within the decision-making process.

[Mr Jones]

That is important. It is about taking responsibility of the chain of command. I remember when we first introduced the Service Complaints Commissioner for the Armed Forces, there was a huge fear, as there was when we introduced the armed forces ombudsman, that they would interfere with the chain of command. I do not want for one minute to do that, and neither should a prosecutor, but the actions and freedoms that someone has is a relevant factor that needs to be taken into consideration. As we discussed this morning, these people are in very difficult situations—I am sure that neither you, Mr Stringer, nor I could imagine what it would be like, although I am sure that the Minister can—and that needs to be taken into account.

Having made those comments, I shall leave it there.

National Shipbuilding Strategy

Debate between Lord Beamish and Martin Docherty-Hughes

Wednesday 8th February 2017 Westminster Hall

[Mr Jones]

The hon. Lady makes a very good point. The issue is not just about generating the skills in the first place—the key investment that companies need to make in apprenticeships and other things. This is now an international market. There are perhaps engineers working on the Clyde who, if there is no work, will move elsewhere in the world. In some cases, they will not come back to the industry. We found that with the Astute programme; nuclear engineers left and trying to get them back, or regenerating those skills and expertise, was very difficult.

[Martin Docherty-Hughes]

The hon. Gentleman is making an excellent point. Critically, the Canadian suppliers were actually in Glasgow the other week looking for such people to take to north America.

[Mr Jones]

Again, the hon. Gentleman makes a very good point. This is an international market and these skills are very sought after. This comes back to my point that if we want this capability in the UK, we have to nurture and protect it and the only way to do that is by having a throughput of work.

The hon. Member for Dunfermline and West Fife raised the issue of the Type 26. The delay is adding to that uncertainty. The wider piece really concerns me. To give the impression that we are going to have that drumbeat of work, we have had the Type 31 inserted into the programme. I have studied in detail to try to find out what the Type 31 actually is; no one has been able to tell me yet. It is a bit like the mythical unicorn—everybody thinks it exists, but no one has ever seen one. If the MOD can say that there is a budget line for it, it should please identify that—in the current procurement there is no budget line for it at all in the programme.

Armed Forces Bill

Debate between Lord Beamish and Martin Docherty-Hughes

Wednesday 16th December 2015 Commons Chamber

[Mr Kevan Jones]

I beg to move, That the clause be read a Second time.

New clause 9 attempts—I referred to this in the Select Committee—to remove redundant legislation from the statute book. Sections 146(4) and 147(3) of the Criminal Justice and Public Order Act 1994 contain provisions relating to a homosexual act constituting grounds for discharge from the armed services. The Act repealed a provision relating to male homosexual acts and the armed forces in the Sexual Offences Act 1967.

Clearly, that has been superseded by the fact that homosexuality in itself is not now grounds, thankfully, for being dismissed from the armed services, but the legislation referring to the armed forces remains on the statute book. I am not for one minute suggesting that anyone involved in a homosexual or heterosexual act in the course of their service should not be disciplined or could not be dismissed, but people think that it is discriminatory, and I agree, that the Act refers to homosexual acts, and not heterosexual acts in any way.

That legislation is redundant because we have moved, rightly, to ensure that members of our armed forces are not judged by their sexuality. My aim in the Select Committee and today is to find a mechanism—and I accept what the Minister said about the way forward—to take the provision off the statute book. It clearly discriminates against homosexuality, has no place on the statute book and serves no useful purpose.

[Martin John Docherty]

I associate SNP Members with the comments of the hon. Member for North Durham (Mr Jones) about the redundancy of this provision. On a personal level, I am shocked that it is still there and that homosexual members of the armed forces should be seen differently from heterosexual members of the armed forces who might be having sexual relations. Strangely enough, that seems to be a human element of sexual relations: they happen to people, whether they be homosexual or heterosexual, and no law is going to prohibit that. I want to ensure that the hon. Gentleman recognises that those on the SNP Benches fully support the new clause. We hope that the Minister will again reflect on what has been said and seek a way to take this forward.

Defence Implementation Road Map

Debate between Lord Beamish and Martin Docherty-Hughes

Tuesday 10th November 2015 General Committees

[Mr Jones]

It does. My right hon. Friend and I spent a week in Washington trying to persuade US Congressmen and Senators to make sure that there was nothing wrong in ensuring that technology transfers should be a two-way street. The problem is that although a lot of claims are made about the US defence market being open and transparent, anyone with experience of it knows that protection is clear.

Such protection, however, comes up in Europe. The document talks about overcapacity in the European defence industries, but there is a reason for that: the protectionist policies of certain members, including France, Germany and others. They have not opened up their markets, not only not to US and international competitors, but also not to UK companies. There have been some good examples, as the Minister rightly pointed out, of good defence co-operation and manufacture between European nations and our own, which have been of benefit to not only those nations, but ours.

The objective, according to the document, of

“an Internal Market for Defence where European companies can operate freely and without discrimination in all Member States”,

is frankly pie in the sky. The idea that the French defence market or shipbuilding industry, for example, will be open to competition throughout Europe is unrealistic. A few years ago in Paris, when I was a member of the Defence Committee, I asked the Member for Brest whether she envisaged a French aircraft carrier being built anywhere other than Brest. She looked at me quizzically and said, “I don’t understand the question.”

The Commission is pressing forward in that area, and that has real dangers for our defence industries. It is not, frankly, an area in which the Commission should be getting involved. I fully support, as the Minister does, existing co-operation in the EU for operations that lie outside NATO or involving other countries, but that is where it should stay. If the market comes into our defence industries, that will block off a lot of the opportunities that this country has for co-operation not only with the United States, which is an important market, but with other growing markets around the world. For example, in the south-east Asian market, the easy transfer between civilian technologies and defence ones brings capabilities that could benefit our defence industries. If they are somehow locked out, because our procurement is restricted to Europe, not only will our defence industries suffer, but so could what is on offer to the men and women of our armed forces.

[Martin John Docherty]

Does the hon. Gentleman not agree that in counterbalancing our defence relationship with the United States, we should continue to build relationships with European partners such as the Netherlands? I am sure he agrees that building those relationships can only benefit our security.

[Mr Jones]

I do, but it is naive to think that we are talking only about Europe. Increasingly as the lines between the development of civilian technologies and defence get blurred, defence industries and technologies are a global market. The idea that we can somehow restrict that to within Europe, or give Europe some preference, would be a great disadvantage to our defence industries. As I said, because of the open approach that we took in government, we have benefited from open markets, which have certainly added to investment from overseas into this country, but also to transfers of technologies and expertise, not only ensuring that the kit and capabilities of our armed forces are leading edge, but adding to jobs and prosperity in this country.

My other issue comes under the second point about security of supply. We have already talked about hand grenade shells in connection with security of supply within Europe. I am not quite sure how this would fit in with technology such as the joint strike fighter, which we are involved in developing and building, and which contains both UK and US technology. Perhaps that is a bad example, but there are other technologies. If we have to ensure that technologies are supplied within Europe, that would limit the ability of some of our partners to co-operate with us. I do not think—how can I put it gently?—that the trust we have in the US defence community, for example, is the same as the trust we have when we export technology to France or any of our other European allies. Does security of supply mean that the onus is on us to supply certain technologies if a European country demanded it? That would put real constraints on us.