Defence Reform Bill

Lord Craig of Radley Excerpts

Wednesday 26th March 2014 Lords Chamber

[Lord Palmer of Childs Hill (LD)]

My Lords, the amendment moved by the noble Lord, Lord Rosser, raises an important point. Despite a lengthy explanation, the point is whether an annual 2020 plan would help. I have some questions for my noble friend the Minister. What sort of manpower on an annual basis would be needed to prepare such an annual report and would that have any effect on the use of our fighting manpower? Will he also comment on how much information is already in the public domain? That point was mentioned by the noble Lord, Lord Rosser, who said that the information is available but not in a complete format. Perhaps my noble friend can say whether such an annual report, if it showed deficiencies, would aid our enemies rather than the country. I am all for transparency but we are talking about the defence of the realm.

[Lord Craig of Radley (CB)]

My Lords, I have one very small comment. It would seem to be quite wrong to restrict such an annual report to the Army. It would be necessary, if such an approach were to be adopted, for the report to cover all three services in full.

[Lord Ramsbotham (CB)]

I absolutely agree with my noble and gallant friend Lord Craig on that point. On reading the Defence Committee report, Future Army 2020, I was concerned to note two statements:

“We are surprised that such a radical change to the Army’s structure … was not discussed at the National Security Council”,

and,

“We note that the Secretary of State for Defence accepts that Army 2020 was designed to fit a financial envelope”.

The financial envelope includes not just the Army but the other two services. If we look at history, an annual debate was held in both Houses on the estimates for the Navy and the Army. We are therefore putting back history, as it were, if we have an annual estimate. Particularly in this case, I note the suggestion that the first discussion should be in January 2015 because, of course, when the strategic defence review 2010 was introduced it was clear that its achievement was dependent on the money that would be available in 2015. Looking around, it seems pretty obvious that that amount of money may not be available—in which case, all three services will have to face a review of the current plans.

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Moved by

[Lord Craig of Radley]

9: Clause 50, page 33, line 2, at end insert—
“( ) An order under subsection (1) to commence Part 1 may not be made before the Secretary of State has published a White Paper and an impact statement on any proposed Government-owned contractor-operated options compared with DE&S as modified by the Secretary of State commencing in 2014.”

[Lord Craig of Radley]

My Lords, the amendment relates to the commencement of Part 1. During earlier consideration of the Bill, both at Second Reading and in Committee, I and other noble Lords questioned why Part 1 should be enacted now. The Government had made it clear just before Second Reading that they did not intend to proceed with the GOCO model; instead, they would seek to strengthen DE&S—described as DE&S-plus—for the next three years, and maybe more, before reconsidering a GOCO solution.

It was explained that getting parliamentary time for a GOCO Bill at a later date might be difficult. The option of using the quinquennial Armed Forces legislation, due not later than November 2016, as a vehicle for Part 1 of the Bill might be adopted, but it could well be too early. Moreover, few would claim that a GOCO part would be a particularly comfortable companion to the Armed Forces Bill. This must be enacted before the five-year life of its 2011 predecessor runs out. Any delays in its progress through Parliament because of differences over the GOCO part would be best avoided. For these reasons, I now accept that the Armed Forces Bill would not be a suitable vehicle and that the inclusion of Part 1 in this Defence Reform Bill should stand.

However, because a GOCO model would be such a major step change in defence procurement arrangements and the timing of its introduction so undetermined, the Government agreed that both Houses should be given a legislative opportunity to reconsider Part 1 prior to its commencement. The Minister therefore added in Grand Committee the amendment that now forms Clause 50(3). This is a step in the right direction, but it does not go far enough.

Part 1 sets out a range of issues covering the arrangements and responsibilities of a GOCO. It contains a considerable amount of important detail; for example, on transfer of employees, financial provisions and protection of intellectual property rights. These and the rest of Part 1 are clearly essential information for any consortia that might wish to formulate a bid for a GOCO contract. In short, Part 1 is about process; it is not about principle. The principle is whether to replace DE&S-plus—not the current DE&S—with a GOCO. An affirmative resolution, the Government’s present position in the Bill, approves only Part 1 commencement and agrees the technical and administrative processes to be followed by a GOCO. This is surely not sufficient.

Ahead of passing the affirmative resolution, Parliament needs to consider as well the relative merits and risks of proceeding with a GOCO compared to those of what will be an up-and-functioning DE&S-plus. This is sometimes strangely characterised as being match fit. Would that equate to how prepared Chelsea were before thrashing Arsenal 6-0 last week, or to a joiner’s well crafted dovetail joint in a carpenter’s shop? It is not clear to me quite how MoD interprets such a vague phrase.

I turn to the amendment. The Government have acknowledged, in particular in a letter dated 19 March 2014 circulated last week among many of your Lordships by Mr Philip Dunne, Minister for Defence Equipment, Support and Technology, the need for a White Paper and an impact assessment prior to the statutory instrument. Mr Dunne says that the Government recognise that comparison between a putative GOCO and the contemporary performance of DE&S-plus is an essential prerequisite before formally approving commencement of Part 1. However, the Secretary of State has the power to set up a GOCO without the formalities of enabling legislation.

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[Lord Astor of Hever]

My Lords, before the noble and gallant Lord sits down, it may assist him and other noble Lords to know that the Government are prepared to support the amendment in principle and that we intend to bring forward a government amendment, achieving these aims, at Third Reading. I will, of course, respond fully to the issues raised at the end of the debate, in the usual way, but I want to make our intentions clear now.

[Lord Craig of Radley]

My Lords, that is obviously most welcome news and I thank the Minister and the Government for making it clear at this stage. On that basis, I will be prepared to withdraw my amendment. However, for the purposes of the debate, I beg to move.

[Lord Rosser]

My Lords, I speak to Amendments 10 and 11. In Committee, we argued that Part 1 of the Bill should be withdrawn, following the Government’s decision not to proceed with their proposal for handing over defence procurement to a company under contract to the Secretary of State. That decision was made following a lack of bidders. Instead, the Government announced their intention to go down the road of further developing the DE&S organisation in the Ministry of Defence by setting it up as a bespoke central government trading entity with effect from next month.

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[Lord Astor of Hever]

My Lords, the amendments in this group deal with the issue of parliamentary oversight and scrutiny of a future decision to proceed with a GOCO. The question of what information should be available to Parliament has been discussed extensively during the passage of the Bill, and that debate has been carried on this afternoon. As I have already indicated, the Government support Amendment 9 in principle and intend to bring forward a government amendment at Third Reading. We think that Amendment 9 strikes the right balance between ensuring Parliament has sufficient information to consider a GOCO proposal and not setting undue constraints on a future Government, the Defence Select Committee or the commercial process.

Amendment 9 requires the Government to publish an impact statement and White Paper before proceeding with a GOCO. The Government have always been clear that Parliament should be able to debate and consider in detail a decision to proceed with a GOCO in future. We agree that that would be a major decision and that it is right that Parliament should have the opportunity to hold the Government of the day to account for such a decision, should they decide to proceed with Part 1 of the Bill. We have also been clear that we expect any future Government to publish an impact assessment on the options before proceeding with a GOCO and to issue a White Paper setting out those options in detail.

We have discussed the issue of parliamentary oversight and scrutiny of a future decision to proceed with a GOCO in great detail, both in Committee and with interested colleagues, and I am grateful to all noble Lords for their contributions to that debate.

The requirements set by Amendment 9 seem reasonable, as they would impose two statutory requirements on the Secretary of State before an affirmative order to commence Part 1 could be laid before both Houses of Parliament. That would ensure that Parliament had sufficient information to properly debate the GOCO proposal under consideration before Part 1 could be brought into force.

We acknowledge the merit of some form of statutory requirement to provide detailed information on the GOCO proposals in future and that it is reasonable to put such a requirement into the Bill. We did not initially think that a statutory requirement was necessary, but we have been convinced otherwise by noble Lords from all sides of the House. That is an example of what the Members of this House do best—ensuring that legislation is properly scrutinised, and amended where necessary. We will therefore bring forward a government amendment at Third Reading that will make it a legal requirement for a future Government to publish appropriate information on the GOCO options before the order commencing Part 1 is brought forward.

We think that Amendments 10 and 11 go too far. They would do two things. First, they would place in statute the need for a future Government to publish a number of documents before proceeding with a GOCO. Secondly, they would make the affirmative commencement order that brings Part 1 into force subject to the super-affirmative procedure.

I will deal with those two things separately. On the publication of documents, the requirement would be for an impact assessment that covers specific options. This in itself does not present any difficulties; as I said earlier, we are prepared to accept a statutory requirement to produce an impact assessment.

However, proposed subsection (2B)(a)(iii) in Amendment 10 goes too far in that it requires the impact assessment to include any options that may be recommended following consultation with the Defence Select Committee. That is a very unusual provision. It effectively sets a statutory requirement for a future Government to consult the Defence Select Committee on the way forward. Although the Ministry of Defence would, of course, welcome any report that the Select Committee produced on the department’s proposals, we need to be very careful in this House about setting out statutory requirements on a House of Commons Select Committee. The Defence Select Committee already has the power—if it wishes—to look at any aspect of MoD business and I do not think it would be right for us to tell it what it must do. It is for the committee, not us, to decide what its programme of work should be.

On the other parts of Amendment 10—which would require an independent report on the options and the Defence Select Committee to review and report on that report—again I think this is too much. I really do not see what an independent report would add to the impact assessment set out earlier in the amendment, which would already set out the issues and analysis objectively. I do not think it is right to make it a legal requirement for the Defence Select Committee to review such a report. This raises fundamental questions about fettering the ability of a Select Committee to decide its own programme of work and it would be wrong for this House to direct what a Commons Select Committee must do.

Amendment 11 would also make the commencement order for Part 1 subject to the super-affirmative procedure. This would require the Secretary of State to consult on the order, including with anybody recommended by the Defence Select Committee. This would seem completely unnecessary given the requirement to publish an impact assessment and totally inappropriate in relation to a commencement order. Super-affirmative procedures may be appropriate where secondary legislation covers significant policy matters but not in relation to commencement orders. It is not clear what we would consult on given that the order will simply say when the provisions should come into force. Amendment 11 confuses the issues. I accept that there is a need for Parliament to consider any GOCO proposals but I fail to see what would be achieved by the requirements in Amendment 11. It would not provide the House with any more scrutiny of the proposals in question and introduces an unnecessary and overly complex procedure where none is required. I must therefore strongly resist Amendment 11, which I think is both unprecedented and wholly inappropriate.

The noble Lord, Lord Rosser, said that the super-affirmative procedure would be unprecedented for a commencement order. The other circumstances in which super-affirmative procedures are used are very different. There is no precedent for using a super-affirmative procedure for a commencement order. A super-affirmative procedure is relevant only where an order covers significant changes in policy or has significant legal effect. A commencement order does neither.

I thank my noble friend Lord Roper for his support and wise advice during the passage of the Bill. I also thank my noble friend Lord Trefgarne for his support. Given that the Government have made it clear that they support Amendment 9 in principle and that we intend to bring forward a government amendment at Third Reading, I ask the noble and gallant Lord and other noble Lords not to press their amendments in this group.

[Lord Craig of Radley]

My Lords, I thank the Government and the Minister once again for deciding to take away Amendment 9. I also thank very much the noble Lord, Lord Roper, the noble and gallant Lord, Lord Stirrup, and the noble Lord, Lord Levene—who regrettably was not able to be present—for their support and I beg leave to withdraw my amendment.

Amendment 9 withdrawn.

Defence Reform Bill

Lord Craig of Radley Excerpts

Tuesday 25th February 2014 Grand Committee

[Lord Palmer of Childs Hill (LD)]

My Lords, I thank the noble Lord, Lord Tunnicliffe, for raising a number of questions to which I am sure my noble friend will seek to reply. They were interesting issues. I also liked the noble Lord’s comment that it was an admirable attempt at an intractable problem. Indeed, such an attempt is being made, which is really the point. Let us hope it is an issue that is cross-party and of no party, which could be seen as a good thing.

The other interesting point made by the noble Lord was that the words spoken by the Minister will be followed by the industry. That is the point about this debate: the words that are spoken and reported in Hansard are what the industry can see and take confidence from, as well as the amendments before us. I was also grateful that the amendments are not an attempt to wreck the Bill. The noble Lord’s final comment—that they would enliven the debate—was a pleasant way of looking at this matter.

Clause 13 in Part 2 is an important technical advance that attempts to bring sanity to single-source contracts. Clearly, the clause is necessary, and the Motion to remove the clause is purely a technical effort to debate it. The issue in Amendment 18G relates to how one ratifies appointments, which it suggests should be done by a Select Committee. I ask the Minister whether, if any ratification by a Select Committee takes place, it should have to interview the applicants. That would surely be beyond what was necessary and would end up involving a comprehensive interview process, which would be too much. The point made by the noble Lord was about how much influence and power would go to the Secretary of State, rather than to some other body of people. Although the Secretary of State must be allowed to have influence, he should not be the person taking the real decision as to who is supported.

When the Minister replies, I hope that she will also deal with a question not raised by the noble Lord, Lord Tunnicliffe. Should the Single Source Regulations Office be the sponsoring department? Should the sponsoring department be the MoD? What about the Department for Business, Innovation and Skills? I have raised this matter with the Minister on other occasions, not only in this context. Here we have a department, the Department for Business, Innovation and Skills, whose raison d’être is to sell and encourage business and industry, but the brief of the Ministry of Defence is also to engage in contracts, selling and so on. Indeed, that ministry sells overseas and I often wonder why we do not look holistically at how we deal with selling this country’s products. I wonder why, in the context of this amendment, the sponsor of the SSRO should be only the Secretary of State for Defence. Why should it not also or instead be the Secretary of State for Business, Innovation and Skills?

[Lord Craig of Radley (CB)]

The noble Lord, Lord Tunnicliffe, has raised in a variety of ways the issue of the independence of the SSRO from government. I raised one further point on that at Second Reading. I got a reply, but I was not absolutely confident that it provided the right answer. The point I made was that the SSRO has an interest in value for money, but so has the Treasury throughout government. I asked to what extent the SSRO stands free of, or is supervised by, the Treasury. For the record, it would be helpful to have that point covered once again. If I remember correctly, I got a very full answer from the Minister, the noble Lord, Lord Astor of Hever, but I was not absolutely happy that it gave a feeling of the pure independence of the SSRO from the Treasury.

[Baroness Jolly (LD)]

My Lords, I thank noble Lords for their comments at the beginning of this fourth day in Committee. In particular, I thank the noble Lord, Lord Tunnicliffe, and commend him for his preparation for the scrutiny in this Committee stage. I apologise in advance to noble Lords because some of my earlier speaking notes are quite lengthy, but they get shorter. The purpose of the length is that we need much of this on record.

Clause 13 is at the heart of the reforms to single-source procurement. It establishes the Single Source Regulations Office, a small, arm’s-length body responsible for keeping the new framework under review, monitoring adherence and providing expert determination between the MoD and single-source suppliers. It is therefore essential to the success of these reforms. Clause 13 also establishes in law the overriding aim of the SSRO to assure that good value for money is obtained in government expenditure on qualifying single-source defence contracts and that defence suppliers are paid a fair and reasonable price under those contracts.

The creation of an independent body is absolutely central to the success and longevity of the framework. I cannot say this too strongly. The purpose of this body is to be independent and transparent, thus giving confidence to both parties who need to play in this area. It was a key recommendation of the independent review conducted by the noble Lord, Lord Currie. The SSRO will replace the existing Review Board for Government Contracts, which, as the noble Lord, Lord Currie, identified, has, through no fault of its own, failed to evolve to reflect changing circumstances, largely because either party can block any change that it regards as contrary to its own interests.

Clause 13 brings into effect Schedule 4, which establishes the governance structure of the SSRO. In this we have closely followed guidance published by the Cabinet Office on executive non-departmental public bodies and have considered existing governance arrangements for similar bodies, such as Monitor. So we have not started with a blank piece of paper and, as the Committee will see, with the following key characteristics of the SSRO, the structure we have created is in common with other similar public bodies. It has a separate chair and chief executive and a board which has a majority of non-executive directors, which is aligned with best practice in the Financial Reporting Council’s UK Corporate Governance Code and Cabinet Office guidelines. Non-executive members of the SSRO should be appointed for a period of between three and six years to assure a staggered process of appointments to the key positions. There will be a process that allows the Secretary of State to remove or suspend a member from office on the grounds of failure to carry out his or her duties, incapacity, such as ill health, or misconduct, which rightly follows Cabinet Office guidance on the creation of public bodies. The SSRO will have the ability to appoint its own employees, which is consistent with Public Bodies: A Guide for Departments, produced by the Cabinet Office; and, in accordance with the Cabinet Office’s guidance on good corporate governance in executive NDPBs, the SSRO’s committee structure will be the body that makes key binding determinations, including where there is an appeal from one of the parties to a qualifying defence contract. We have listened to industry requests in this area, and have agreed that committees can contain members who are not employees or members of the SSRO.

The SSRO will also have separate responsibilities to the Secretary of State, the Auditor-General and Parliament. These, which are set out in Schedule 4, include the provision of annual accounts which are consistent with international finance reporting standards, which will be audited by the National Audit Office. These accounts will be prepared between three to six months of the end of the financial year. An annual report on its activities must be provided by the SSRO to the Secretary of State, who in turn will lay the report before Parliament.

As the sponsoring department of the SSRO, the Secretary of State will make payments to the SSRO to finance its operations. This is in common with Cabinet Office guidance on the funding of ENDPBs. There will be a framework agreement established between the MoD and the SSRO that sets its budget, in accordance with HMT’s guidelines in Managing Public Money and performance targets. The SSRO will be jointly funded by the MoD and industry, but we have agreed with industry that the MoD will pick up its costs over the first three years, as it is established and until we determine its precise annual running costs. The SSRO will be allowed to borrow money only on a temporary basis up to an overdraft limit set by the Secretary of State. There may be occasions where the SSRO has a higher number of adjudications or determinations that it is administering, where it may require additional resources to meet its objectives in a timely fashion.

We have given the SSRO the ability to pay pensions to its non-executive members. This is not because we intend to pay a pension to every non-executive member the SSRO appoints; rather, we have done this to give the Secretary of State the flexibility to recruit non-executive members from both the private and public sectors who may have existing pension arrangements. Other elements of Schedule 4 ensure that the SSRO will be a body that is subject to the Freedom of Information Act 2000, allow the parliamentary commissioner to investigate the SSRO, and ensure that its staff are not civil servants.

This clause is therefore crucial to the overall establishment of the SSRO and the functioning of the new framework. The SSRO will, over time, become an independent expert in defence single-source pricing, ensuring that we do not need to wait another 45 years for this framework to be reviewed again. It is therefore crucial that this clause is retained in the Bill.

Amendments 18G and 18H revolve around a concern, primarily expressed by industry, but also by the noble Lord, about the independence and impartiality of the SSRO. I assure noble Lords that we are committed to ensuring that the SSRO will be both independent and impartial. The credibility of the new single-source framework rests upon this. For example, the SSRO can act as an independent adjudicator in the event of disputes between parties and it is the appeal body to which industry can refer if we apply a civil penalty to it. Perhaps even more significantly, it annually recommends the profit rate and recommends changes to the framework as part of the quinquennial review process. It is the guardian of the new framework and its impartiality is at the core of the dual aims under Clause 13 of ensuring a fair and reasonable price for contractors and value for money for the Government.

If the SSRO was perceived as being partial, this would create great difficulties. If the perception was that it was too biased towards the Government, shareholders could decide that the defence sector was no longer worth investing in and our suppliers could be driven to leave it. If the perception was the other way—as too biased towards our suppliers—we would seek to change the framework entirely or we would exempt our contracts from it and thus lose the protections we are establishing in this Bill. Neither of these outcomes serves either the MoD or our single-source suppliers. It is the need for independence and impartiality that has led to our desire to set up the SSRO in the first place. The current framework requires consensus to change. This has meant that for 45 years, any change that one side has felt puts them at a disadvantage has been blocked. This is the principal reason why the old system has remained frozen in time for so long. Consensus will not serve us. The alternative, a statutory framework determined entirely by the MoD, would always be resisted by industry. There would be a risk that over time the framework would become steadily more one-sided and that industry would be driven out of the sector, so this option is also not desirable. What we need is an independent body, namely the Single Source Regulations Office.

Defence Reform Bill

Lord Craig of Radley Excerpts

Wednesday 5th February 2014 Grand Committee

Moved by

[Lord Craig of Radley]

12: After Clause 6, insert the following new Clause—
“Immunity for contractor
(1) The Secretary of State may by Order made under section 2 of the Crown Proceedings (Armed Forces) Act 1987 revive section 10 of the Crown Proceedings Act 1947 for the purposes of providing immunity for a contractor.
(2) Before making an order in accordance with the provisions of this section, the Secretary of State shall publish and lay before Parliament a report on the impact of making such an order on—
(a) the procurement of defence equipment and modifications and training facilities including material for urgent operational requirements; and(b) the possibility of risk to the contractor of challenge, whether under the Human Rights Act 1998 or under any other statutory provision, arising from such procurement, whether at the time of the procurement or at any future date.”

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[Lord Craig of Radley (CB)]

The House has debated the issue of Crown and combat immunity a number of times in the past eight months. The Minister has shared with the House concerns that the MoD and the Government have about problems raised by legal challenges of decisions made in the heat of battle or of decisions made in the past about equipment, training or preparations for operations in which, regrettably, individuals have been killed or seriously injured. In the debate on 7 November last, the Minister said that,

“the Ministry of Defence has been grappling with rapidly increasing numbers of legal claims arising from operations, together with escalating costs, largely as a result of these legal developments and the increasing willingness of individuals to litigate”.—[Official Report, 7/11/13; col. 413.]

He rightly stressed that no intention to reinstate any form of Crown or combat immunity should affect any cases already started, and nothing that I say or propose is directed at affecting such claims.

My particular reason for raising the issue of contractor immunity is straightforward. The experience of the past few years, particularly but not solely in the shadow of the Iraq and Afghan operations, is that courts and coroners have taken to raising issues about the suitability or modification states of equipment. I said at Second Reading:

“My fear is that this legal probing, basking in the certainty of 20:20 hindsight, will extend to questioning why original designs or modifications which subsequently proved unable to match the opposition’s capability were allowed to persist or be deployed or, alternatively, why additional steps had not been approved though the technical capability existed. Such concerns should be borne in mind in any changes to responsibility for defence procurement. Indeed, they should add further stimulus to taking positive action to reinstate immunities in a field of activity where acceptance of risk to life has to be the norm if our forces are not to be gravely neutered by legal hindsight”.—[Official Report, 10/12/13; col. 757.]

My amendment is designed to probe the case of contractor immunity and how and to what extent it might be applied. It proposes one particular approach but I do not suggest that it is the only or necessarily the most appropriate one. The Committee will have noted that Clause 3 would appear to provide a company that is or has been a contractor with unlimited MoD cover for any financial claim that is brought in a court in the UK against the company. However, this immunity is circumscribed by requirements in subsections (6) and (8) of this clause. Bearing in mind the frequency of claims and findings involving defence contractors, it seems that this sweeping, broad-brush approach should be further considered in the light of current experience. Would it not give rise to a good deal of cross-claims—no doubt of value to the lawyers involved—between the MoD and the delinquent company, possibly at considerable additional expense to the taxpayer and the Defence vote?

My probing amendment considers an issue of immunity away from the immediate battlefield—the clear domain of combat immunity—in an area of defence activity, notably procurement, that has led or might lead to legal claims by those injured while on duty or by the families of deceased service personnel. The Minister will recall in the case of the loss of RAF Nimrod XV230 in Afghanistan in 2006 that the review found that a number of individuals, including those in service, civilians and contractors, had been so seriously at fault as to bear responsibility for the technical failure that caused the loss of the aircraft and all those on board. Other more recent examples of aircraft accidents will be known to the Minister and other noble Lords, where the absence or incorrect fitting of specific equipment contributed to disaster. The coroner’s findings in the tragic death of a Red Arrow pilot, reported in the past week, is one of these.

With Crown immunity available to the MoD, as it was through much of my service career, service personnel or their families were entitled to compensation judged by the criteria that unless the MoD could prove that the injury or death was not due to service, the set rate of compensation would be awarded. This approach to proof was overturned by the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005. Now it must first be established that the injured or deceased were on duty at the relevant time before they are considered for any award or compensation.

This is a fundamental change in the burden of proof, in a climate where awards in civilian life appear to far outstrip those available to the Armed Forces. The Committee may recall the case of the typist with repetitive strain syndrome being awarded a couple of hundred thousand pounds in compensation. This has led to a growing number of claims being faced by the MoD in the recent past. Of course comparisons with civil awards can be misleading because in addition to a capital sum, guaranteed income payments, tax-free for life, may be awarded to those service men or women who are most seriously injured. Even allowing for that and for less extreme levels of civilian awards and for the recent increases in compensation for the most seriously injured service personnel, it is still the case that without court actions, service awards do not come close to matching those awarded to civilians. Excessive reliance is placed on the additional support of service charities. It is no wonder, therefore, that there has been an increase in claims against the Ministry of Defence. These might have been even greater if I, with the help of Lord Morris of Manchester, had not tabled and moved an annulment Motion to the Transfer of Tribunal Functions Order 2008, which persuaded the then Government to retain rather than abolish the dedicated tribunal that adjudicates on pension and compensation disputes for Armed Forces personnel.

For these reasons, I urge the MoD to be sure to put in place more representative entitlements if they go down the route I am proposing of providing immunity for the contractor in a GOCO set-up. At the heart of this is the fact that the training and operations of the Armed Forces cannot be totally risk free. Immunity coupled with more representative compensation where death or serious injury occurs is a better compromise. But because Crown immunity is now so circumscribed by statute in the Crown Proceedings Acts mentioned in the amendment, I have proposed a possible way forward if the concept of some specific contract immunity were to be favoured. Perhaps there is a better alternative, and I look forward to the Minister’s response. I hope that he will at least be able to reassure the Committee that the Government mind is not closed to the reintroduction of immunities at some future date in a manner that caters for both peacetime and conflict operations. The Armed Services Act renewal in 2016 would seem to be the right vehicle for making such a move. I look to the Minister for some reassurance on that since it could prove to be a more comprehensive approach than the one in this probing amendment. I beg to move.

[Lord Astor of Hever]

My Lords, I thank the noble and gallant Lord, Lord Craig, for his amendment. It enables the Committee to consider this important issue, which he also raised at Second Reading. Although the amendment appears to be addressed at giving the GOCO contractor immunity from liability for mistakes, I believe that the real intent behind it is to debate the important issue of combat immunity so far as it concerns our own service personnel. The noble and gallant Lord is absolutely right to identify the matter as one with profound implications for the conduct of military affairs in the future.

With that in mind, let me start by saying something about the recent Supreme Court case known as Smith (No 2). The outcome of the Supreme Court case in the conjoined cases of Smith and others v MoD, Ellis v MoD, and Allbutt and others v MoD has created a new situation of which the implications are not yet clear. These are all tragic cases of deaths on the field of combat in Iraq. The Government have every sympathy with the claimants but are obliged to defend these claims on important grounds of legal principle. Briefly, the argument of the claimants is that while these tragic incidents did indeed take place in the course of combat, combat immunity should not apply because the incidents can be traced back to previous decisions about the provision of equipment and training to the soldiers which could, they argue, have protected them more effectively.

The Government are concerned that this argument could be applied to virtually any claim to which the principle of combat immunity has hitherto been understood to apply and if accepted could have the effect of opening up the conduct of combat to the scrutiny of the courts after the event. This in turn could have seriously debilitating effects on the decision-making of commanders on the ground which could in the long run seriously impair this country’s military effectiveness. They therefore sought to have the claims dismissed by the courts on the grounds that combat immunity applied. As the Committee is aware, the Supreme Court declined to do so. This leaves the claims to be decided by the lower courts after a full trial in each case. Ministers and the military chain of command have been clear that commanders and other military personnel, at whatever level, who make reasonable decisions in good faith in the course of operations will receive the full backing of the services and the Government. It is important to be clear that there has been no decision by the courts that would suggest that they would impose liability in such circumstances.

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In conclusion, we have had a full and interesting debate on this issue. In the light of what the noble and gallant Lord said, I ask him to withdraw his amendment.

[Lord Craig of Radley]

I thank the Minister for responding. I am sorry that there was less interest in this matter than I thought the Committee might have taken. Nevertheless, the points that the Minister made are extremely important and will, I am sure, be read by many. There is no doubt in my mind that leaving the situation as it is is asking for further trouble. I hope that that point is well and truly taken on board in the Ministry of Defence. At this stage, I beg leave to withdraw the amendment.

Amendment 12 withdrawn.

Defence Reform Bill

Lord Craig of Radley Excerpts

Monday 3rd February 2014 Grand Committee

[Lord Bach (Lab)]

My Lords, I shall not speak about the advantages or disadvantages of a GOCO; I remain fairly neutral on the issue. I have listened with great interest to the very good speeches that we have heard so far on this clause stand part debate started by my noble friend Lord Rosser. What concerns me is the point about an affirmative order being somehow a solution to this problem.

I will not speak with my ex-Minister for Defence Procurement hat on at this stage, although there is plenty that I could say and would like to say. I am concerned about statutory instruments being used in Parliament in both Houses as a way of holding Governments to account. My experience is that orders, whether negative or affirmative, are useful and the debates that follow from them are often vital when legislation is eventually brought into effect. My concern is that they are no way for Parliament to stop something happening that should not happen.

I speak from experience. This is not a boast but I am one of the few Members of this House who has successfully won a fatal Motion on an affirmative order. There are others on all sides of the House, but it is a very rare event. It happened a few years ago, on a completely different subject from this one, to legislation which required an affirmative order but was resisted. The House voted on that occasion by a very small majority not to pass the affirmative order. The consequences of that for the cause that I was espousing were probably worse than if I had not won that vote. The Government decided that they would do absolutely nothing about the fact that the affirmative order had been voted against and so the previous position then applied. It was a worse position than the one I was trying to get and on which the House had supported me. Since then, forgive me, I have been slightly sceptical—even cynical, sometimes—about how effective opposing affirmative orders can be. We know that we can oppose them, regret them or just have a debate on them, whichever either House decides to do, but the effect is nearly always the same: the Government get their way. The primary legislation is there and it is extremely hard—often impossible—even if the primary legislation needs to be amended by the affirmative order, for that to happen.

All I am saying in this debate is please do not choose an affirmative order as a way to get around this issue. Frankly, once you have passed legislation that includes a GOCO, if that is what the House decides to do, it will be extremely difficult, if not impossible, for either House of Parliament to change the position.

[Lord Craig of Radley (CB)]

My Lords, I shall speak briefly to the amendments. I look at the matter from the point of view of the user, the Armed Forces, and what is in it for them.

Nowadays, the Armed Forces will have much more say over the amount of money that may be spent on their equipment, and therefore they may take more of an interest in the detail of the procurement side than was true in my day. Nevertheless, it is important that they have confidence that whatever system is going to procure their equipment has general support throughout the country and throughout government. At the moment we have two propositions, neither of which seems to be making good headway. The GOCO has certainly made no headway and it remains to be seen how well the DE&S+ will go—I even have doubts about that—but, of the two, I prefer it the GOCO.

However, dealing with the amendments, I find a good deal of attraction in Amendment 25. It brings the super-affirmative approach to the issue and is the one that I would favour.

[Lord Davies of Stamford (Lab)]

My Lords, I was the last defence procurement Minister in the previous Government. It is too early to make definitive judgments about how well-based were the projects for which I was responsible because some of them were quite long term. As far as I know, most of them are doing well and are on track and on time. They include the A400M, the Typhoon Tranche 3, the Chinook contract—where the Government, sadly, cut the numbers from 22 to 12 —the Puma upgrade, the Scout vehicle and so on.

However, I inherited a number of contracts which were the subject of substantial cost and time overruns. They were originally signed in the late 1990s. I will not make party-political points by saying exactly when they were signed now because otherwise you will think that I am making a party-political speech, which I certainly do not intend to do. Those errors were based on a fundamental mistake, which is to think that there is one simple formula for defence procurement. There have been arguments for many years, for generations, about whether you should have cost plus, competition or fixed-price contracts. The answer is that all these formulas are appropriate in certain circumstances. However, the great mistakes were made on projects such as Astute and Nimrod, which involved new technology and new developments—a new generation of reconnaissance aircraft in one case and hunter-killer submarines in the other.

It was a fundamental mistake to think that those procurements could be conducted on a fixed price because, when you are at the frontiers of technology—I said this on Second Reading—by definition you do not know what problems you are going to encounter and how much time and money will be needed to resolve them. If you ask a contractor to come up with a fixed price it will either be crazily high to cover all possible risks to himself or, more likely, if he thinks that being a national provider he is going to get the contract anyway, he will come up with an unrealistically low price, knowing that he can renegotiate more favourable terms once the Government and the MOD are committed to that contract because ultimately the Government have to have that capability delivered.

That is the phenomenon we suffered from with those two disastrously-conceived projects, although the capability was absolutely necessary. It was a great mistake for the Government to get rid of the MRA4 when they came into power. The Astute programme has continued and is delivering results, and I am very glad about that. The MRA4, however, was a great error. If you have a first of class of a major aircraft or naval vessel—a major platform—an absolute rule is that that is inevitably going to be a prototype. You cannot actually call it a prototype because you cannot build a combat aircraft for £100 million, or a Type 45 destroyer for £1 billion, or an Astute class submarine for £1.2 billion or £1.5 billion and then throw it away. So it is not going to be a prototype.

You are going to make some mistakes in building it the first time round. You will need to make amendments and changes which you had not originally foreseen and these will all add to costs and time. The only solution is to have a version of cost plus during that period for the first of class. Subsequently, when you have an idea of the technical issues and have resolved them, you can refine the thing down and ask for a fixed price. It must be a sophisticated version of cost plus and the formula that I found most useful—we have got it now for the Astute programme—is a target price with an incentive for coming in under the target price; a share of the over-run if it is above the target price; and a completely open book policy so that there is a genuine sense of teamwork between customer and supplier. Those formulas can work. One has to be quite flexible about this and not believe that there is some perfect, platonic solution to defence procurement.

Armed Forces: Widows’ Pensions

Lord Craig of Radley Excerpts

Tuesday 21st January 2014 Lords Chamber

Asked by

[Lord Craig of Radley]

To ask Her Majesty’s Government what is the estimated annual cost of allowing all armed forces widows, who choose to re-marry or co-habit, to retain and not forfeit their existing service widow’s pension in line with the provisions in the Armed Forces Pension Scheme 2015.

[The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con)]

My Lords, first, I am sure that the whole House will wish to join me in paying tribute to Captain Richard Holloway of the Royal Engineers, who was killed while on operations in Afghanistan on 23 December, last month. My thoughts are also with the wounded, and I pay tribute to the courage and fortitude with which they face their rehabilitation.

The cost of not suspending pensions on remarriage or cohabitation to spouses who survive members of the 1975 Armed Forces Pension Scheme, whose deaths were not attributable to service, is estimated to be in the region of £250,000 per annum; the cost is estimated to be £70,000 per annum in relation to the War Pensions Scheme. Survivors of those enrolled in the current 2005 pension scheme and the new 2015 scheme, when implemented, will retain pensions for life regardless of personal circumstance.

[Lord Craig of Radley (CB)]

My Lords, I associate myself with the Minister’s remarks about Captain Holloway. I also declare an interest as a vice-president of the Forces Pension Society and a member of the Armed Forces Pension Scheme 1975.

Is the Minister in favour of justice for widows—those widows who are trapped or locked into a scheme which is unfair and discriminatory compared with later schemes, which allow the survivor pension awards to be retained for life? Is this not totally counter to the Armed Forces covenant, which is so strongly supported by the Prime Minister and all in the Government? Will Her Majesty’s Government move quickly to remove the discrimination in the Armed Forces Pension Scheme 1975 and the War Pensions Scheme, bearing in mind that there would be no significant cost to the taxpayer, given the Minister’s figures and making allowance for the policing, both intrusive and insensitive, and the complex administration of these schemes?

[Lord Astor of Hever]

My Lords, there are 10 categories of widow or widower under the Ministry of Defence pension and compensation schemes. I have discussed this very complex issue with the noble and gallant Lord. We both agreed that I should place a letter of explanation in the Library setting this all out, which I have done this afternoon.

Defence Ministers have enormous respect for the Forces Pension Society and for the War Widows Association of Great Britain and will continue to work very closely with both of them. Successive Governments have reviewed pensions for life, but changes cannot be taken in isolation from other public sector schemes, including those for the NHS, teachers, police and the fire service, which have similar rules in place for their older schemes.

Afghanistan: Interpreters

Lord Craig of Radley Excerpts

Tuesday 10th December 2013 Lords Chamber

[Lord Astor of Hever]

My Lords, we review the situation every six months. Obviously the level of intimidation, which is relatively low at the moment, is an important factor that would be considered.

[Lord Craig of Radley (CB)]

My Lords, in considering whether to grant asylum to an Afghan interpreter, does the fact that he has a family or is not married come into the equation?

[Lord Astor of Hever]

My Lords, I can assure the noble and gallant Lord that it does not. Eligible staff will be allowed to bring their immediate family: that is their spouse—one only—or partner, their minor dependent children under 18 years-old and that spouse. There is no limit on the size of a single family provided that the criteria are met.

Defence Reform Bill

Lord Craig of Radley Excerpts

Tuesday 10th December 2013 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, I do not have much sympathy for GOCO defence procurement. My doubts have been strengthened by the lack of genuine competition and therefore interest from the private sector. The Government are right to pause this approach, but I remain sceptical that the pause and the changed approach announced by Ministers will resolve the fundamental problems affecting advanced platform and weapons systems procurement.

Those of your Lordships who have been involved with defence issues over the past 50 years and more will recall that this is but the latest of numerous attempts to solve difficulties in defence procurement. When the Ministry of Supply was abolished in 1959, defence procurement passed initially to the three single-service ministries until the Ministry of Defence took overall responsibility in 1964. Before that there had been some serious overspends on equipment.

In 1961, the Gibb-Zuckerman report recommended a common, improved process of milestones past which every major project would have to proceed. By the mid-1960s further spectacular cost overruns triggered the establishment of a development cost steering group, chaired by a Mr Downey. The group made further changes but few of these efforts were any more successful. At a time when the Warsaw Pact seemed at its most dangerous, the MoD was inevitably ambitious in its requirements. The three services, the research establishments and industry erroneously felt that technical and integration problems, only revealed during full development, could be resolved—maybe so, but at much increased cost and timescales; and occasionally never, leading to cancellation of a major programme after much time, effort and money had been spent. That is all too similar to experiences 50 years later in 2010, I fear. Cost-plus was much in vogue.

By the early 1980s, exasperated by what he felt was a too-close relationship between the services and their industrial suppliers, the then Defence Secretary, Michael Heseltine, now the noble Lord, Lord Heseltine, decreed that there must be no more fraternisation between the two sides. He also invited Peter Levene, now the noble Lord, Lord Levene, from private industry to fill a new appointment of Chief of Defence Procurement in 1985, as we know. Improvements came: cost-plus was out, competition was in, but initial better outcomes were not sustained after about 1991. More recently, we have seen and forgotten the smart procurement of 1998, which collapsed due to inadequate funding of defence, and was later renamed smart acquisition, but I fear was no better funded.

Concurrently, overambitious, rushed and disruptive reorganisation of procurement and logistics responsibilities and downsizing caused distortion, much frustration and dismay among staff involved. Mr Bernard Gray’s 2009 study of this generic problem recommended that 10-year rolling defence budgets and 20-year equipment budgets published to Parliament should be adopted—no signs of that. The nearest—and minimalist—has been the Prime Minister’s assurance that the equipment budget would increase by 1% after the next election. This is the basis for the affordable equipment programme announced last year for the period 2015-16 through to 2020-21 but, as the NAO has commented, this does not and will not offer a definitive view of the affordability of the equipment plan, as more time and experience will be required to assess its worth. Moreover, it is far from clear whether this raise for equipment is additional to the whole defence budget or will have to be offset by reductions elsewhere in MoD spending, as the Chancellor proposed only last week. Of course, there is a general election in 18 months so nothing can be definitive.

I have only briefly itemised some of the attempts to do better in procurement over the past 50 years. Much more could be said. Of course, it is right to try to do better, but sometimes the MoD seems to be the whipping boy of Whitehall over poor procurement, and cost and timescale overruns. Other departments with much less challenging requirements seem to suffer major cost and timescale overruns without being subject to such excoriating criticism—for example, the NHS’s repeated nationwide computing failures; the National Offender Management Service’s information system being 400% over budget; the tenfold rise in the cost of the Scottish Parliament; Transport for London modernisation, with billions of pounds underestimated; the numerous PFI schemes that have left the taxpayer billions of pounds worse off than before these wheezes were introduced. The successful Olympics bid, which has already been mentioned, started off at £2.9 billion, only to finish close on £9 billion—and the hard-pressed Armed Forces saved the day for the whole enterprise when G4S messed up. Until—and do not hold your breath—Governments of the day, with opposition support, are prepared to approve the sort of decade-long, rolling budgets recommended by Bernard Gray, and to stick to them, I fear that budget aspiration rather than reality will remain the quicksand basis of government procurement planning and costing.

A further and often overlooked issue is the political, and sometimes party-political, pressures on Ministers to adjust programmes to sustain industrial capacity or employment. Should such additional costs be totally met from within the defence budget? Some form of Treasury contingency funding might be made available when such adjustments to programmes are not for military or technical reasons. Further costs, which are hard to quantify in advance, will arise within multilateral programmes and be beyond the control of the Ministry of Defence. In over 50 years the right answer has evaded all; no silver bullet has been found. It should be no surprise, unless the Government and Treasury adopt a totally different approach, if it were to remain unresolved in the next 50 years. Meanwhile, I shall watch with interest how the latest scheme matures.

There is much in the Bill about the Single Source Regulations Office, enough to emphasise its importance for obtaining value for money. It is said to be free of government but where does it stand with the Treasury, which also has authority and interest in value for money? Will the SSRO be free from Treasury second-guessing, or will it merely be a further bureaucratic stage when dealing with single-source contractors?

Turning to concerns expressed in your Lordships’ House and elsewhere about the legal erosion of our national fighting power, I fear that this may extend further than the battlefield and into the field of procurement and technical support. When I was flying Vulcan and Victor bombers, only the two pilots had ejection seats. The rear crew members had to rely on parachutes if their aircraft had to be abandoned in flight. Fitting ejection seats for all at the design stage was deemed technically very complex, with unacceptable time delays into service, and costly. At various times, following tragic fatal air accidents of these aircraft on training flights, the possibility of fitting ejection seats for all crew members was re-examined. Once again, cost, complexity and the loss of airframes from the front line while modifications were installed were deemed excessive in any attempt to reduce the relatively low-frequency risk of a similar future air disaster. Indeed, I am not aware that any claims by relatives were made in those days—probably Crown immunity then would have ruled them out—although the additional life insurance premium to cover flying risk was largely met by the ministry.

Today, when coroners and courts are keen to investigate the background to individual service deaths, there is a growing tendency to question why particular modifications or kit which could have been made available and might have averted the individual’s death were not available. Such an approach cannot take full and proper informed account of the complexities of the design or later modification, the downtime to carry out the necessary work and the remaining in-service life of the aircraft fleet or other equipment involved. Additional cost, too, of course arises. Is it better to pay that much to ameliorate one risk of catastrophe over, say, a few years of remaining in-service life, and not be able to afford to do more for other potentially higher and longer-lasting risks?

My fear is that this legal probing, basking in the certainty of 20:20 hindsight, will extend to questioning why original designs or modifications which subsequently proved unable to match the opposition’s capability were allowed to persist or be deployed or, alternatively, why additional steps had not been approved though the technical capability existed. Such concerns should be borne in mind in any changes to responsibility for defence procurement. Indeed, they should add further stimulus to taking positive action to reinstate immunities in a field of activity where acceptance of risk to life has to be the norm if our forces are not to be gravely neutered by legal hindsight.

I turn to the reserves. There is nothing in the Bill that would expedite the call-out of individual or small cadres of reservists, whose earliest possible availability is essential to the preparation and mounting of an intended operation. With greater reliance on ready Reserve Forces, the current statutory requirement that ministerial approval has to be obtained before the call-out of any reservists needs to be reviewed. Delegated ministerial authority to service chiefs for small and key critical reserve elements would ensure that those individuals who are already at high readiness would be immediately on task when required. What assurance can the Minister give that such delegation is covered by current legislation, and perhaps by Clause 45, or should it be a matter for amendment? With a policy to rely more than ever on the employment of reservists alongside Regular Forces, their early availability is a key requirement and must be assured in all circumstances.

Armed Forces: Legal Challenge

Lord Craig of Radley Excerpts

Thursday 7th November 2013 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, I very much welcome the opportunity that the noble Lord, Lord Faulks, has given the House to debate this topic, and I commend strongly his excellent speech.

For all my 40 years of service, service discipline, enforcement and review were the responsibility of the chain of command. Since then, service legal arrangements have changed to accord more closely with human rights legislation and the view that misbehaviour and crimes in the services should largely be judged independently of that chain of command. The services have adapted, but what concerns me more is that the Armed Forces Act and human rights legislation are potentially incompatible.

Only service men and women effectively contract with the state to make the ultimate sacrifice if required, backed by the Armed Forces Act to enforce discipline and obedience. No other public servant is placed in this position. To disobey a lawful command, even one that for operational reasons may place an individual at serious risk of injury or even death, is a criminal offence under Armed Forces law. But today or in the future will the commander be at risk of a charge under human rights legislation? I acknowledge that this has not yet happened and that today’s commanders have been given assurances that the MoD would give them full support if ever it did. As has been mentioned, the Minister sought to reassure me, in answer to my topical Question following the Supreme Court judgment last June. He said:

“I do not expect it to be open to a soldier facing a charge of failing to follow orders to argue that his human rights trumped those orders”.—[Official Report, 25/6/13; col. 657.]

However, could it not go the other way, when protracted legal hindsight is brought to bear on the heat and urgency of operational decisions?

In 1998, in concert with Lord Campbell of Alloway, I tabled amendments on Report and at Third Reading to exclude the Armed Forces from the Human Rights Bill. While acknowledging that the Armed Forces were a public body as defined in the Bill—now the Human Rights Act 1998—we argued that special considerations applied to Armed Forces personnel, who may be, and often are, treated differently by legislation. As I said:

“There are offences of conduct prejudicial to good order and discipline, of disobeying a lawful command, and so on, which have no direct parallel in civilian life. These are enacted because they underpin and are vital to the operational effectiveness and discipline of the Armed Forces. Without further elaboration, the conclusion is self evident. The Armed Forces may be, and often are, treated differently by legislation”.—[Official Report, 19/1/98; col. 1354.]

The fashion of the time—remember we were not then engaged in major expeditionary operations overseas and the services were almost sidelined in the public mind—was to believe that civilian-style management rather than military-style leadership was what the services should adopt, particularly in peacetime. At Third Reading of the Human Rights Bill, the Lord Chancellor sought to assure the House. He said that,

“the Secretary of State for Defence takes the view that the Bill raises no issues which are special to the Armed Forces”.

Later in his speech he said:

“I urge your Lordships to be of the view that the convention is a flexible instrument. It poses no threat to the effectiveness of the Armed Forces”.—[Official Report, 5/2/98; col. 768.]

Since then numerous cases against the MoD have been brought under that Human Rights Act. The Lord Chancellor’s reassurances have been frittered away, most spectacularly by the way that the Supreme Court findings last June were publicised. The court’s view—albeit a minority one—that such cases were not suitable for resolution by a court seemed to be a ray of hope that could help inch the problem back to greater realism. The noble Lord, Lord Faulks, quoted the wording of the minority view, and it is worth repeating. It stated that,

“the approach taken by the majority will in my view make extensive litigation almost inevitable after, as well as quite possibly during and even before, any active service operations undertaken by the British army … ‘war cannot be controlled or conducted by judicial tribunals’”.

Should that realism be translated into new legislation? There is a proper reluctance in some quarters not to try to make changes because of the variety of cases that are sub judice and because today’s service men and women might be encouraged to believe that their rights were being eroded. Nevertheless, I remain concerned that there is a need to be proactive, not to await events only to find that the problem has become far more difficult and disruptive to the effective command and control of forces and personnel in operational situations.

The changes since the Human Rights Act 1998 and the assurances given then and the recent Supreme Court ruling show that this issue still has legs and will run and run unless remedies are devised and provided. This said, what proactive approach might be taken? The Policy Exchange think tank, which has been mentioned several times, argued in its study entitled The Fog of Law that such legal mission creep could paralyse the effectiveness of the military. It came up with seven options for tackling this problem. I floated two, Crown immunity and combat immunity, in my topical Question last month:

“Will Her Majesty’s Government consider new legislation to define combat immunity? ... Could this be incorporated in the Defence Reform Bill now in passage through Parliament?”.—[Official Report, 23/10/2013; col. 1003.]

Following further discussion, I now accept that this is not the right moment for primary or secondary legislation, although we should not ignore the public’s present strong support for the Armed Forces. After withdrawal from Afghanistan, and in the absence of other major overseas adventures, that support will surely fade.

The quinquennial Armed Forces Bill, due in 2016, would, however, provide a vehicle for further legislation, giving time for preparation and avoiding prejudice to current sub judice cases. A proactive game plan must be the Government’s approach. There needs to be a well resourced team charged with instigating study in academia and elsewhere to prepare the way. Waiting until something worse turns up before moving would be wrong and a deplorable failure of political and military leadership. I hope that the Minister will be robustly proactive tonight.

Armed Forces: Human Rights Legislation

Lord Craig of Radley Excerpts

Wednesday 23rd October 2013 Lords Chamber

Asked by

[Lord Craig of Radley]

To ask Her Majesty’s Government what steps they are taking to review and clarify the application of human rights legislation to members of the Armed Forces when they are based or engaged in operations overseas.

[Baroness Anelay of St Johns (Con)]

My Lords, the clock has stopped. I say to colleagues who are trying to leave the Chamber that, on this occasion, we shall maintain dignity by remaining in our seats while the Minister responsible for defence makes an announcement about our armed services.

[The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con)]

My Lords, I am sure that the whole House will wish to join me in offering sincere condolences to the family and friends of Lance Corporal James Brynin, Intelligence Corps, of 14 Signal Regiment (Electronic Warfare), who was killed on operations in Afghanistan recently. My thoughts are also with the wounded, and I pay tribute to the courage and fortitude with which they face their rehabilitation.

Turning to the Question, although the Government have already expressed their disappointment with recent judgments in this area, both in the domestic courts and at Strasbourg, many aspects of the relevant law continue to be uncertain. In view of the importance of the principles at stake, the Government will defend their position vigorously in the key cases still before the courts.

[Lord Craig of Radley (CB)]

My Lords, why wait? Is there not now sufficient experience of the impact of legal hindsight when passing judgment on the activities of personnel engaged in operations or based overseas? Should not the Secretary of State revive, by order, Crown immunity, as the Crown Proceedings (Armed Forces) Act 1987 allows, to cover warlike operations in any part of the world outside the United Kingdom? Alternatively, will Her Majesty’s Government consider new legislation to define combat immunity, in order to clarify the current position? Could this be incorporated in the Defence Reform Bill now in passage through Parliament?

[Lord Astor of Hever]

My Lords, I share the noble and gallant Lord’s concerns. He is absolutely right to emphasise the relevance of the 1987 Act. Our Armed Forces should not have to put ECHR considerations ahead of vital operational decisions in the national interest. That is why we are not ruling out any options. An amendment to the Defence Reform Bill would probably be regarded as outside its scope, but we hope that the Court will provide clarification of combat immunity. For that reason we shall defend this litigation with vigour.

Reserve Forces

Lord Craig of Radley Excerpts

Wednesday 3rd July 2013 Lords Chamber

[Lord Astor of Hever]

My Lords, in answer to the first part of the noble Lord’s question, medical reservists develop additional valuable specialist skills when they are deployed, which they then bring back to the National Health Service. The Defence Medical Services is uniquely placed to share the development of operationally specific medical science and clinical excellence with the NHS. The National Institute for Health Research centre has brought together military and civilian trauma surgeons and scientists to share innovation in medical research, to advance clinical practice on the battlefield and to benefit all trauma patients in the National Health Service at an early stage of injury.

On the benefits to an employer who recruits an employee who is a reservist, I would say that reserve service will benefit different employers in different ways. For some, the improved skills, experience and training of the individual reservist will be beneficial. For others, where the reservist’s military role is close to their civilian one, there will be more benefit from transferable skills. For some companies and sectors, reserve service suits and supports their business models. For many, reserve service may support corporate social responsibility objectives and may be part of their social action plans, alongside wider volunteering policies. We encourage employers to publicise their support for the Reserve Forces to customers, suppliers and their local communities. The second part of my answer was in response to my noble friend’s third question.

[Lord Craig of Radley]

My Lords, the Government say in the White Paper that they will introduce new legislation to enable mobilisation for the full range of tasks that our Armed Forces may be asked to undertake. Current mobilisation arrangements are something of a historical anachronism. Invariably they require ministerial authority. They date from a time when protection for employers was nothing like as good as it will be in future. Will there be arrangements to allow mobilisation of individuals for very small units to be carried out without having to seek ministerial authority?

[Lord Astor of Hever]

My Lords, I cannot from the Dispatch Box answer the noble and gallant Lord’s question. That point is not in my briefing, but I will write to him.