Armed Forces Act (Continuation) Order 2022

Lord Burnett Excerpts

Tuesday 5th July 2022 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, I support this continuation order, but I shall refer to two points that I raised during the passage of the Act last year. It was agreed that the first would be dealt with in later work. It was whether having due regard for veterans’ treatment under the military covenant should not be restricted to issues dealt with by subordinate authorities and whether there were some which it would be necessary to grip at central government level. The Government undertook to report after due consideration taking place later this year and next. Can the Minister confirm that this is still the position? Does she have anything to add to it?

The second issue concerns the treatment of Hong Kong Military Service Corps veterans who did not retain their British passports as had some of their number in 1997. I raised this in the debate on the then Armed Forces Bill. The MoD passed it to the Home Office for further consideration. I raised it again in the debates on the then Nationality and Borders Bill earlier this year, which led to a commitment from the Dispatch Box that the Government would resolve this long-standing issue by the end of this calendar year with a further undertaking to report on progress in June. June has been and gone, and I have yet to have a response to my Question for Written Answer seeking information on progress. As this concerns veterans, I hope that the MoD will continue to take an active interest in the outcome which veterans have long sought.

[Lord Burnett (LD)]

My Lords, I join the Minister of State, my noble friend Lady Smith and the noble Lord, Lord Coaker, in their support and admiration for our wonderful Armed Forces. During the progress of the Act, I referred to Sir Richard Henriques’s admirable report and the suggestions and recommendations he made. Will the Minister give us an answer as to what is happening about those recommendations? If not much is happening, when will something happen about them?

[Baroness Goldie (Con)]

My Lords, I thank your Lordships for the warmth of sentiment. I think we articulate a conjoined view of admiration for our Armed Forces. It is very important to our Armed Forces to know that these sentiments come from all quarters of the Chamber. It is important that they are aware of that and know that they are valued right across the political spectrum. I thank your Lordships for making that so clear.

The noble Lord, Lord Coaker, raised a number of points. He correctly raised the need to continue to explain to the public the importance of what we are doing to support Ukraine. I absolutely agree with that. As I think we all understand, what we are doing to come to the aid of Ukraine and to assist in its self-defence, along with our NATO allies and other partners, is, frankly, a fundamental fight for the preservation of freedom, sovereignty and respect for international law, which we have seen so appallingly traduced in recent months. I entirely agree with his sentiment, and there are probably various ways in which we can apply our minds to how we might continue to do that, and maybe do it better, so I thank him for raising the point.

As he indicated, it extends not just to the United Kingdom but to our NATO allies. The NATO summit did its own bit of dissemination of information, because it garnered a lot of publicity and interest. It was largely all about how we in Euro-Atlantic security recognise what has been happening and then pool our resources to make sure we have a really impressive and robust facility to deter any further illegal activity.

The noble Lord raised a technical point that I understood, but it bewildered me because I did not have an answer to it. I am grateful to him for raising the point. I am informed by my officials that the Armed Forces Act 2006 itself does not extend to Gibraltar and the Channel Islands. I think that is because of their particular Administrations and regimens within their jurisdictions, but apparently they can apply the Act using their own legislation. It seems that technically they are outwith the scope of the Act but that if there are parts of the Act that they wish to invoke, they can use their own legislative powers to achieve that.

The support of the noble Baroness, Lady Smith, for the Armed Forces was also very welcome. I rather shared her sense of déjà vu about the recurrence of Armed Forces legislation. We all agree that it is important, but we have been seeing it quite regularly in the legislative programme. It matters and it is probably refreshing for us all—not least for me as a Minister—to be constantly reminded of things we must keep an eye on.

I wish to reassure the noble Baroness that the SI we are dealing with is of course very important. She mentioned the paucity of personnel on the Front Bench. I think earlier matters completely consumed your Lordships’ attention and probably exhausted their appetite for further discussion. I was very nearly not here myself, so it was a great relief that I came panting in at the 11th hour. I hope the Secretary of State for Defence remains in post; he and I have a good relationship and I think he is doing a first-class job.

The noble Baroness raised the important issue of what the Government are doing to value our Armed Forces and to be sure that we are allocating to them the resources they require. She raised a number of important specific issues, such as health and safety, morale and troop numbers, which I know is a subject of interest to your Lordships. With the recent budget settlement, a lot of expenditure is now being allocated to the very sorts of things she is concerned about, whether that is improving uniforms—not least for women, interestingly—or looking at upgrading service families’ accommodation and making sure it is much more modern and acceptable. There have been issues with some elements of that accommodation but that is currently very much under active review.

--- Later in debate ---

I must apologise to the noble Lord, Lord Burnett. As he spoke, I was busy jotting down a response to the noble Baroness, Lady Smith. I invite the noble Lord to re-pose his question, because I did not get a proper note of it.

[Lord Burnett (LD)]

Sir Richard Henriques made an admirable report, which we discussed in last year’s debate leading up to the Act. He made some recommendations, and I wonder what has happened about them—whether they have been adopted and when they will be adopted if they have not—and the progress the Government are making in dealing with those very important recommendations.

[Baroness Goldie (Con)]

I thank the noble Lord and apologise for failing to pick up on his question first time round. I have good news to share. The Henriques report was, frankly, excellent, and pivotal to redirecting how the MoD should conduct activity within the service justice system. I remind your Lordships that Henriques found that that system was, in its own respect, robust, professional and capable. Importantly, the Defence Serious Crime Unit has been set up, and a provost marshal has been appointed to run it. There are to be improvements to Military Police investigations, but the Military Police are now benefitting from additional training which they share with their civilian counterparts. That is a very important aspect of how we assist our Military Police in dealing with investigations. There have been other improvements in how we expect witnesses to give evidence and the protections we can afford to them when they give evidence, including victims, so that that much more replicates the safeguards we find in the civilian criminal justice system.

What might be helpful to the noble Lord is for me to go back and task my official who is preparing a little précis of the progress that has been made—progress has been constant and it has been important—and undertake to write to the noble Lord with that. I will put the letter in the Library so that that information is more broadly available.

Armed Forces Bill

Lord Burnett Excerpts

Consideration of Commons amendments
Wednesday 8th December 2021 Lords Chamber

I shall be very brief but I foresee that, before the next renewal of the Army Act, someone concerned with good governance in the Ministry of Defence will see the inevitable case for radical reform. I support the amendment moved by the noble Lord, Lord Thomas of Gresford. He is absolutely right that the Attorney-General supervises the Director of Public Prosecutions. I see no constitutional difficulty in that. If the amendment may be technically wrong, then perhaps we should have had some kind of provision to enable the situation in Scotland and Northern Ireland to be reflected accurately. I support the amendment.

[Lord Burnett (LD)]

My Lords, I draw attention to my entries in the register of interests and declare that I had the honour to serve in the Royal Marines. I will make a short contribution to this debate. I have only recently discovered that Sir Richard Henriques has made mention of and quoted from speeches I and others made during the progress earlier this year of the now Overseas Operations (Service Personnel and Veterans) Act. I put on record my thanks to him for his thorough and compelling report.

I also support this amendment in the name of my noble friend Lord Thomas of Gresford, who has a wealth of knowledge and experience in these matters. If the Government remain unconvinced of the merits of Motion A1, they should commission further research into whether the hierarchical nature of service life is imported into the court martial system or if there is a perception that it is. In other words, are panel members influenced by the hierarchy’s view or what they perceive is the hierarchy’s view?

This concerned me in the Sergeant Blackman case; I played a minor role in the campaign to exonerate him. He served in 42 Commando Royal Marines, had an exemplary record and had been deployed on active service six times in Iraq and Afghanistan. This amounted to six six-month tours of intensive combat operations in seven years. This is not a complaint but an explanation. I always believed that the philosophy of a court martial was that the individual service man or woman should be tried by their peers. In other words, the panel should be comprised of individuals who had experienced the same horrors and dangers of the battlefield with which Sergeant Blackman was only too familiar. In his case, it was an allegation of murdering a mortally wounded enemy operator on the battlefield. The court martial conviction for murder was rightly quashed at the behest of the Criminal Cases Review Commission. A terrible miscarriage of justice was partly righted.

There were seven members of Sergeant Blackman’s court martial panel, five of whom had very little or no experience of combat soldiering in the most dangerous, arduous and exhausting conditions. These conditions were exacerbated by being in mortal danger most of the time, in the full knowledge that at any time Sergeant Blackman or any of the Marines under his command could have set off an improvised explosive device which could have killed or maimed any one or more of them. Two members of that panel had shared that experience, and Sergeant Blackman was convicted by a vote of 5:2 This was an insufficient ratio for a civilian criminal court to convict.

There are other disparities between court martials and civilian criminal court trials that I and others have mentioned in previous debates; they have already been aired here, in part. These disparities do not flatter the court martial system. The further research that I have suggested should also encompass service rivalry, battle fatigue—which can affect the strongest and bravest of men or women—the effects of provocation, and being in continuous mortal danger for months without a break, often in extreme weather conditions. It should also consider the impact of misogyny, sexism and racism in the court martial system, and whether civilian criminal courts would provide a more balanced and equitable system of justice.

Finally, in chapter 8 of Sir Richard’s admirable review, headed, “Legal support and the Defence Representation Unit”, he makes six recommendations, numbered 47 to 52 inclusive. I ask the Minister the following questions. First, have the Government accepted these recommendations? Secondly, will the Government consult on them? Thirdly, will there be a debate in this House on the results of that consultation? Finally, what is the Government’s timetable for their implementation?

[Lord Craig of Radley (CB)]

My Lords, I will speak to Motion B1 in my name. It was a great disappointment that the other place was not prepared to accept this House’s well-supported amendment, originally proposed by the noble and learned Lord, Lord Mackay of Clashfern, and to which I readily added my name. With his vast and rightly respected experience, he considered that the Secretary of State should have a statutory duty of due regard for veteran affairs. The telling example of Gulf War syndrome was mentioned. Noble Lords will recall that the Government of the day were reluctant to see or treat this issue with the seriousness it seemed to deserve. It affected a considerable number of service and ex-service personnel who had served in Operation Granby in the first Gulf War of 1991.

A number of noble Lords, dismayed by the Government’s decisions just to set up further studies, arranged an independent inquiry chaired pro bono by a distinguished Law Lord, Lord Lloyd of Berwick. He conducted a fair and exhaustive inquiry to which I, as Chief of the Defence Staff during the conflict, gave evidence. But no Government Minister was prepared to be interviewed, or even to attend any of the hearings. That was an example of impact on veterans that was not solvable at local level.

At Report, I quoted another example, that of the veterans of the Hong Kong Military Service Corps, whose long-outstanding case also could not be resolved at devolved or local-authority level. I understand that the MoD has passed this case back to the Home Office, but I hope that the MoD still sees it as a veteran case that deserves its continued interest and a responsibility to see it finally settled. It would be most unsatisfactory, when dealing with the concerns of veterans, for the MoD and the Secretary of State not to continue to be seen to be actively supportive of their veterans. A statutory requirement for the Secretary of State to pay due regard and be seen to discharge a duty of care for veterans seems more important than ever. Serving personnel, soon to be veterans, may well have been involved in live operations that, more than ever, are subject to active ministerial oversight and even direction. Looking to the future, assuming the media reports of hearing damage to soldiers testing the Ajax AFV to be true, this could become a veteran issue—an issue that needs a duty of care for all the veterans as a group, not just individually, where there might inevitably be differing outcomes causing lasting resentment.

This amendment therefore gives the Secretary of State time to consider his responsibility further and report to Parliament. As the amendment spells out, it requires the Secretary of State to detail

“the implications of not applying the same legal responsibility to have ‘due regard’ under the Armed Forces Covenant to central government as the Act requires of local authorities and other public bodies.”

It has been argued that the Secretary of State believes that he and central government already bear this responsibility. Why, then, is there this reluctance to spell it out closely in statute?

The Minister in the other place made the particular point that, because the Secretary of State makes a report to Parliament annually, he is fully discharging his duty of care for veterans. But it is not just a moral duty; the Armed Forces Act 2011 made reporting annually a statutory requirement, so it seems to follow that “due regard to” should be enacted; otherwise, the statutory responsibility is confined just to reporting.

The Minister in the other place said that,

“responsibility for the actual delivery of nuts-and-bolts frontline services and their impact … rests at local level”.—[Official Report, Commons, 6/12/21; col. 99.]

He made no mention of the heart of your Lordships’ case, that there were some issues that could not be dealt with at local level. Why was this not considered? All he said was that the inclusion of central government was simply unnecessary; he did not explain why. As I have just mentioned, the MoD has passed the case that I cited on Report of the Hong Kong veteran to the Home Office; one central department having due regard has passed it directly to another. I rest my case.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Burnett Excerpts

Committee stage
Thursday 11th March 2021 Lords Chamber

If the noble Lord is to return with a further amendment of this kind on Report, subject of course to the response from the Minister, he might add some provision in the duty of care for those veterans who have claims against the MoD. The focus of this amendment is, understandably, on the anxieties of those who are subject to suspicion and accusation through these lengthy investigations. I do so agree with his wider point about our society, in which the presumption of innocence as a societal concept has been chipped away at for so long. We now live in a world, exaggerated by the internet, for example, of “no smoke without fire”, which is very far indeed from the principle of the presumption of innocence. I wonder whether there is room in the noble Lord’s duty of care and duty of care report to think about veterans who are victims and who are struggling to get access to legal advice and representation in their claims against the MoD. Aside from that, I fully stand with the noble Lord and look forward to the Minister’s reply.

[Lord Burnett (LD) [V]]

My Lords, I draw attention to my entries in the register of interests. I had the honour to serve in the Royal Marines, during which time I served on overseas operations. I support the thrust of this proposed new clause and congratulate and thank the noble Lord, Lord Dannatt, and others for tabling it.

The new clause would provide for the establishment of

“a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations”.

It also provides for an annual report on the duty of care to be laid before Parliament. This is a satisfactory solution to some of the matters I raised at Second Reading, when I stated that

“when charges such as these are contemplated, no expense should be spared in mentoring and assisting a defendant, who will need an experienced individual to guide him through the maze of criminal law and procedure. The defendant should have access to the very best legal team available and be able to access medical assistance to engage with the effect of the stress of operations, including being in mortal danger most of the time, and often in searing heat. This should all be at public expense.”

As soon as an individual comes under investigation, it appears that his colleagues are forbidden to contact him and he starts to feel isolated and abandoned. The defendant should have someone of experience from his own corps, regiment or service as a supporter he can rely upon. That supporter should be properly trained, independent and have access to the defendant at all times. As I said at Second Reading, the defendant will need the best legal team available. The Bar Council and the Law Society should be asked to co-operate with the Ministry of Defence in providing a list of suitably qualified and experienced barristers and solicitors, with their curricula vitae, to assist the defendant in his decision on who is going to represent him. The Ministry of Defence should liaise with the appropriate professional body to provide a list of experienced mental health professionals. These are just some of the steps that should be taken; others have been outlined by the noble Lord, Lord Dannatt, and other speakers. There will be more.

The Committee should bear in mind that these matters of culpability and responsibility are riven with difficulty. Soldiers engage in warfare not only for their country but for their comrades. They fight for their comrades and their comrades fight for them, often in the most appalling and hazardous conditions. Matters such as provocation should be gone into in great detail. We rightly respect, and have to comply with, the laws and conventions of war. Regrettably, some of our enemies do not. It would serve no useful purpose for me to give examples of some of the terrible atrocities that our troops have had to suffer. Suffice to say that the bonds between comrades forged by and in war are immensely strong.

Provocation is not the only factor to be borne in mind when determining culpability and responsibility. An individual’s state of mind will change when he is deployed on operation. He will have to be alert at all conscious times. He is in mortal danger most of the time and sleep is light and constantly disturbed. Sleep deprivation is one of the most mentally and physically debilitating conditions. The individual knows that he must keep going at all costs—he owes it to his comrades, and they owe it to him. The foregoing is the reason why I stated, at Second Reading, that I believed that

“there should be a duty on the Judge Advocate-General to bring the possibility of battle fatigue and diminished responsibility to the attention of the panel.” —[Official Report, 20/1/21; col. 1191.]

I look forward to hearing from the Minister in response to this debate, and in relation to matters I raised at Second Reading when I outlined changes that should be made to the system of courts martial. I appreciate that, on the latter matter, I will have to wait for a letter.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Burnett Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 20th January 2021 Lords Chamber

[Lord Burnett (LD) [V]]

My Lords, I draw attention to my entries in the register of interests. I had the honour to serve in the Royal Marines, during which time I was involved in overseas operations.

Before I speak to the Bill, I will highlight matters relevant to it, in relation to courts martial, which I believe should be changed. These matters arise from the successful campaign to rectify the terrible miscarriage of justice in the case of Marine A, to which my noble friend Lord Thomas referred. His name is Sergeant Blackman, then of 42 Commando, Royal Marines. He is an exemplary individual. I have referred to these matters in the House before; I should remind the House that, in the seven years or so leading up to the incident, Sergeant Blackman had been deployed on operational service six times in Iraq and Afghanistan— six six-month tours of intensive combat operations in seven years. No one in the Royal Marines complains of that level of deployment, but the Court Martial Appeal Court recognised that this causes great stress for even the best-trained, bravest and most determined of our elite troops. These are individuals of the highest calibre, who deprecate any torture or war crimes.

I will reiterate what I have said before. First, when charges such as these are contemplated, no expense should be spared in mentoring and assisting a defendant, who will need an experienced individual to guide him through the maze of criminal law and procedure. The defendant should have access to the very best legal team available and be able to access medical assistance to engage with the effect of the stress of operations, including being in mortal danger most of the time, and often in searing heat. This should all be at public expense.

Secondly, there should be a duty on the Judge Advocate-General to bring the possibility of battle fatigue and diminished responsibility to the attention of the panel.

Thirdly, and most importantly, a simple majority at a court martial can convict a person; in Sergeant Blackman’s case, five of the panel found him guilty and two found him not guilty. This would be insufficient for a conviction in a civilian criminal court. The court martial majority rule should be changed to follow the civilian criminal law standard.

Fourthly, the ethos of a court martial is that a person is supposed to be tried by his peers who have served in similar combat operations as the defendant, and who therefore appreciate the burdens and demands of such operations. No one who has not served through the horrors of the front line in Iraq and Afghanistan or similar conditions can appreciate the stresses and dangers that will affect even the strongest and best-trained human being. All members of the panel in a court martial should have had similar experiences to those of the defendant. No one who has never heard a shot fired in anger should be on the panel of any combat military personnel. Fifth, and finally, panel members should be drawn from suitable people of all ranks.

I have considerable sympathy for the Bill in that it seeks to overcome problems, but I have grave concerns about some of the solutions it proposes. The Access to Justice Act 1999 greatly extended the scope for conditional fee agreements. Basically, the lawyer is paid on a no-win no-fee basis; if there is a win, the lawyer receives considerably more money. Therefore, the lawyer has a substantial financial stake in the outcome. This has tempted a number of lawyers to trawl for work in countries where service personnel were deployed, sometimes many decades ago. There are cases where evidence has been fabricated and individual complainants have sometimes been bribed to perjure themselves. The lives of innocent serving and retired personnel have been ruined. The Government should examine the extent, consequences and impact of these conditional fee agreements.

It deserves to be emphasised that the vast majority of members of our Armed Forces have exemplary standards and give fantastic service to this country. There can occasionally be an individual who falls short of these high standards and blemishes the wonderful service given by so many.

I am concerned about the short time limit for making claims and the fact that these claims often arise from long-term conflicts, where it takes time for the dust to settle. I believe the time limit should be extended. I agree that sexual offences should have continuing liability—so should torture and war crimes. Furthermore, I am concerned by the relatively short time limits sought to be imposed on the service personnel’s ability to sue the Ministry of Defence.

Finally, I take this opportunity to pay tribute to all members of our Armed Forces and their families, who give such courageous, unselfish and superb service to our country.

Reserve Forces and Cadets’ Associations

Lord Burnett Excerpts

Monday 27th January 2020 Lords Chamber

[Lord Burnett (LD)]

I draw the attention of the House to my entries in the register of interests, and the whole House should be grateful to the noble Lord, Lord De Mauley, for calling this debate at such a crucial time for the reserve forces and cadets in the light of the proposed changes to be made to the Council of the Reserve Forces and Cadets Associations.

I have two general points on defence which I hope the Minister will be able to deal with in her reply. First, there is a strategic defence review in the offing. Does she have a timetable for this, and what opportunities will noble Lords have to consider and debate the proposed review? Secondly, will the military covenant be given statutory force, and when will the necessary legislation be brought to the House?

On the main thrust of the debate, I am sure the whole House is united in support for the reserves and cadets, both of which link the Armed Forces with their parishes, villages, towns and cities throughout the United Kingdom. The House has heard from the noble Lord, Lord De Mauley, explaining the structure of the RFCAs, whose personnel are largely unpaid volunteers from diverse walks of life. They also enhance and reinforce the important link between civilians and the Armed Forces. Given the shrinking manpower in the Armed Forces, this is more crucial than ever.

Service in the reserves and cadets is of great importance, not least because it gives an opportunity for individuals to serve their country in the Armed Forces, which they can do while concurrently pursuing their studies. The links that RFCA members have with the civilian population are invaluable, not least because they assist in the retention of the good will of employers who release their staff to serve. Reserves are vital for reinforcements in combat and, furthermore, service in the reserves enables individuals who have served in the regular Armed Forces to transfer to the reserves and to retain and hone their skills.

In a debate also called by the noble Lord, Lord De Mauley, on 21 June 2018, I cited the case of two regular Royal Marines who left the corps and joined the reserves—namely Corporal Seth Stephens, a member of the Special Boat Service reserve, posthumously awarded the Conspicuous Gallantry Cross for outstanding bravery in Afghanistan; and Corporal Matt Croucher, awarded the George Cross for outstanding bravery while serving in a commando unit in Afghanistan.

Before I close my speech, I will say a few words about the Cadet Expansion Programme. This has been a great success, a combined operation with cross-party support. The Ministry of Defence, the Department for Education and the Treasury, which funded the programme partly through Libor fines, all deserve credit. The RFCAs played an active part in bringing about this success. It was launched in 2012, and by November 2019 the CEP 500 target was met five months early when the 500th cadet unit began parading. The vast bulk of the 258 new CEP schools are state-funded schools. It is already clear that there is overwhelming and compelling evidence demonstrating that cadet forces can make a huge and positive contribution to social inclusion, social mobility and the well-being of young people.

The Minister, in her comments on the draft report, is rightly extremely complimentary of the RFCAs. The noble Lord, Lord De Mauley, has told the House that the RFCAs are happy to see the council put on a statutory footing and to take certain additional safeguarding and other measures, but that the national and regional councils should remain volunteer led. Drastic change, as envisaged, should be resisted. I remind the House of the changes made some years ago in the system of Army recruiting. The results have been disappointing, to say the least. This is not an isolated example of where drastic change has resulted in failure. I hope the Minister is able to reassure us that the councils will remain volunteer led and retain their responsibilities.