Armed Forces and Reserve Forces (Compensation Scheme) (Consequential Provisions: Primary Legislation) (Northern Ireland) Order 2013
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Lord Astor of Hever
That the Grand Committee do report to the House that it has considered the Armed Forces and Reserve Forces (Compensation Scheme) (Consequential Provisions: Primary Legislation) (Northern Ireland) Order 2013.
Relevant document: 7th Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con)
My Lords, I greatly welcome the opportunity to open this important debate. I am introducing this legislation specifically for those seriously injured service and ex-service personnel resident in Northern Ireland who are entitled to an Armed Forces independence payment, or AFIP for short. This legislation provides access to additional benefits, schemes and services, known as passported benefits.
Noble Lords will recall that I led a debate on 25 March this year introducing similar legislation for service and ex-service personnel residing in other parts of the United Kingdom. Today’s debate will ensure that AFIP recipients resident in Northern Ireland have similar access to passported benefits.
The changes to be debated are closely linked to the Government’s commitment to uphold the Armed Forces covenant, the key principles of which are to ensure that members of the Armed Forces community are not disadvantaged compared to other citizens in the provision of public and commercial services, and that special consideration should be given, as appropriate, in some cases, especially to those who have given the most—for example, the injured and the bereaved.
The covenant applies to the whole Armed Forces community, comprising service and ex-service personnel and their families wherever they are located, and the Ministry of Defence is keen to see it implemented widely. We recognise that the circumstances for the Armed Forces community in Northern Ireland are different, for reasons that are well understood.
For example, wounded, injured and sick personnel in Northern Ireland benefit from an extra level of support from the Personnel Recovery Unit based in Northern Ireland, and are currently part of a trial under which the Ulster Defence Regiment and the Royal Irish (Home Service) Regiment Aftercare Service provide welfare for them after they are discharged.
We are putting in place support and help for those who have suffered serious injury in the line of duty, and these provisions will further enhance that support. To explain the need for these regulations, it may be helpful if I provide noble Lords with some background.
In July 2012, the Prime Minister announced that the Government would simplify and enhance financial support for members of the Armed Forces who have been seriously injured, as part of the measures to uphold the Armed Forces covenant. My department worked closely with the Department for Work and Pensions to implement AFIP on 8 April 2013 across the UK, at the same time as the personal independence payment was brought in to replace disability living allowance as part of the welfare reform programme. The MoD also introduced a number of consequential amendments to put in place access to additional benefits and services for AFIP recipients in England and Wales. On 11 June 2013, similar legislative provisions were put in place for AFIP recipients resident in Scotland.
While the AFIP payment has been available to seriously injured service and ex-service personnel resident in Northern Ireland, the legislative changes to provide access to passported benefits have not been implemented. This debate will begin this process, with a second legislative amendment to follow in due course.
In order to establish access to two important “passports”, we are required to amend two other parts of primary legislation. That is what we will debate today. These minor but important legislative changes are in respect of, first, carer’s allowance and, secondly, the Christmas bonus.
The legislative change in respect of carer’s allowance will ensure that those who provide invaluable support to seriously injured members of the Armed Forces in receipt of AFIP have access to carer’s allowance in Northern Ireland from the Department for Social Development. Carer’s allowance is currently £59.75 per week. This change will make provision specifically for those who devote their lives to support our seriously injured people, providing some financial support for doing so. It is only right that a person caring for an AFIP recipient should have access to the carer’s allowance.
The provisions relating to the Christmas bonus will ensure that all recipients of AFIP automatically qualify for the tax-free, lump-sum Christmas bonus of £10, which is paid annually in Northern Ireland by the Department for Social Development.
By putting in place the provisions to enable AFIP recipients resident in Northern Ireland to access the additional benefits, schemes and services offered by other government departments, devolved Administrations and local authorities, the Government are giving them equal treatment to that offered to service personnel and veterans resident elsewhere in the UK. This is another example of the Government’s commitment to uphold the Armed Forces covenant.
It is important that we address these issues in order to meet the principles at the heart of the covenant across all Administrations for members of the Armed Forces and veterans who are seriously injured. I commend the order to the Committee and I beg to move.
Viscount Brookeborough (CB)
My Lords, I welcome the order. It is a very worthy measure. Everyone in Northern Ireland is delighted that it is extending to Northern Ireland. I was not present when this was debated for the remainder of the United Kingdom. When the Armed Forces covenant first appeared, it was very welcome, but there was perhaps a little doubt about how it would benefit people and how it might be implemented, especially in Northern Ireland. The covenant was a stepping stone—or a foundation stone—for extending other things and showing better care support for all our soldiers, especially those who have been injured.
One could go into how difficult it was in Northern Ireland, but it is better to look at it the other way: thank goodness it has become slightly easier to introduce this in Northern Ireland. We know that there were issues with talking to the Northern Ireland Assembly, and it is most welcome that the talks went well and that we are now getting to the stage where we are able to give our soldiers, and especially our veterans, support that is equal to what they have here.
I was interested to hear the Minister refer to the aftercare service as being a “trial”. That was the first time that I had heard it talked about like that. I hope that he thinks that it is being tried because certain aspects might be very beneficial in the remainder of the United Kingdom.
Overall, this is a most welcome measure. We should not highlight the problems and how difficult the process was, but should welcome it as a great step forward.
Lord Astor of Hever
My Lords, first, I thank the noble Viscount, Lord Brookeborough, for his support. I was heartened by what he said about the very positive changes in Northern Ireland. Secondly, I thank the noble Lord, Lord Rosser, for mentioning the Opposition’s support for this order.
The noble Lord asked some questions and I hope that I am able to answer them. First, he asked how numerous or few are the relevant Northern Ireland Ministers whose consent has to be sought and given. The answer is five, plus the Minister of State for Northern Ireland. The noble Lord asked whether the costs will be borne by UK taxpayers as a whole. The answer is yes, it will. He asked how many seriously injured service or ex-service personnel will be covered by this order relating to Northern Ireland. The answer is fewer than 20.
The title of the order refers to the Armed Forces and Reserve Forces. The noble Lord said that it would be helpful if I could confirm—I wrote this down—that there is parity of treatment under the terms of the order between the two forces. The answer is yes.
In summary, I will restate a point I made when I opened this debate. The changes debated today are closely linked to the Government’s commitment to uphold the Armed Forces covenant. It is only right that we provide access to additional benefits, schemes and services for the most seriously injured, wherever they are resident in the United Kingdom. I believe that these changes will go some way to achieve this.
Ministry of Defence: Dogs
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Baroness Oppenheim-Barnes
To ask Her Majesty’s Government what steps are taken by the Ministry of Defence to retrain and rehome dogs when their period of duty in the military at home or abroad is complete; and what proportion of those dogs are returned to the United Kingdom.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con)
My Lords, military working dogs and their handlers provide a valuable range of specialist roles worldwide. The dogs’ welfare is a primary consideration during and after their service. The MoD rehomes all suitable dogs, often with someone closely involved when the dog was serving and with families who are carefully vetted. There are no time restrictions on a dog being kept while a suitable home is looked for. The majority of dogs serving overseas are re-homed in the United Kingdom.
Baroness Oppenheim-Barnes (Con)
I thank the Minister for that reply. Is he aware that I am extremely pleased with it, as will be the highly regarded Dogs Trust? These dogs have served their country very well at the side of the brave soldiers, whose lives they often save, and it is good to hear that the Army is treating them humanely on retirement.
Lord Astor of Hever
My Lords, I am delighted that my noble friend is pleased with my Answer. I join her in paying tribute to the wonderful work done by the Dogs Trust. All personnel from the military working-dog community do everything that they possibly can to rehome all suitable dogs at the end of their service life. Many dogs, understandably, are adopted by their handlers. We have rehomed around 360 dogs during the past three years and currently have 150 people waiting to offer a home to a suitable dog.
Lord Tomlinson (Lab)
When the Minister has solved the problem of dogs, will he turn his undoubted abilities to solving the problem of the £2 billion cash surplus that the Ministry of Defence has apparently been unable to spend, as was reported in the Sunday Times yesterday, to the detriment of major missions in the Middle East, where we have significant defence interests?
Lord Astor of Hever
My Lords, I am sorry to disappoint the noble Lord but this Question is specifically on dogs. He can table a Question on the issue that he has raised at some other point.
Lord Trefgarne (Con)
My Lords, is my noble friend aware that I have had the privilege of owning two dogs that were retired from military service, which of course I purchased from the Ministry of Defence, and that both were beautifully looked after and were quite excellent?
Lord Astor of Hever
My Lords, I am really pleased to hear what my noble friend says. There is great interest in this issue, particularly in the different types of military working dogs. I have asked my department to put in the Library a list of all the different types of specialist and protection dogs, as well as the reasons why a small number of working dogs were killed during the past three years—I think that it was two this year, one the year before and one the year before that—along with information on the number of dogs that were put to sleep and the reasons for that.
Lord Harris of Haringey (Lab)
My Lords, I accept that this Question is primarily about the rehoming of military dogs, but is there not also a problem with the substantial number of ex-servicemen who end up sleeping on our streets because they are not afforded the proper moves into civilian life? I would be grateful, if he cannot do so today, if the Minister could perhaps report to the House at some future stage on the steps being taken to ensure that ex-service personnel are treated appropriately by this society?
Lord Astor of Hever
My Lords, I am very happy to do that at a future point in a defence debate, but this is a good-news story about what we are doing for military dogs. I am very unhappy to see us going off-piste.
Baroness Doocey (LD)
My Lords, will the Government examine the enactment of “Robbie’s law” in the United States, which has led to a huge reduction in the number of retired dogs that have to be put to sleep, with a view to introducing a similar system in this country?
Lord Astor of Hever
My Lords, I am very happy to look at that. The situation in this country is that the decision to put a dog to sleep is taken by a veterinary officer and only after all possible avenues have been exhausted. From 2010 to June 2013, sadly, 300 dogs had to be put down, and the reasons for this included injury, illness and age-related welfare reasons. As I have said, those cases were looked at by veterinary officers and the decision was taken only as a last resort.
Lord West of Spithead (Lab)
My Lords, does the Minister agree that we have a good track record in this country of looking after animals within the military? I am sure he will be interested to hear that when we did Options for Change at the beginning of the 1990s, our one study into animals within the forces, known colloquially as the Winalot study, discovered, to the surprise of the Navy, that Army and Air Force dogs had a higher per diem rate for food than officers and men within the Royal Navy.
Lord Astor of Hever
My Lords, that is a very interesting question and I will consider it closely.
Lord Brooke of Sutton Mandeville (Con)
My Lords, if I may shift the emphasis from the Government to dogs, is my noble friend aware that Greek vases demonstrate a considerable use of dogs two-and-a-half millennia ago? That tradition has been maintained for a very long time—to the enormous credit of the dogs.
Lord Rosser (Lab)
My Lords, last week it was government policy being thwarted by badgers moving the goalposts; this week it is defunct, deceased dogs causing headaches. Presumably the Minister can give an assurance that no decisions to put down dogs are made on financial grounds, bearing in mind the recent disclosures about the hundreds of thousands of pounds being consumed within the Ministry of Defence on calls to 118 numbers at a time when money is in short supply. Will the Minister also clarify what percentage of military working dogs are put down before they are retired, and what percentage are retrained or re-homed on retirement?
Lord Astor of Hever
My Lords, I can give the noble Lord the commitment that no dogs are put down for financial reasons. The vast majority of dogs had to be put down as the animals’ condition impeded and reduced their quality of life. As noble Lords may know from sad personal experience, everyone will at times have to put animals to sleep when it is the only option. The death or destruction of a military working dog is subject to formal investigation and report, as required. Dogs are not usually retrained during their military service. The role that a dog undertakes is normally one which the dog has a natural inclination to perform as a result of breed characteristics and behavioural traits.
Lord Elton (Con)
My Lords, there are occasions when it is impossible to find a successor owner for the dog. Would my noble friend bear in mind the work of the Cinnamon Trust, which has a fascinating remit of supplying bereaved people with dogs which have also been bereaved, and homing other difficult cases in a way which promotes the happiness of both the animal and the human?
Lord Astor of Hever
My Lords, my noble friend makes a very good point. I will certainly study carefully the excellent work of the Cinnamon Trust.
Armed Forces Act (Continuation) Order 2013
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Lord Astor of Hever
That the draft order laid before the House on 2 July be approved.Relevant document: 7th Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)
The two instruments for our consideration today are the Armed Forces Act (Continuation) Order 2013 and the Armed Forces (Alcohol Limits for Prescribed Safety-Critical Duties) Regulations 2013. As is customary, I should like to say a few words in support of each of them, starting with the continuation order.
The purpose of this order is to continue in force the legislation governing the Armed Forces for a further period of one year until the end of 2 November 2014. Though a small item of business, this order is crucial to ensuring that the Armed Forces Act 2006 remains in force. As noble Lords will know, the Armed Forces Act 2006 provides for the disciplinary system of the Armed Forces wherever in the world they are serving. The Act contains many important provisions, but perhaps the most important ones are the duty to obey lawful commands and the mechanism for enforcing that duty. Without those provisions, the Armed Forces would be unable to continue as a disciplined force, and the practical effect of not continuing the Act would be that the Armed Forces, as we know and admire them, would cease to exist.
The legislation governing the Armed Forces has to be renewed by Parliament every year. There is an Armed Forces Act every five years. In between, there is an annual renewal by Order in Council, the draft of which is before this House for approval. It reflects the constitutional requirement under the Bill of Rights that the Armed Forces may not be maintained except with the consent of Parliament.
The most recent Act is the 2011 Act, which amended the 2006 Act and continued it in force on the basis I have already briefly described. Our aim was to implement the largest part of the 2011 Act by the spring of this year. We have done that. Work to complete implementation of that Act continues and work on the next has begun. We propose to introduce the next Armed Forces Bill in 2015, in time for it to complete its parliamentary stages and receive Royal Assent before extension of the 2006 Act given in 2011 expires. It is too early to say anything about the scope of that Bill.
I now turn to the new alcohol regulations. Currently, under the Armed Forces Act 2006, an offence is committed if a person subject to service law is, due to the influence of alcohol or drugs, unfit to be entrusted with any duty they may reasonably be called on to perform or their behaviour is disorderly or likely to bring discredit to Her Majesty’s forces. Tests for alcohol and drugs can be administered only after a serious incident. There is, however, no power to test an individual in the services before an incident where it is suspected that he or she may be under the influence of drugs or alcohol. Our aim is to provide commanding officers greater powers to deal with unfitness for duty through alcohol or drugs by allowing them to take action early, before an incident occurs.
The Armed Forces Act 2011 provides for the testing of persons subject to service law where they are suspected either of being over a set alcohol limit or of being unfit through drink or drugs to carry out any safety-critical duty. It created a framework for doing this based broadly on the provisions in the Railways and Transport Safety Act 2003. That Act provides an alcohol and drug testing regime in the civilian professional shipping and aviation environments. The services, however, are exempt from the provisions of that regime. We are not removing the current exemption from the 2003 Act. Instead we are introducing a bespoke scheme for the services. This is a further step to ensure that personnel conducting safety-critical activities are not impaired by alcohol or drugs. This will run alongside the compulsory drug testing programme.
The 2011 Act amends the 2006 Act to create a new offence with regard to the amount of alcohol a person subject to service law can have in their breath, blood or urine in relation to prescribed safety-critical duties. The regulations we are considering today prescribe those safety-critical duties to which a specific alcohol limit is to apply, and the related alcohol limits for breath, blood or urine. To be specified as a duty to which a particular limit will apply, a duty must be such that performing it while impaired by alcohol or drugs will result in a risk of death, serious injury or serious damage to property, or serious environmental harm.
The regulations set out two levels of alcohol for the testing of breath, blood or urine in relation to prescribed safety-critical duties. The majority of safety-critical duties fall into the higher alcohol levels. These mirror the alcohol limits for drink-driving in criminal law under the Road Traffic Act 1988. That is a recognised and easily understood benchmark. Lower alcohol levels are set for those duties that require a heightened speed of reaction in an emergency situation, such as aviation or carrying a loaded weapon. Such duties demand that personnel should have no ingested alcohol in their body on commencement of the duty. This recognises that even small amounts of alcohol in a person’s system can have a detrimental effect on his ability to perform such duties. However, I should say that a small tolerance level is allowed because in some people small amounts of alcohol occur naturally in their body.
There are no accepted limits for the presence of illegal drugs. Under the 2006 Act, as amended by the 2011 Act, a commanding officer will be empowered to require a person who is subject to service law to co-operate with preliminary testing when he has reasonable cause to believe that that person’s ability to carry out any safety-critical duty is impaired through alcohol or drugs or that the person is over the prescribed limit for the particular safety-critical duties prescribed in these regulations.
In summary, these regulations implement the scheme agreed by Parliament in the 2011 Act so that all concerned can be confident that those performing safety-critical duties are not doing so with any impairment through alcohol or drugs.
Lord Astor of Hever
My Lords, I am very grateful to both noble Lords for the support they gave to the instruments that we have considered today. I particularly appreciate the welcome given by the noble Lord, Lord Tunnicliffe. He and I have discussed this issue in some detail in the past and I very much respect his views. He speaks with great authority on the matter. I share his views on alcohol.
The noble Lord said that it is difficult to change attitudes on alcohol. It is my experience as a defence Minister that there really has been a cultural change within the Armed Forces. Members of the Armed Forces no longer have an expectation that drink is appropriate. The Armed Forces have consistently taken a very strict view on drugs.
As a defence Minister, I manage to get around quite a lot and find that you hardly ever get served alcohol at lunchtime in messes. I cannot remember when I was last served alcohol in a mess. A couple of months ago, I visited a brigade of guards at Richmond and the lunch was totally alcohol-free. That would not have happened 10 years ago. This is certainly the case at a lot of other Royal Air Force and Navy messes. The noble Lord asked whether this issue would be handled sensitively. I discussed that with officials before the debate and I assure him that it will be handled very sensitively.
I also very much welcome the support given by the noble Lord, Lord Rosser. I echo the noble Lord’s support for, and appreciation of, what the Armed Forces do for us all. The noble Lord asked about the basis of the testing and whether it would be done by breathalyser or the taking of urine samples. He will have noted that I touched on this subject in my opening speech. The likelihood is that in most cases the sample will be of breath, as in the civilian system, but blood or urine may also be required if necessary. Preliminary tests could be by breath under Section 93B, preliminary impairment test under Section 93C or a preliminary drug test under Section 93D. However, the commanding officer will, of course, have had to make a judgment to refer an individual for testing, and the service police will decide which test to conduct.
The noble Lord asked why there were two categories; why not use just category 2—the stricter one? As I explained in my opening remarks, the lower limit is set for those duties that demand heightened reactions, such as when piloting an aircraft or duties that are particularly hazardous if performed while impaired, such as having a firearm and ammunition or dealing with explosives. The higher limit is the limit set in civilian law for drink-driving and is therefore appropriate to activities that can be carried out safely after consumption of a small amount of alcohol.
I should also say that we considered it important to provide a balance. On the one hand, we want to allow members of the Armed Forces to relax, with access to alcohol in moderation, when operational demands allow. On the other hand, we must ensure safety in operational effectiveness. Too stringent a regime would be unjustifiably oppressive. We have therefore only where necessary imposed a limit that amounts to a complete ban for duties.
The noble Lord asked what the criteria were for categories 1 and 2. I touched on this in my opening remarks but, for amplification, I should point out that the higher limit is itself a low limit—the one set for drink-driving. The lower limit amounts, in effect, to a total ban on alcohol. We do not wish to impose a total ban unless it is demanded by the nature of the activity. However, we are not saying that it is always right for personnel to conduct duties subject to the higher limit when they are only just under that limit. If there is any evidence to suggest that personnel are impaired, a commanding officer can take action under existing provisions relating to unfitness for duty.
The noble Lord pointed out that divers come under category 1, while diving supervisors are also category 1. He asked why they are not category 2. I emphasise that even the higher limit is not a licence to abuse alcohol. On the specific point of divers and their supervisors, we have consulted the services carefully about which duties should be subject to which limit. Our judgment is that while both activities are safety critical, they do not fall into the narrow category of activities for which the lower limit is considered to be necessary. We do not see any need to treat a supervisor more stringently than the divers.
The noble Lord also touched on the point that the noble Lord, Lord Tunnicliffe, made about changing attitudes. Members of the Armed Forces can be considered to be on duty all the time, and it was therefore essential to provide a balance between allowing members of the Armed Forces of all ranks to have some relaxation, subject to the needs of operational effectiveness and especially of safety. The approach adopted was therefore to focus on duties that are safety critical. Unfitness or misconduct through use of alcohol or drugs remains an offence under Section 20(1) of the Armed Forces Act and covers instances in which service personnel are unable to carry out their duty, or their behaviour is disorderly or likely to bring discredit on Her Majesty’s forces. However, we do not want to introduce a regime that is oppressive or any more limiting than operational demands require.
We feel that there is evidence of a considerable change. It may be the case that there was a drinking culture in the past but my experience of the past few years strongly suggests that that is not the case now. These regulations seek to reinforce this change by creating a more professional and responsible approach to alcohol.
The noble Lord, Lord Rosser, mentioned the shooting incident on HMS “Astute”. The service inquiry found that nothing about Able Seaman Donovan, as witnessed by the duty personnel on board HMS “Astute”, had provided just cause for doubting his fitness to stand duty. I would not wish to speculate about whether the circumstances of this tragic case would or could have been different. In future, there will be a power to test individuals where there is reasonable cause to believe that a service person is unfit through alcohol or drugs, or has exceeded the prescribed alcohol limits for safety critical duties. A second-hand report that the offender had been seen drinking alcohol at a particular time may give reasonable cause for holding that belief.
The noble Lord asked whether testing will be random under the power. The answer is no. The power to test arises when there is some reasonable ground to believe that the person is in breach of the limit or is otherwise unfit for duty. This follows the civilian powers to test. I will study carefully what both noble Lords said, and if there is anything to add to what I have said, I will write to both noble Lords.
Armed Forces (Alcohol Limits for Prescribed Safety-Critical Duties) Regulations 2013
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Lord Astor of Hever
That the draft regulations laid before the House on 1 July be approved.
Relevant document: 8th Report from the Joint Committee on Statutory Instruments.
Armed Forces: Pension Scheme
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Lord Touhig
To ask Her Majesty’s Government how many soldiers made redundant since the Strategic Defence Review have reached full pension age.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)
My Lords, no soldiers fall into this category as full pension rights are granted only at the completion of a full military career. Personnel within the last three years of their engagement were ineligible for consideration under the redundancy scheme. The redundancy scheme that we have implemented is designed to ensure that all those made redundant leave by 31 March 2015, and personnel requiring full pension rights by that date would therefore normally leave anyway.
Lord Touhig
My Lords, following our last exchange on this matter on 20 June, I received an e-mail from a 35 year-old soldier who joined the Army as a boy of 16. He served in Northern Ireland, Sierra Leone, Iraq and Afghanistan and was told that he had a future in the Army. Indeed, two months ago, he was promoted to WO2.
While he was convalescing following surgery, his wife attended an army wives’ event to discover by chance that he was to be made redundant; he had not been told. Further inquiries revealed that he was to be made redundant 24 days before he qualifies for full pension. He is set to lose £10,000 a year in pension. I am sure that the whole House will join me in wishing him well in his appeal against redundancy.
Lord Touhig
When he returns to his department this afternoon, will the Minister review the redundancy package and, if necessary, come back to the House and reassure us before we break next week that no soldier who is prepared to put his life on the line in defence of our country will be made redundant in this cheapskate sort of way in order that the Treasury can save what amounts to no more than a few bob in petty cash?
Lord Astor of Hever
My Lords, I am sorry to disappoint the noble Lord, but we have no plans to review this. When selecting personnel of the Armed Forces for compulsory redundancy, no consideration was given to the proximity of the immediate pension point. I can tell the noble Lord that only 1.2% of those made redundant are close to their immediate pension point. As we reduce the size of the Armed Forces, our priority is to ensure that the services maintain the correct balance of those skills and experience across rank structures that are required to deliver operational capability now and in the future. That is what has determined our redundancy criteria.
Lord Ribeiro
My Lords, what support will be made available for members leaving the Armed Forces, in particular for those members who are in danger of committing suicide?
Lord Astor of Hever
My Lords, my noble friend asks a very important question. The majority of service personnel make a successful transition to civilian life. All service leavers are entitled to some form of resettlement assistance. The Career Transition Partnership has proved successful in assisting service leavers to find work and a recent defence statistics survey shows that of the service leavers in 2011-12 who have a known employment outcome, around 85% are employed within six months of leaving the Armed Forces. Our resettlement arrangements are kept constantly under review to ensure the needs of service leavers are met.
Lord Hughes of Woodside
My Lords, did I hear the Minister correctly? Did he really say that, in making people redundant, no account was taken of the proximity of the retirement date and that only 1% were so affected? How can he have the bare face to come to this House and make a statement like that?
Lord Astor of Hever
My Lords, I did say that only 1.2% are affected. The redundancy schemes recognise those who miss out on immediate incomes by paying them significant enhanced tax-free redundancy compensation lump sums. Those who leave before the qualification point will get preserved pensions and further tax-free lump sums at the age of 60 or 65, depending on the pension scheme they are in. Armed Forces pensions remain among the most generous in the public or private sector. We recognise the unique role and sacrifice of the military, which is why the Armed Forces continue to benefit from non-contributory pension schemes.
Lord Palmer of Childs Hill
My Lords, what impact does the Minister consider has been made to Army morale since the announcement of the third round of redundancies on 18 June this year? What conclusions about morale does my noble friend the Minister draw from the increased proportion of voluntary redundancies in the recent tranche of Army redundancies, up, reportedly, from 72% to 84%?
Lord Astor of Hever
My Lords, there is no evidence that morale in the Armed Forces has been adversely affected by the redundancy programme. The number of applications for redundancy is not an indicator of the state of morale because the Army has deliberately set out to maximise applications. Recruiting for the Armed Forces remains buoyant.
Lord Elystan-Morgan
My Lords, it is the Minister’s case that no cognisance is taken of the proximity of a decision in relation to redundancy and a pension date. How does it come about that the Ministry is able with such precision to say exactly what proportion is applicable in this case?
Lord Astor of Hever
My Lords, because of the complexity of pensions calculations, establishing the exact number of Army personnel who fall into this category would require manual analysis of the records of those selected for redundancy. This could be undertaken only at disproportionate cost. However, to ensure the redundancy programme is fair, selection criteria have been published by each service and, while rank and seniority are reflected in selection criteria, length of reckonable service is not. This means that individuals might be made redundant either just before or just after the length of service at which they qualify for an immediate pension. Redundancy criteria are based on the future needs of the Army. Exempting personnel because of proximity to pension point would be contrary to this principle and would mean selecting others instead.
Lord Grocott
My Lords, the mood of the House in response to the Minister’s answers is one of considerable concern. It is no answer to the serious example spelt out in detail by my noble friend Lord Touhig, which seems to show a grave injustice, to say that this grave injustice applies to only 1.2% of the people affected. It is a grave injustice to them and, at the very least, I would appeal to the Minister—who listens carefully to what is said by the House—to go back to the department and say that there has been a very unhappy response to the answers he has given today.
Lord Astor of Hever
I will take on board what the noble Lord says. I cannot make any promises, as we have spent a lot of time considering this scheme and it has been very carefully thought out.
Afghanistan
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Lord Clark of Windermere
To ask Her Majesty’s Government what plans they have for British troops in Afghanistan after 2014.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)
My Lords, as part of the United Kingdom’s commitment to the Afghan National Army Officer Academy, the UK will initially contribute around 90 of the 120 mentors. This will diminish over time as the Afghans increasingly work independently. In addition, we will retain sufficient force numbers to ensure that we properly protect our adviser footprint after 2014. Until NATO planning has matured, it is premature to speculate what other residual military presence the UK will have after 2014.
Lord Clark of Windermere
I thank the Minister for that Answer. Although I fully support the withdrawal of combat troops after 2014, I can understand the Government’s reluctance to be absolutely precise about the numbers remaining thereafter. However, does he accept that the new, large Afghan army will still be short of a number of military facilities, such as close air support, fuel and food delivery, and medevac? If we are to ensure that the sacrifices of our soldiers are not in vain, will the Government ensure that we help the new Afghan army in those areas in which it is short?
Lord Astor of Hever
My Lords, I am very grateful to the noble Lord for his support for our moves post-2014. We are fully aware of the issue of enabling support to the ANSF. Last year, this priority switched from growing the forces to professionalising and developing their ability to support themselves post-2014 as ISAF draws down. In addition to taking the coalition lead in supporting the officer academy, the UK will maintain its current development assistance of £178 million a year until 2017, and we will also contribute £70 million a year until at least 2017 towards sustaining the ANSF.
Lord Lee of Trafford
In terms of medical support, following on from the noble Lord’s question, are there any plans to leave any specialist medical equipment in theatre in Afghanistan, and are there any plans for our medical personnel—those with particular specialisms—to stay there to work alongside the Afghan medics?
Lord Astor of Hever
My Lords, leaving medical equipment in Afghanistan is being discussed at the moment and no decision has been taken on that. By the end of 2013, the ANSF are due to have developed sufficient medical capabilities to take over responsibility for dealing with their own casualties with non-life-threatening injuries, known as category B casualties. By the end of 2014 they will take over responsibility for all their casualties, including the most serious types of injuries. ISAF continues to monitor ANSF progress towards an independent medical capability, and the UK is supporting it to deliver surgical capability in Helmand through the provision of medical advisors to Afghan medical personnel.
Baroness Coussins
My Lords, will the Minister update the House on what plans there are for the locally employed interpreters, who are likely to be in greater danger following the withdrawal of British troops, particularly the interpreters who are based in Kabul and elsewhere who I understand are not currently eligible to apply for the resettlement package that is being offered by Her Majesty’s Government?
Lord Astor of Hever
My Lords, we want to support those local staff who will be made redundant so that they can go on contributing to a brighter future for them and their country. This support is based on a generous in-country package of training and financial support, available for all staff, or a financial severance payment. For those who are eligible—patrol interpreter Foreign Office equivalent staff—there is the opportunity to apply for relocation to the UK.
This is a redundancy scheme and is not to be confused with our existing provisions for staff safety and protection. Any staff member who is threatened and at genuine risk due to their employment with us will be supported. In extreme cases, via our intimidation policy, it may be appropriate to consider relocation to the United Kingdom.
Lord Selkirk of Douglas
My Lords, will the Minister say whether military equipment, including vehicles and containers that are needed in Europe, are being satisfactorily withdrawn and that the plans are proceeding as intended?
Lord Astor of Hever
My Lords, as I understand it, the redeployment is progressing well. As of 30 June, we have redeployed 797 vehicles and pieces of major equipment, and 1,234 20-foot containers’ worth of materiel from Afghanistan.
Baroness Farrington of Ribbleton
My Lords, I declare an interest: a close member of my family will be in Afghanistan until the withdrawal in 2014. Will the Minister give an assurance that the protection equipment that is available to protect our troops will be absolutely up to standard and adequate to protect them during what may be a difficult change period?
Lord Astor of Hever
My Lords, I can assure the noble Baroness on that point. While we remain part of the ISAF combat mission in Afghanistan, UK forces will continue to maintain the military means and legal authority to defend themselves in the event of an attack. We will retain sufficient force numbers to ensure that we can properly protect our adviser footprint up until 2014 and afterwards. We will also ensure that we have sufficient access to enable this, such as medical facilities and support helicopters. I assure the noble Baroness that the answer is yes.
Lord Ramsbotham
My Lords, anyone who has had the privilege of visiting our troops in Helmand will have realised the great appreciation shown by the Afghan army for the British troops and the way that they are being trained. Currently, a Select Committee in this House is examining soft power, and soft power includes the military influence in training and spreading the British influence into other countries. I know that we are talking about the officers’ training academy, but are there intentions to carry on lower-level training, which does so much to increase our influence in Afghanistan after we have left?
Lord Astor of Hever
My Lords, the noble Lord is quite right about how much the ANSF appreciate the work we are doing to mentor them. I saw that for myself when I was last in Afghanistan and talked to a number of Afghans who are hugely appreciative of what we are doing. As the Prime Minister has said, the UK has played a very big part in the ISAF military campaign but we have also paid a very high price. It is therefore right to focus on the officer academy, which is the one thing we have been asked to do by the Afghans, rather than looking for ways to go beyond that.
Territorial Army
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Baroness Seccombe
To ask Her Majesty’s Government, in the light of the planned expansion and reorganisation of the Territorial Army, whether they have plans to close any Territorial Army Centres.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)
My Lords, my noble friend will recall the Statement I made on 3 July, which stated that to maximise the potential for future recruitment, the Army will rationalise its presence by merging small, poorly recruited sub-units into larger sites, frequently in the same conurbation or in neighbouring communities. The overall number of Army Reserve bases will reduce from the current total of 334 to 308, a net reduction of 26 sites.
Baroness Seccombe
My Lords, the cadet movement, which one could say is the corn seed of our services, offers an exciting taste of service life and often provides a discipline that has not been part of young people’s lives. There are many alternative attractions on their doorstep. Does the Minister agree that it is vital that the cadet detachments are situated locally? Many of those detachments at present are situated within the existing territorial centres. Given the recently announced closure of some TA centres, can the Minister confirm that there will be no loss of cadet locations in the short and long term?
Lord Astor of Hever
My Lords, I agree with my noble friend. Defence has well established, challenging and vibrant cadet programmes with very high reputations, which will continue to be fully supported. Cadet units provide an important link with local communities. Where cadets are co-located on a site for which there is no longer a defence requirement, I can confirm that we will pursue reprovision of the facilities for the cadets to ensure that a local cadet presence is maintained.
Lord Rosser
My Lords, on two occasions recently the Minister has declined to give an undertaking that the size of the regular Army will not be reduced to 82,000, as intended, unless the size of the trained Army Reserve has been increased to 30,000, as intended. Since it would be a serious failure of government responsibility if the implications of this possibility had not been considered, will he spell out what the impact would be on the capability of our Army if the size of the regular Army were reduced to 82,000 but the size of the trained Army Reserve had increased to only 25,000 or even fewer, not to the 30,000 intended?
Lord Astor of Hever
My Lords, we intend to maintain an appropriate force level to meet our planning assumptions. We will continue closely to manage the growth in the reserves and the reduction in regular numbers. These numbers will be kept under continuous review as we move beyond the end of operations in Afghanistan. Mitigation strategies are in place to ensure that we can take early action to maintain an appropriate force level. These include innovative recruiting campaigns and measures to improve retention.
Lord Rogan
My Lords, if any TA centres currently owned and administered by regional RFCAs are closed and subsequently sold, can the Minister assure us that the proceeds of these sales will be retained by the local RFCAs, thus enabling them to improve their remaining stock?
Lord Astor of Hever
My Lords, 38 sites are no longer required for defence forces, of which 35 have been vacated by the Army. This does not necessarily assume that every surplus site will eventually become a disposal. The future of each vacated site will be taken forward on a value-for-money basis in consultation with the interests of the local communities involved. If the site is owned by the MoD, once vacated it will be handed over to the Defence Infrastructure Organisation and offered to other government departments. If no other use is found, it will be disposed of.
Lord Addington
My Lords, will the Minister give us a little more information about the nature of the local centres of recruitment for this new territorial reserve? Unless you can get to them easily, the idea that people will become a part of it voluntarily will be damaged.
Lord Astor of Hever
My noble friend makes a good point. Working with local communities is vital. We are very grateful for the support that reservists and, indeed, regulars receive from their local communities, and we hope that this will continue. While we are vacating a small number of sites, we will retain more than 300 locations across the UK where individuals can undertake service in the Army Reserve.
Lord Foulkes of Cumnock
My Lords, I declare an interest as a former member of the Territorial Army. I know that that surprises some people opposite. I may be a bit simple, but could the Minister explain the logic, when the Government are seeking to increase the number of members of the Territorial Army, of closing TA centres?
Lord Astor of Hever
My Lords, I am not at all surprised that the noble Lord was in the Territorial Army. He has that military demeanour, and cut a fine dash when he came into the Ministry of Defence the other day. We need to expand the Army Reserve to reflect the future liability of 30,000 trained reservists. To deliver that, the supporting structure needs to be changed. We are confident that the Army Reserve will continue to demonstrate its ability to adapt to new requirements.
Lord Brooke of Sutton Mandeville
My Lords, how many of the 35 sites that will no longer be used are in Scotland?
Lord Astor of Hever
My Lords, there are seven sites in Scotland where there is no longer a requirement for Army Reserve basing as a result of structural change. These are Wick, Bothwell House in Dunfermline, Sandbank, Keith, Kirkcaldy, Carmunnock Road in Glasgow and McDonald Road in Edinburgh. One site, Redford cavalry barracks in Edinburgh, will be reopened.
Lord Clark of Windermere
My Lords, how are the Government to expand the provision of officer training courses in groups of universities?
Lord Astor of Hever
My Lords, I am not briefed on officers at universities but I think that the answer is yes; we want to continue that and grow it because it is an important source of officers for the reserves.
Armed Forces (Retrial for Serious Offences) Order 2013
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Lord Astor of Hever
That the draft orders laid before the House on 17 June be approved.
Relevant document: 6th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 8 July.
Energy Bill
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Lord Grantchester
The Government are not providing any further information other than that further work is under way to update the initial value-for-money analysis undertaken last year and that Defence Ministers will be asked to decide whether to invite bids for the GPSS on the basis of that work. I welcome the presence of the Defence Minister to provide clarity to the Committee.
Given that this Bill will have completed its passage through Parliament by that stage, will the Minister tell the Committee today by what means Parliament will be able to assess the analysis and ask for certainties beyond the bland assurances already provided by the Minister of State in the other place, Mr Greg Barker, to my honourable friend Luciana Berger? It is recognised that a sale contract would be a private matter and not wholly for Parliament. No doubt the Public Accounts Committee may also scrutinise any sale. However, nothing in the clause deals with the contractual nature or goes beyond any theoretical possibility. Will the Government explain why they want to sell and whether they may limit the sale or lease to the use of the pipeline and retain the fabric or even vice versa? Any transfer would want to pass over as many liabilities as possible while retaining as many benefits. Is there any comfort in Clause 113 providing that it must be for valuable consideration? I presume that the Minister can qualify this as positive valuable consideration and will exclude negative valuable consideration—that is, someone is paid to take it away or it is part of a larger transaction as an uncosted supplement. Will the Minister also clarify what conditions the Government consider appropriate when asking this Committee to acquiesce to this power?
Finally, the Minister might be tempted to say that the Government do not yet know all the appropriate conditionality pertaining to any transfer. Will the noble Lord look at the suggestion by my noble friend Lord O’Neill and come forward with an amendment to bring regulation to the situation or to introduce any sale or transfer to Parliament when there is clarity around the circumstances which the Minister is happy to explain and promote when the time comes?
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)
My Lords, to date the clauses that are included within this Bill to enable the sale of the Government pipeline and storage system have received relatively little attention. Indeed, they were barely mentioned on Second Reading. This is why I welcome the clause stand part debate tabled by the noble Viscount, Lord Hanworth, as it provides an opportunity for us properly to scrutinise the proposals.
Clause 113 is crucial because it allows for the sale or lease of the GPSS or a part of it. At the current time, the rights to operate and maintain the GPSS and to access land for this purpose are personal to the Secretary of State for Defence. This clause allows the Secretary of State for Defence to transfer these rights, thereby enabling the system to be sold or leased. A decision on sale or lease will be made once further analysis has been undertaken and we have engaged with the market. The clause also allows the transfer of liabilities.
Having explained the intent of this clause, I would like to address a number of concerns that were raised in the other place relating to the sale of the GPSS so that I may demonstrate what progress has been made in these matters.
First, the strategic importance of the GPSS was raised, including the need for it to provide assured fuel supply to certain sites. Through the work conducted to date, we are confident that we will be able to put a contract in place to meet the continuing requirements of the Ministry of Defence and the United States visiting forces, which will offer the appropriate level of protection, including priority access when necessary. Similarly, the potential impact of sale on commercial customers has been raised. The Department of Energy and Climate Change and the Department for Transport have jointly reviewed the implications of a sale of the GPSS on the market, including access and charging, and concluded that while it transports a significant proportion of fuel to the major airports, existing regulatory provisions, particularly the Pipe-Lines Act 1962, are sufficient and no further regulation is required.
On physical security, I reassure noble Lords that we do not believe that the sale will make the GPSS any more vulnerable to terrorist attack than other equivalent infrastructure operated by the private sector, such as the electricity and gas distribution networks, particularly since the pipeline and storage tanks are predominantly built underground to make the system less vulnerable. Officials at the Oil and Pipelines Agency regularly discuss, with appropriate external organisations, measures to best protect the GPSS, including from the risk of cyberattack. We would expect a purchaser to continue these measures post-sale.
Questions were also raised regarding the impact on safety and the environment following the sale of the GPSS. Any owner has an inherent interest in running the system in a safe manner and would need to comply with the same legislation and regulations as the Oil and Pipelines Agency does at present, such as the regulations under the Environmental Protection Act 1990 and the Pipelines Safety Regulations 1996. Therefore, it is not believed that a sale would have any adverse impact in these areas.
Lastly, and quite rightly, the value for money of a sale has been raised. A final decision on sale is dependent on being able to strike the right deal with the private sector, and value for money is a key consideration. Work is ongoing to update the initial value-for-money analysis that was undertaken in 2011 and which underpinned the impact assessment published alongside these clauses. To refine these financial figures, we have appointed external advisers to undertake a forensic examination of the GPSS costs and revenues, including any potential liabilities associated with the ongoing operation of the system. This work will inform a final decision on sale, which we aim to make by the end of this year.
I shall do my best to answer any concerns or questions that were asked. The noble Viscount, Lord Hanworth, and the noble Lord, Lord O’Neill, were concerned that the GPSS would be seen as a monopoly. The GPSS does not supply Heathrow, Gatwick and Manchester directly—this is done via third-party pipelines. The GPSS provides direct to Stansted, and the DECC and DfT have looked at regulation and concluded that none is required. The GPSS has to compete with other privately owned pipelines.
The noble Viscount was concerned at the foreign ownership issue. Any buyer would need to be deemed competent to operate the GPSS in a safe manner and to be a UK-registered company. We are considering what other criteria any purchaser would need to meet, including restrictions on foreign ownership, and the options for posing these restrictions before any onward sale.
The noble Viscount and the noble Lord, Lord O’Neill, asked whether there would be any regulation of the GPSS post-sale to protect customers. The DECC and DfT have reviewed the implications of the GPSS sale on the market, including access and charging, and concluded that, while it transports a significant proportion of fuel to major airports, existing regulatory provisions, particular under the Pipe-Lines Act 1962, are sufficient and no further regulation is required.
The noble Lord, Lord O’Neill, was concerned that the sale might adversely impact on safety and the environment. Any owner has an inherent interest in running the system safely and there is no reason to believe that the sale will adversely impact on safety. Indeed, the OPA already has to comply with a number of safety regimes such as the Health and Safety at Work Act 1974, the Control of Major Accident Hazards Regulations 1999, regulations under the Environmental Protection Act 1990 and the Pipelines Safety Regulations 1996, which are overseen by the Health and Safety Executive and the Environment Agency. This will not change.
Lord O'Neill of Clackmannan
The Minister referred to a number of regulatory bodies on health, safety, the environment and so on. I was actually asking primarily about economic regulation. Can he flesh out rather more the information he has given us on the nature of the other competitors that the pipeline would be matched against to supply the relevant airports? Can he say whether these pipelines are subject to any kind of economic regulation, probably by Ofgem?
Lord Astor of Hever
My Lords, I hope to come back with a suitable answer quickly. In fact, I will write to the noble Lord on this issue.
The noble Lord, Lord Grantchester, was concerned that there are no additional clauses on conditionality. Clause 114 makes provision to modify the application of certain provisions of the Pipe-Lines Act 1962 to the GPSS, so that the GPSS, as far as possible, is treated post-sale as if it were a pipeline to which that Act applied. This is to ensure that it has neither a competitive advantage nor disadvantage to other such pipelines. Any conditions on sale will be contractual.
Finally, the noble Lord, Lord Grantchester, was concerned that there might be a conflict on the value consideration. We expect value to be positive.
I hope that apart from the one issue on which I will write to the noble Lord, Lord O’Neill, I have answered all noble Lords’ questions and concerns. I thank my noble friends Lord Howell and Lord Jenkin for their support.
Armed Forces (Retrial for Serious Offences) Order 2013
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Lord Astor of Hever
That the Grand Committee do report to the House that it has considered the Armed Forces (Retrial for Serious Offences) Order 2013.
Relevant document: 5th Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)
My Lords, there are two instruments for consideration today, the Armed Forces (Retrial for Serious Offences) Order 2013 and the Armed Forces (Court Martial) (Amendment) Rules 2013. I shall say a few words on each, starting with the former. For your Lordships’ convenience, I shall refer to it as the retrial order.
This instrument enables persons acquitted of certain very serious offences by a service court—for example, the court martial—to be retried in the service justice system. This may happen only if new and compelling evidence comes to light in relation to those offences and if it is in the interests of justice for a retrial to take place. These are high hurdles to clear.
Our purpose in making this order is to follow the same path as Part 10 of the Criminal Justice Act 2003, which reformed the law relating to double jeopardy. Before the 2003 Act, a person who had been acquitted of an offence could not be retried. The 2003 Act changed the law to permit retrials in respect of a number of very serious offences where new and compelling evidence has come to light, but separate provision is required to apply this to our service justice arrangements.
We are now filling that gap. I do not want to give the impression that this measure is driven by specific concerns about members of the Armed Forces who are evading justice because they cannot currently be retried. It is intended simply to bring the two systems of justice into line on this matter, extending the same principles from one to the other; nor would I want to give the impression that we are doing this now for any reason other than we want to have the legislation ready.
The Armed Forces (Retrial for Serious Offences) Order makes provision for the retrial of persons previously acquitted in the service justice system of a “qualifying” offence. Qualifying offences are set out in Schedule 1 to the order. They include a very limited number of criminal offences—such as murder, manslaughter and rape—and, because this legislation is for the services, a small number of disciplinary offences, such as assisting the enemy.
The order sets out the arrangements governing the investigation, charging and application for a retrial of an acquitted person for a qualifying offence. Retrial is a complex matter and there are, as I said, high hurdles to get over first. In broad terms, the order will enable the service police to reinvestigate the commission of a qualifying offence by a person previously acquitted of the offence. Investigative measures may, in most cases, occur only if the Director of Service Prosecutions consents; and he may only give his consent if he is satisfied that it is in the public interest to proceed with an investigation and that there is either some new evidence that warrants an investigation or some evidence would come to light if the investigation takes place.
However, there is a power for service police to take investigative steps without the consent of the Director of Service Prosecutions if it is necessary to do so to prevent the investigation being prejudiced. Additionally, a person previously acquitted of a qualifying offence may be arrested only if a judge advocate has issued a warrant for their arrest. Where a person has been charged with a qualifying offence, and if the Director of Service Prosecution consents, a prosecuting officer may apply to the Court Martial Appeal Court for an order to retry the person. Where such an application is made, the court must make the order applied for if it is satisfied both that there is new and compelling evidence against the acquitted person and that it is in the interests of justice to do so. As the Committee will recognise, therefore, a strong set of safeguards has been built into the new procedures.
It is important to clarify the position of those who have left the Armed Forces. In most cases, there are strict limits in place that prevent former service personnel being charged with a service offence when they have been out of the Armed Forces for more than six months. However, this time limit can be waived if the Attorney-General consents. The time limit applies in relation to all former service personnel who are suspected of committing a service offence and not just to those who might face retrial. These provisions also apply to civilians subject to service discipline.
The order also makes provision for the production of evidence and attendance of witnesses at the hearing. It creates a right of appeal to the Supreme Court. There is provision for the Court Martial Appeal Court to make an order restricting the publication of material which might otherwise prejudice the administration of justice and, furthermore, it makes it an offence for a person or an organisation to breach an order prohibiting publication. It provides for the period of time in which certain arrangements for the retrial must be made and for the holding in custody, and release from custody, of a person, previously acquitted, who is charged with a qualifying offence. There are also a small number of supplementary provisions relating to the rules governing the service of documents and the exercise of functions of the Director of Service Prosecutions and the Court Martial Appeal Court.
I now turn to the second order, the Armed Forces (Court Martial) (Amendment) Rules 2013. The court martial was established by the Armed Forces Act 2006 as a standing permanent court that replaced the system of ad hoc courts martial that were convened by the services. The court martial may sit anywhere, within or outside the United Kingdom. It comprises a civilian judge, known as the judge advocate, and lay members—sometimes referred to as the board members—who are usually officers or warrant officers. Its rules of procedure are set out in the Armed Forces (Court Martial) Rules 2009. I shall call these the 2009 rules. These broadly follow those that apply in the civilian system, but reflect the different make-up of the court martial. The main purpose of the second instrument before us today is to amend these rules, specifically Rule 29, to reduce, in certain circumstances, the number of lay members that sit on the panel of the court martial.
The court martial rules—in fact, the rules of all service courts—are kept under review by the Service Courts Rules Review Committee. This is a non-statutory body under the chairmanship of the Judge Advocate-General. Currently, Rule 29 of the 2009 rules provides that where court martial proceedings relate to a more serious offence, there shall be at least five lay members. The Service Courts Rules Review Committee considers that in cases where a defendant or co-defendants all enter a guilty plea before the trial begins, it is not necessary to have five lay members. It has therefore recommended an amendment to Rule 29 that reduces the minimum number of lay members required to sit in the court martial in these circumstances from five to three. The aim of this is to reduce delay and the cost of proceedings in the court martial, but it is not cutting corners. It is a sensible adaptation of the system to a particular set of circumstances.
The instrument does two further things. It prescribes a procedure for the court martial to certify to a civilian court, which has the power to commit for contempt, the failure of a person to comply with an order of a judge advocate to produce material to a service policeman or to give a service policeman access to it. It also removes a piece of legislation made obsolete by changes made in the Armed Forces Act 2011.
The Armed Forces Act 2006 gave Her Majesty’s Armed Forces a service justice system that provides consistent and fair access to justice for all, whether they are in Aldershot or Afghanistan. We have faith in this system and, more importantly, our Armed Forces have faith in it. However, we continually look for ways to enhance our processes and to keep the service justice system in line with its civilian counterpart. The orders that we are considering today contribute to that effort.
Finally, I will say a few words about ECHR issues. It is the custom for Ministers commending instruments subject to the affirmative procedure to say whether they are satisfied that the legislation is compatible with the rights provided by the European Convention on Human Rights. I am happy to inform the Committee that I believe that the instruments we are considering today are indeed compatible with the convention rights.
Lord Trefgarne
My Lords, I am of course grateful to my noble friend for what he said but will make just a few remarks about the Armed Forces (Retrial for Serious Offences) Order. We need to be careful that we do not surround the activities of our Armed Forces, in particular our Special Forces, with such a panoply of legislation that they will have difficulty discharging their duties in the manner that we would wish. Of course the Armed Forces cannot be exempt from the law, but if they are at risk—or fear that they are at risk—of too zealous an application of the relevant legislation, there may be difficulties of a wider kind.
I apologise for going back so far, but some of your Lordships may recall an incident in Gibraltar in 1988 when Special Forces were involved in an operation against IRA suspects. At the time, there was much initial discussion, although it did not go on for ever, as to whether they had complied with the law or not. It was a very finely balanced judgment and a question of whether they had complied with the rules of engagement, as they are called, laid down by Ministers in respect of the use of firearms in circumstances such as then prevailed. I was much involved in the discussion; indeed, there was a very important debate in your Lordships’ House at that time, to which I replied. It was established that they had indeed complied with the required legal provisions and therefore that no question of any offence arose. However, there was a coroner’s examination of the matter in Gibraltar. The outcome of that was not initially certain but eventually it was clear.
It is important that in general terms we do not surround our Armed Forces, and particularly our Special Forces, with such a panoply of rules and regulations that when the time comes for them to do maybe some pretty dreadful—but nonetheless necessary —things, they are inhibited by a possible fear of vexatious prosecution or perhaps a second prosecution, as provided for by this order. I need to be careful, as there is a particular case before the courts at present which must take its course. However, I hope my noble friend can assure me that nothing in this order will create a situation where the activities of our Armed Forces, including our Special Forces, are placed at risk or in greater difficulty.
Lord Astor of Hever
My Lords, I am grateful for the support that both noble Lords gave to the two instruments that we have considered today. Taking the question from my noble friend Lord Trefgarne first, I agree with him that we should not surround our Armed Forces, particularly our Special Forces, with too much of a panoply of legislation. However, we feel that we have got this right. My noble friend mentioned the Special Forces, and in particular the Gibraltar case. He has raised a really important point, not just for Special Forces but for all members of the Armed Forces, and I am very grateful to him for that. My answer is that our Special Forces personnel are in the same position as regards the law as any other member of the services. I am sure that neither they nor the Committee would wish it to be any other way. However, I emphasise that there are a strong set of safeguards before any retrial can be set in motion. I stress that the particular demands of service life and the requirements of operations are always in the minds of those investigating and prosecuting alleged offences.
I turn to the questions asked by the noble Lord, Lord Rosser, although I will not necessarily deal with them in the order that he asked them. First, he asked whether there are lay members on the Service Courts Rules Review Committee and whether the order has their support. The committee is chaired by the Judge Advocate General—the senior service judge—and includes the Director of Service Prosecutions and legal and policy representatives from the Ministry of Defence. The Association of Military Court Advocates is also represented. In its work, the committee consults the services, the Service Prosecuting Authority, the Association of Military Court Advocates and the Military Court Service. It does not make the rules itself but makes recommendations to the Secretary of State, who does make the rules, and any necessary changes, through the procedure being used today. As I explained, this order is the result of a recommendation from the committee.
The noble Lord asked how many court martial sittings there were last year with lay service members on the panel. Last year, I understand that 516 service personnel were court-martialled with lay members. How many cases were heard in a court martial is, in essence, the same question, and the answer is also 516. The court martial sat for 689 days in 2012. The noble Lord asked if the number of sitting days was going up, going down or staying the same. I am advised that it appears to be staying the same.
The noble Lord asked about the total number of lay members who are eligible to sit. In principle, all officers and warrant officers of the three services who are eligible and qualified in accordance with the Armed Forces Act 2006 may sit in the court martial. In some cases, certain civilians may also be eligible. Who is eligible in any given case depends on a wide range of factors specific to each case. I am aware that that may not fully answer the noble Lord’s question, and I will pad that out in a detailed answering letter.
The noble Lord asked whether it weakens the panel for a court martial if it is reduced from five lay members to three. We feel that it does not. In fact, most courts martial have a three-man lay panel for sentencing and for trial purposes. This change simply recognises that, where an accused is charged with a more serious offence and admits his guilt, there is no need for a five-man panel.
The noble Lord asked about the average number of sitting days per lay member per year. Again, we will have to do a bit of digging around to find out the answer to that. I shall write to the noble Lord.
Finally, the noble Lord asked what the difference is between “consultation” and “rigorous consultation”. “Rigorous consultation” is a shorthand way of referring to the fact that any proposals that we make for changes to the service justice system are based on a collaborative and open process between the Ministry of Defence and those who administer, and are subject to, the service justice system.
I shall study the official record of the points that have been raised and will write if I have anything to add to our exchanges.