Armed Forces Act (Continuation) Order 2022

Lord Craig of Radley 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?

Ukraine: Weapons

Lord Craig of Radley Excerpts

Thursday 16th June 2022 Lords Chamber

[Baroness Goldie (Con)]

I am unable to provide anything more specific to the noble Lord in addition to what I have previously said. I cannot offer a detailed inventory of what is currently in storage in terms of stockpiles for the UK, or a complete inventory of what is being released to Ukraine. What I can reassure the House about is that the department is constantly engaged in reviewing these stock levels, having regard to both our commitment to support Ukraine and our obligation to make sure we can defend the United Kingdom. As the noble and gallant Lord asked earlier, we are fully engaged with industry.

[Lord Craig of Radley (CB)]

My Lords, as well as supplying weapons, Royal Air Force Typhoons are flying regular NATO missions over countries adjacent to Ukraine, in addition to their UK QRA and defence of the Falklands tasks. What steps are Her Majesty’s Government taking to increase the size or number of Typhoon squadrons in order to cope with this exceedingly additional commitment?

[Baroness Goldie (Con)]

I can confirm to the noble and gallant Lord that we have been deploying elements of all three armed services. That includes bulking up the presence in Cyprus, because we have four additional Typhoons there. We are doing that within our existing commitments, and we are satisfied that that is a balance we can reconcile not just in terms of crews needing to be rested, recuperated and returned to duty but in terms of meeting both our obligations to our NATO allies on the wider safety of Europe and our own internal obligations.

Ukraine Update

Lord Craig of Radley Excerpts

Wednesday 27th April 2022 Lords Chamber

[Baroness Goldie (Con)]

I think that when the Secretary of State referred to the next three weeks, he had in mind what has been a clearly discernible change of approach by the Russian leadership and military. That has involved two things. It has involved a new command structure, which indicates that the previous structure was not working. It also indicates that Russia realises that it is going to have to consolidate its resources and it therefore wants to focus on the eastern part of the country. That is a critical part of the conflict, because it is very clear that Russia is determined—we see it from the activity already taking place in towns and cities within that area—to try to strike this land bridge down through the south-eastern part of the country. That is what the Ukrainians are determined to resist, and it is what the UK—with all our allies and partners—is determined to support Ukraine in repelling.

On the issue of the next three weeks, we all know that President Putin has set his May Day parade day as an iconic, tokenistic opportunity to—no doubt—declare how successful he considers this illegal war has been. That would always raise an expectation that he might be prepared to escalate activity, and therefore there is a critical need to anticipate and respond if that is the case. This is a critical part of the conflict, but I think it is clear from the response in the support for Ukraine that the Ukrainians know that they have a lot of friends, and they now have a lot of really substantial equipment and weaponry to help them in the defence of their country.

[Lord Craig of Radley (CB)]

My Lords, I very much welcome the Statement and the support which the Government are giving to Ukraine. I was very grateful to hear the assurance from the Minister that the kinetic capabilities of our own forces are being protected. I hope that industry is rising to the challenge, which it obviously must be facing. One thing which was not mentioned was the impact of economic sanctions on the fighting capability of the Russians. Has any assessment been made of those sanctions as they affect the military capabilities of the Russians, both immediately and in the longer term?

[Baroness Goldie (Con)]

The noble and gallant Lord has asked an interesting question. There is no question that the broad mechanism of sanctions applied both by individual countries and in concert by united nations is having an impact on Russia. I do not think that there is any question about that. The extent to which that will impact on the Russians’ military endeavour and their capacity to, quite simply, pay salaries or fund equipment or buy new equipment is probably much more difficult to anticipate, but it is a very interesting question. As time passes, we might begin to get a clearer picture of what this means for the Russian military endeavour.

We all understand at the moment that what we are seeing are, quite simply, signs of the failure of that Russian endeavour, because there have been clear indications of failure. Part of that might be down to incompetence and ineptitude on the field, but some of it might be increasingly down to inability to keep supplies coming, logistics flowing and the normal support necessary to sustain armed forces in conflict. It is an interesting point, and I will take it back to the department. If I come across any further information, I shall share it with the noble and gallant Lord.

Ukraine: Lethal Weapons

Lord Craig of Radley Excerpts

Tuesday 5th April 2022 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, can the Minister confirm—bearing in mind the large numbers of weapons being used by the Ukrainians—that the United Kingdom can continue to support those requirements without reducing our own defence needs below essential? What cost is the Ministry of Defence having to bear, if any, for all these weapons?

[Baroness Goldie (Con)]

I can confirm to the noble and gallant Lord that the MoD continually manages and reviews all of its stocks of weapons and munitions to ensure that it can meet its commitments. That includes supplying to Ukraine while ensuring that UK Armed Forces stocks are sufficiently maintained. Where replenishment is required, this is expected to be funded from the HM Treasury special reserve.

Migrant Crossings: Role of the Military

Lord Craig of Radley Excerpts

Thursday 20th January 2022 Lords Chamber

[Baroness Goldie (Con)]

The noble Baroness makes an important series of points. She is right, for example, that the Home Office and the FCDO will continue the primary discussion with France on the diplomatic front. I reassure her that Defence has a very strong relationship with France, and we regularly speak to our counterparts on matters of mutual interest. Funding will be required for this, and the Ministry of Defence is currently computing costs with a view to informing discussions with the Treasury. On the assets, we are dealing with a domestic situation in largely indigenous waters, and therefore the capabilities that Defence makes available for this task will be assets already permanently assigned and committed to operations in home waters, including offshore patrol vessels, P2000s and RHIBs.

[Lord Craig of Radley (CB)]

My Lords, it is very unlikely that the migration effort by people wanting to come to this country will cease. I must therefore ask the Minister how long the Ministry of Defence expects to be committed to this task. Is it indefinite or for a set period?

[Baroness Goldie (Con)]

I say to the noble and gallant Lord that the overall responsibility for dealing with immigration is cross-government. In so far as the MoD’s operational role is concerned, it will retain primacy of operational control until public confidence is restored and the number of individuals attempting to enter the UK through this route is brought under manageable levels.

Armed Forces Bill

Lord Craig of Radley Excerpts

Consideration of Commons amendments
Tuesday 14th December 2021 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

I rise to support Motion A1 in the name of the noble Lord, Lord Thomas of Gresford. The key issue is trial by jury. I completely accept the improvements in the service justice system—I saw them in my former role as Lord Chief Justice. However, the Minister does not grapple with the fundamental issue: why take away the right to trial by jury? It is important, because sometimes Ministers misspeak on the “Today” programme, to see what the Deputy Prime Minister wrote in this morning’s Times:

“Trial by jury is another ancient right, applied variably around the UK, that doesn’t feature in the ECHR, but will be in our bill of rights. We should be proud of our history of liberty—and preserve a human rights framework that promotes it.”


It seems inconsistent with that declared policy of Her Majesty’s Government that the Ministry of Defence opposes the fundamental right of trial by jury for those who put their lives at risk for our country. That is what this amendment has at its heart.

It seems to me that by their support of this amendment in the course of debate, the Opposition have accepted that a mistake was made in 2005 when the right to trial by jury was taken away from those in the armed services for these very serious offences. Why does the Ministry of Defence not have the courage to admit that a mistake was made and restore the fundamental right of every member of the Armed Forces to trial by jury for these most serious offences?

[Lord Craig of Radley (CB)]

My Lords, I give a cautious but warm-hearted welcome to the remarks and undertakings from the Dispatch Box by the Minister about my amendment. She will recognise that the amendment last week required a report from the Secretary of State about why he, and so central government, should not have statutory authority or due regard. As the Government have stated in both Houses that they have reached the view that legislation is not necessary, it should not have been unduly onerous or difficult for them to explain why in a report to both Houses in the six-month timeframe. Now, however, I sense a changing view and the need for a longer period before making a report.

This change of view is most welcome. It has effectively been demonstrated since Report by the decision of the MoD to refer the case of the Hong Kong Military Service Corps to the Home Office, from one central department to another, dealing with a veterans issue that could not be gripped at devolved or local authority level. However, the MoD must continue to discharge its responsibilities to those veterans. It must continue to take an active interest in their plight until the Home Office responds. Will the Minister give that undertaking now? It should not need to wait for further consideration under the Nationality and Borders Bill when it comes to this House. My hope is that the Government will take “nonne” or a “ne” rather than a “num” approach in answering the request and reporting on why central government must have a legal covenant duty of due regard.

I am very conscious that time is pressing to gain Royal Assent, without which the Government have no statutory right to military forces. I was also somewhat reassured by the Minister’s statement in the other place, so I have not moved any further amendment. I thank the Government for conceding that the role of central government must be considered and reported upon to Parliament.

Armed Forces Bill

Lord Craig of Radley Excerpts

Consideration of Commons amendments
Wednesday 8th December 2021 Lords Chamber

[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.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I entirely support what the noble and gallant Lord, Lord Craig of Radley, has just said, but I want to add a word on Motion A1. It is clear that the overwhelming majority of people with real experience of the criminal and military justice systems support that Motion A1. The Minister is quite right: the service justice system has improved enormously over the past few years, but there is a fundamental respect in which it is different—that is, that there is no trial by jury. Trial by jury is the essence of our system. It gives confidence to the victims, which is critical in the very serious crimes that we are considering, and it is a fundamental right of the defendant. We should not do anything to take those rights away or to undermine confidence; that is the fallacy in the Minister’s argument.

--- Later in debate ---

That is the Government’s position. I accept that a number of your Lordships do not agree with it, but that is why we are proceeding as we are. I think noble Lords would accept that, overall, the Armed Forces Bill is a very important measure, not just for the legal constitution of our Armed Forces before the end of this year but—

[Lord Craig of Radley (CB)]

Before the Minister sits down, the big issue that came from this House is where local authorities cannot deal with the veteran issue. We produced some examples of that; it was not discussed at all in the other place. Could she explain why? This is not acceptable at this stage, bearing in mind that, in effect, it is already being carried out. I do not see why there should be any difficulty in incorporating the Secretary of State “having due regard” as the form of words, to show that it is a matter for central government. The veteran issue cannot be dealt with at local level.

[Baroness Goldie (Con)]

Central government, as I have indicated previously, is bound by a wide spectrum of obligations. Some of these obligations exist because of parliamentary and government obligations, some exist because the MoD is an employer of the Armed Forces, and some exist because, under the covenant—which is a concept, as I have said—we want to do the best we can.

What I did explain was that to make this work—I hope it is clear from the text of the Bill in relation to the three functions we have identified—you need to have an identified body and detailed functions. That is why the Government feel that it is premature to take this step at this time. I appreciate that the noble and gallant Lord disagrees with that interpretation. He feels that the Government should absolutely accept that they are bound under the covenant. I would say that they are bound under the covenant as a concept in terms of a moral responsibility, and they are certainly accountable not just to Parliament, as they rightly should be, but to their own Armed Forces and to their veterans, and to public opinion.

I have tried to explain why we feel that to take this step at this stage is both precipitate and premature. I appreciate that there is not agreement on that view, and that is what democracy exists to serve. But I have endeavoured to explain to your Lordships the position of the Government and why they hold to their views in these circumstances. Again, I respectfully ask the noble Lords to withdraw their Motions A1 and B1.

--- Later in debate ---

Moved by

[Lord Craig of Radley]

At end insert “, and do propose Amendment 2B in lieu—

2B: Page 18, line 28, at end insert—
“343AG Section 343AF: report
The Secretary of State must lay a report before each House of Parliament no later than six months after the day on which the Armed Forces Act 2021 is passed detailing 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.””

[Lord Craig of Radley (CB)]

I beg to move.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

The Question is that Motion B1 be agreed to. I am content to have an electronic Division to settle this. I instruct the clerks to plug in the machine.

Armed Forces Bill

Lord Craig of Radley Excerpts

3rd reading
Monday 29th November 2021 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, I join the noble Lord, Lord Coaker, in thanking the Minister, and join her in thanking her officials for the time they have been willing to take to brief the opposition spokespeople here in the Lords, and to answer questions in private, in Grand Committee and in the Chamber. It has been an important process and helpful to have had detailed responses, particularly on some of the legislative aspects, where my noble friend Lord Thomas of Gresford is expert and I am not. It has been very useful to have the legal input, and I am grateful for that.

Like the Minister and the noble Lord, Lord Coaker, I pay tribute to the Armed Forces. The Bill is important, and it is particularly important at this time to be putting the Armed Forces covenant on a statutory footing. We have now left Afghanistan—Op Pitting has just taken place—and, for many of our service personnel and veterans, there will be questions about the end of Op Herrick and what we have managed to achieve. For some, there may be consequences with which, I hope, the Armed Forces covenant will help them deal.

I very much hope that the two amendments passed in your Lordships’ House will go through the other place without needing to come back for ping-pong. I suspect that may not happen but, pending that, I thank the Minister again and hope that the Bill is passed as quickly as possible, because we clearly need it on the statute book by the end of the year.

[Lord Craig of Radley (CB)]

My Lords, as one of the sponsors of a number of amendments, I have added to the work of the Minister and her Bill team. I add my thanks to her for the way she has dealt with them. The Bill team, having been faced with a very large number of late government amendments, have done a magnificent job; Jayne Scheier and all of them ought to be thanked very much for that effort. I hope that the Minister will not forget that I mentioned the Hong Kong veterans and have yet to have a decent reply about that. The issue has been outstanding for 35 years, so it is about time it was dealt with.

I hope, too, that the amendments we have sent back to the other place will be accepted. Time is short, Covid threatens and it would be sensible if the Government avoided ping-ponging it in this direction again. I thank the Minister very much for all that she has done on this Bill.

[Baroness Goldie (Con)]

I thank the noble Baroness, Lady Smith, and noble Lords across the Chamber for their contributions. They reflect what I said in my remarks: we are all united in our admiration for, and desire to support, our Armed Forces. I thank noble Lords for these helpful and constructive comments.

Armed Forces Bill

Lord Craig of Radley Excerpts

Report stage
Tuesday 23rd November 2021 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, I support the noble and learned Lord, Lord Mackay of Clashfern, on Amendment 4, and I support his Amendment 17. He has brought to your Lordships’ attention an example of where due regard is necessary from the Secretary of State. When he did so in Committee, I said that I had another one, and I would like to take the opportunity to spell that out, because this cannot be devolved or left to local authorities to be dealt with.

Some servicemen recruited in Hong Kong were full members of Her Majesty’s Armed Forces, having taken the oath of allegiance and paid full UK taxes on their pay. They held British passports; some trained in this country or elsewhere to fit them for their role in Hong Kong; some were involved in jungle-style warfare training in Borneo; one large unit was sent to Cyprus to release further UK armed personnel for Operation Granby, the first Gulf War in 1991. Many in the Royal Navy Hong Kong Squadron served worldwide on Her Majesty’s ships. Now retired, they are still rightly classified as UK veterans and deserve fair treatment under the military covenant. But a few who served in those units that disbanded in 1997 missed out when allocations to retain their British citizenship were made in 1984. Some but not all of these servicemen were indeed allowed to retain their British passports and citizenships. Those that were missed out and overlooked have long been campaigning for a return of this right, which has been replaced by BN(O) status without the benefit of full British citizenship. This injustice occurred when they were still serving.

Their case was first raised in this House in 1986, over 35 years ago. It has been recommended by the Hong Kong LegCo and was strongly supported by Lord MacLehose, drawing on his long and distinguished tour as governor of Hong Kong from 1971 to 1972. The Minister who wound up that debate about Hong Kong replied:

“I hope that your Lordships will recognise that there are some complex issues to be considered here … But, again, I can assure your Lordships that we shall give this the most careful consideration.”—[Official Report, 20/1/1986; col. 102.]


Note that promise of careful consideration. Nothing happened. Nothing further was said or done. Regrettably, repeated assurance of careful, active consideration by the Home Office to this day still produces no decision. Surely these few veterans deserve better—a definitive answer, not just prevarication and stalling behind a misleading false promise of active consideration. How many more years of consideration do the Government require? Are the Home Office hoping that when the veterans are all dead the problem will be forgotten?

Following the enactment of the convenant in 2011, a small association, of which I am privileged to be honorary patron, was formed by some former members of the Hong Kong Military Service Corps to press their case again. I myself have repeatedly raised it in debates and Questions for Written Answer and written to the Prime Minister to support representations by those affected in Hong Kong. I am far from alone. Over the past nine years or more, many Members of both Houses have approached Ministers, Home Secretaries and Prime Ministers on behalf of these veterans, but over the past decade the response has been increasingly incredible and ridiculous—that is, that it is under active consideration.

Over 18 months ago, at their request, I forwarded 64 individual applications from those Military Service Corps veterans to the Home Secretary. None has been answered. There has not even been an acknowledgment from the Home Office. Understandably, the present situation in Hong Kong has strengthened the wish for this matter to be resolved and for those now few remaining individuals to be treated as full citizens. Will this Government at last do the right thing for these veterans?

Surely this is a further extreme example of the reason for a duty of care and due regard to be placed in statute on the Secretary of State. I am sure in future other issues affecting a group of veterans, not just individuals, will arise, which cannot be dealt with at devolved or local authority level. The Royal British Legion and other service charities have provided cogent arguments why it is not right to exclude central government from a statutory duty of due regard for veterans. I endorse that view based on their detailed and dedicated experience helping the veteran community. I strongly support this amendment.

[Lord Alton of Liverpool (CB)]

My Lords, I am very pleased to support Amendment 4, in the names of the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Coaker, the noble Baroness, Lady Smith of Newnham, and my friend the noble and gallant Lord, Lord Craig of Radley. As the noble and learned Lord, Lord Mackay, told us, his amendment gives us the opportunity to address specific injustices experienced by our ex-servicemen and he is absolutely right in telling us that the lead on this should not be local authorities but national government. That is why not only are we right to hang specific cases on this amendment, but the purpose of the amendment itself is also clear and right.

Over the past decade, my noble and gallant friend and I have knocked on the doors of Ministers and raised questions on behalf of Hong Kong veterans. I know how greatly he is admired and respected by that cohort for his dedication and commitment to their cause. We have also worked with Mr Andrew Rosindell, the Member of Parliament for Romford, who has put great energy into putting right what is a clear injustice. The treatment of Hong Kong ex-servicemen has not been commensurate with the Armed Forces covenant, and the noble and learned Lord and others are seeking to put it right.

I also pay tribute to Roger Ching, the chairperson of the HKOR Benevolent Association, and who says of the treatment of Hong Kong’s ex-servicemen that

“The attitude of successive Governments towards servicemen and women and veterans is appalling.”


In 2014, my noble and gallant friend and I met with the late James Brokenshire when he was a Home Office Minister. He was characteristically courteous, but neither he nor a series of successive Home Secretaries have been able to correct the signal injustice faced by Hong Kong’s ex-servicemen.

It is worth recalling that, from 1857 until 1997, more than 40,000 Hong Kong men lost their lives protecting our interests and the interests of the Crown. In the Great War, 100,000 British-Chinese soldiers served on the Western Front, and by the time of the Armistice the Chinese Labour Corps numbered nearly 96,000 men. In subsequent conflicts, they served alongside British servicemen: in the Second World War, in Korea, in the Malayan anti-communist campaigns and elsewhere, as the noble and gallant Lord has told us. In this month of all months, we should not only honour that contribution but do something practical to show that with memory of past sacrifice comes contemporary engagement with a long-running failure to honour the past.

In July 2006, the United Kingdom granted full British citizenship to all British Gurkha soldiers and their dependants who had served in Hong Kong. It was a generous and good decision. But why has there been such a different treatment for all but a handful of Hong Kong veterans? When Hong Kong was handed back to the Chinese Communist Party in 1997, a points- based system meant that only 159 of the 654 soldiers who applied to live in the United Kingdom were successful.

Campaigners responded to that clear injustice, and one group, 38 Degrees, even set up a petition which gathered more than 117,000 signatures. Yet the response since right of abode was set up in 1997 has failed to bring a settlement, with successive Home Secretaries repeating the mantra of which my noble and gallant friend has reminded us this afternoon: that the applications are “under consideration”. For how much longer are we to be given this unsatisfactory, stalling response?

Last year, Rosie Laydon, a presenter and reporter for Forces TV, was in touch with me. She said:

“British Hong Kong veterans do not feel the current Government offer of visas to those with BNO status offers adequate recognition of their service. They have told me that they believe they should be granted British citizenship unconditionally”—


and I agree. They also told her that, as former members of the British Armed Forces, under Chinese national security laws, now imposed on Hong Kong, they are liable to be charged with spying for the United Kingdom Government.

Here I should declare that I am a patron of Hong Kong Watch, a vice-chair of the All-Party Parliamentary Group on Hong Kong and sanctioned, along with the noble Baroness, Lady Kennedy of The Shaws, by the CCP after taking part, in my case, in an international team monitoring the district council elections in 2019. Since then, we have seen the enactment of the CCP’s draconian national security law, and I should like to hear from the Minister, for whom I have enormous respect, as she knows, what assessment she has made of the implications of loyal service to the Crown for the safety of our ex-servicemen in Hong Kong. We need to see this matter is a question of honour, but we also need to see it as a question of safety and security.

Recently, the noble Lord, Lord Ahmad of Wimbledon, told me in a Parliamentary Answer:

“The National Security Law is being used to systematically stifle rights and freedoms, not protect public security.”


He also wrote:

“The UK is deeply concerned about the situation in Hong Kong and the systematic erosion of rights and freedoms and the high degree of autonomy enshrined in the Sino-British Joint Declaration.”


Perhaps when the Minister replies, she can tell us when the United Kingdom is going to do anything more to hold the People’s Republic of China to account for the destruction of the basic freedoms of Hong Kong.

Meanwhile, I point out to your Lordships’ House that the Times has reported that the Foreign Secretary, Liz Truss, says that the CCP is “committing genocide” in Xinjiang—something that the House will return to on Thursday. In the context of Xinjiang, Tibet and Taiwan, I may add that there have been more than 150 sorties trying to intimidate Taiwan in the course of just five days. In Xinjiang, we have heard the United States Secretary of State, Antony Blinken, say that

“the forcing of men, women and children into concentration camps”—

his words—

“trying to, in effect, re-educate them to be adherents to the ideology of the Chinese Communist Party, all of that speaks to an effort to commit genocide.”

Is it any wonder, then, that loyal servants of the Crown fear for the consequences of being abandoned in Hong Kong? The CCP has imprisoned lawyers, dissenters, pastors and journalists, such as the young woman, Zhang Zhan, tortured and jailed for four years for shining a light into the origins of the Covid pandemic in Wuhan. On Friday last, concerned for her deteriorating health, the United Nations called for her release.

In this context of arbitrary arrest, imprisonment, torture and re-education—even genocide—who can seriously doubt that Hong Kong’s ex-servicemen, like Afghan interpreters or judges, will be primary targets as “two systems, one country” becomes “one system, one party, one ideology”? Recall that this is the same CCP responsible for the massacres in Tiananmen Square and for the enormities of the Cultural Revolution—and the deaths of 50 million Chinese people.

Through the Armed Forces covenant, we have the opportunity to demonstrate that we will not abandon loyal servants of the Crown, that we do not forget our debt of honour and obligations and that Parliament will go on supporting my noble and gallant friend until this wrong has been put right. It is for those reasons that I strongly support the amendment placed before your Lordships’ House by the noble and learned Lord, Lord Mackay of Clashfern.

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This is bizarre and it is an anomaly. It really must be addressed favourably and in a short timeframe. As the noble and gallant Lord, Lord Craig of Radley, said earlier, this issue, particularly in relation to Hong Kong, has been raised time and again, not year after year but decade after decade. The time to solve this one is now. I very much hope that the noble Baroness and the Government will move quickly on this issue. It is high time to do so.

[Lord Craig of Radley (CB)]

My Lords, I support Amendment 26. I believe that, until the issue of citizenship is resolved in favour of the few remaining veterans of the Royal Navy Hong Kong Squadron and other military members of Her Majesty’s Armed Forces recruited there, they deserve de minimis to benefit from this financial concession on the grounds of their full status as veterans. I have already in Amendment 4 explained the full background to these claims. Let us see whether the Government are finally able to make up their mind in favour of these long-standing requests. What response will the Minister make now—and please will she not just respond that it will be actively considered?

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I have nothing more to add today. Bearing in mind everything that I have said about these weapons systems in the past, I have made my position plain. I do not think the issue is going to go away. The way the amendment has been formed has been interpreted as a one-off event but I have to make it clear to Parliament, the House and the Minister that this is not my intention. The review that I think has to take place, which has to be reported on to Parliament by senior Ministers, who must come and explain it in a way that makes it clear that they fully understand these weapons and why they have made these decisions, is just the beginning of a long-standing process. This is an issue that will be with us for a long time, and we need to start thinking, in a relationship between the Government, Parliament and the country, about where we want to be with these weapons systems.

[Lord Craig of Radley (CB)]

My Lords, the noble Lord, Lord Browne of Ladyton, has given us a very thoughtful, well-researched and deeply troubling series of remarks about the future in this area. I wanted to concentrate on a rather narrower point. Those who are ordered to fight for the interests of this country must do so—now and in the future, as more novel technologies find their way into kinetic operations—in the certain knowledge that their participation, and the way in which they participate, is lawful in both national and international jurisdictions. As has become evident in some of the asymmetric operations of recent years, there is real evidence that post-conflict legal challenges arise, and future operations may prove impossible to clear up quickly and comprehensively unless we have thought deeply about it.

Risking one’s life is a big ask, but to combine it with a risk of tortuous and protracted legal aftermath is totally unacceptable. I support the simple thrust of the amendment to demonstrate that the Government indeed have this matter under active review, as one must expect them to. It is infinitely better that the answers to these issues are there before a further operation has to be waged, not after it is over, when issues that should have been foreseen and dealt with press on individuals and others in our Armed Forces. Should the protection of combat immunity not be brought into the frame of discussion and resolution of this seriously troublesome issue?

[Lord Clement-Jones (LD)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Browne of Ladyton, and the noble and gallant Lord, Lord Craig, in supporting Amendment 29, which the noble Lord introduced so persuasively, as he did a similar amendment on the overseas operations Bill that I signed and in Grand Committee on this Bill—I apologise for being unable to support him then. Since we are on Report, I will be brief, especially given the hour. Of course I do not need to explain to the Minister my continuing interest in this area.

We eagerly await the defence AI strategy coming down the track but, as the noble Lord said, the very real fear is that autonomous weapons will undermine the international laws of war, and the noble and gallant Lord made clear the dangers of that. In consequence, a great number of questions arise about liability and accountability, particularly in criminal law. Such questions are important enough in civil society, and we have an AI governance White Paper coming down the track, but in military operations it will be crucial that they are answered.

From the recent exchange that the Minister had with the House on 1 November during an Oral Question that I asked about the Government’s position on the control of lethal autonomous weapons, I believe that the amendment is required more than ever. The Minister, having said:

“The UK and our partners are unconvinced by the calls for a further binding instrument”


to limit lethal autonomous weapons, said further:

“At this time, the UK believes that it is actually more important to understand the characteristics of systems with autonomy that would or would not enable them to be used in compliance with”


international human rights law,

“using this to set our potential norms of use and positive obligations.”

That seems to me to be a direct invitation to pass this amendment. Any review of this kind should be conducted in the light of day, as we suggest in the amendment, in a fully accountable manner.

Armed Forces Bill

Lord Craig of Radley Excerpts

Committee stage
Monday 8th November 2021 Grand Committee

[Lord Lancaster of Kimbolton (Con)]

My Lords, I, too, oppose this amendment. I take the opportunity at the start of the session to remind your Lordships of my interest as a serving member of the Army Reserve.

I was going to intervene on the noble Lord, but perhaps I will give him this opportunity to intervene on me in reply to this question: how many members of the Armed Forces have contacted him or the noble Lord, Lord Coaker, to ask for this? Surely somebody has. I say that, because at no point in my 33 years’ service in the regular and reserve has this ever really been a topic of discussion for serving members of the Armed Forces. If the noble Lord wants to intervene on me or perhaps answer the question when he comes back at the end, I would be fascinated to know how many members of the Armed Forces have actually asked for this. I have a horrible feeling that the answer is none. I certainly have no experience of that.

Equally, I share the noble and gallant Lord’s concerns about the impact on the chain of command. Given the unique circumstances that we find ourselves in in the military, certainly on operations, there is a distinct way of doing things with the chain of command. There are ways through the chain of command to make your complaints. Of course, we now also have the Service Complaints Commissioner. We have quite a developed sense of how this works in the military, which is why I go back to my first point: I just do not sense that there is any demand for this at all within the community the noble Lord is seeking to impose it on.

Where there are areas of concern, for example pay, we have quite a developed system with the Armed Forces’ Pay Review Body. I have given evidence to this body as a Minister. It is a very considered body, it is independent and its recommendations have been taken very seriously by successive Governments now for many years. We have seen that in the annual pay award, which the Government are forced to respond to

I suppose my principal opposition to all this is that I just do not understand where the demand is coming from, other than political parties potentially wishing to impose their values on our Armed Forces.

[Lord Craig of Radley (CB)]

My Lords, I do not support this amendment either. Indeed, I fully endorse the remarks of the noble and gallant Lord, Lord Boyce. I do not for a moment question the good faith in and the fulsome support of the noble Lords, Lord Coaker and Lord Tunnicliffe, for the Armed Forces. However, I believe that there is a concept, of which this amendment is an example, that has been aired from time to time over the past 30 years and more—a concept that seems to have sprung in part from the end of the Cold War in the late 1980s. The concept, or supposition, was that the Armed Forces were “civilians in uniform”, so their treatment, expectations and everything else about their daily lives should be seen and fashioned in that civilian primary context. However, it is a false premise.

I believe that the proposal in this amendment has been floated unsuccessfully more than once since the 1980s. Of course, members of the Armed Forces, like all their civilian counterparts, are human, but members of the Armed Forces have duties and responsibilities unmatched in the civilian environment. The fact that we are dealing with an Armed Forces Bill that affects the lives and well-being as well as the fighting efficiency of our Armed Forces underlines that point in spades. The fact that this Act has to be renewed every year and owes its origins to the time of Henry VIII exemplifies the unique difference in treatment, both in law and more generally, of the Armed Forces from the civilian world of employment over centuries.

Whether on or off duty, the behaviour of service personnel may be much praised, but if they fall short of good behaviour it is their service as well as themselves that attracts bad publicity and opprobrium. The more senior the individual, the greater the public dismay at poor or reprehensible behaviour. Both on or off duty, the service individual has a duty to behave responsibility, and who or what has or should have the responsibility to lead and encourage that? It must be the chain of command.

I have many times in my own experience explained why this is so fundamental to the ethos and fighting efficiency of the Armed Forces. The noble Baroness, Lady Goldie, spelled all this out in the clearest of terms in her introductory remarks in the first sitting of this Committee. She said, and it is worth quoting:

“It is worth emphasising that members of the military are governed by a more stringent set of rules and restrictions than those of us in civilian life. These rules are designed to maintain discipline and promote operational effectiveness so that they can get the job done. Many of these additional rules and restrictions to which service personnel are subject apply regardless of whether they are on or off duty.”—[Official Report, 27/10/2021; col. GC 146.]


That is worth listening to and remembering.

The regard for an application of such a unique regime must rely primarily on the chain of command. I am not alone in expressing concern and, at times, even dismay at the way in which the chain of command’s uniquely important role has been set aside or weakened, sometimes in the search for more transparent justice. However, no judicial system is perfect. The imperfection is processed and managed by gradations of justice, but that does not make it infallible.

The introduction of an Armed Forces federation, regardless of whether such an organisation could perform alongside the chain of command without confusion, overlap or mismanagement, would once more be to underrate the chain of command’s importance to the efficiency and ethos of the Armed Forces. Indeed, I am not sure, as the noble Lord, Lord Lancaster, was saying, on what research or examination the noble Lords, Lord Coaker and Lord Tunnicliffe, have undertaken in support of this amendment. Like the noble and gallant Lord, Lord Boyce—and, I believe, all chiefs of staff since my day, over 30 years ago, including the present holders of that office—I agree that an alongside federation as proposed in this amendment would be a grave mistake. That body of expert opinion should be heeded. I do not support the amendment.

[Baroness Smith of Newnham (LD)]

My Lords, I fear that the noble Lords, Lord Tunnicliffe and Lord Coaker, will not have very much support this afternoon. We on these Benches are also somewhat sceptical about the proposed amendment. I note that the noble Lord, Lord Tunnicliffe, said that this was not a trade union, which we would clearly oppose, but it is also not entirely clear what an Armed Forces federation would bring that would serve an appropriate and necessary purpose. We therefore share a lot of the reservations raised by the noble and gallant Lords, Lord Boyce and Lord Craig of Radley, and by the noble Lord, Lord Lancaster. In particular, what precise problems do the noble Lords believe will be served by having this federation? In particular, in what way can it serve efficiency? Adding another mechanism does not necessarily seem to be a way in which to help efficiency.

The one area where I think something might be useful that would not, I hope, undermine the chain of command is that on some occasions, particularly at times with issues of pensions and pay, there could be better lines of communication. What was fed to me occasionally when I was involved in the Armed Forces Parliamentary Scheme was not that people were saying, “We must have representation and a trade union or an Armed Forces federation”. It was more that they would like to understand better what was going on. So slightly better lines of communication would be welcome.

However, I do not think there is anything in this amendment that will really be necessary or particularly useful. In particular, I have reservations about proposed new Section 333B(2)(a), (c) and (d). What will the Secretary of State be providing on membership, voluntary subscriptions or financial support for this Armed Forces federation? Will those really be useful expenditures? Will they help our security, our defence or our Armed Forces?

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[Lord Houghton of Richmond (CB)]

My Lords, it is a pleasure to speak in support of this amendment. It is one of the few elements of the Bill that seeks to get ahead of the game rather than just play catch-up. My particular perspective is that there is one element of the new security challenge that I feel has escaped proper consideration, one for which there seems no comprehensive or coherent plan of action, which is the issue most commonly referred to as “lawfare”.

To my view, the law is potentially one the most powerful weapons that we have in the security context of the age. It is both a weapon of defence that we should use to protect ourselves from the malign activity of others, and a weapon of attack that we should use to liberate our own freedom of action. As had been said, a fundamental deduction from the recent integrated review was that, within what is a significantly changed strategic context, we now live in a persistent state of adversarial competition, but one in which the resort to formalised warfare at scale is, perhaps by choice, avoided. The preferred vectors of attack in this competitive world are not, therefore, active, large-scale military operations, but more subtle, more deniable and less attributable activities.

The domains of active warfare are no longer necessarily primarily land, sea and air, but space, cyber and what is called the “cognitive domain”. Whereas traditional warfare has rules and laws and accepted norms of ethics and morality, the new character of grey-zone warfare is one in which our enemies exploit, for advantage, the absence of a legal framework within which to operate. So the new vectors of attack are activities such as disinformation, multiplied by internet bots; deniable cyber offensive activity; proxy terrorism; and political assassination, potentially using international private military companies.

More specifically in relation to this amendment, technological advancement in the areas of artificial intelligence, machine learning and autonomous weapons systems also offers scope for our adversaries to deny us their potential benefit while they exploit their unattributed use simply because no accepted legal framework for their authorised use yet exists. This context means that our principal geopolitical adversaries can employ methods that are both malign and aggressive but which we find difficult to respond to because we are unclear about what is morally, ethically and legally permissible. We risk, in effect, allowing our enemies to win without fighting.

In this House, during the passage of the overseas operations Bill, I bore witness to—forgive me—some remarkably contorted debates that appeared to present the law as either something inviolate to change or else an irremovable object that needed elegant methods of circumnavigation. I fear that our enemies will exploit our legal complexities to undermine our morale and devalue our credibility as an ally, among other things.

My view is that the only practical way to respond to the situation I have described and the one described in the integrated review is to start to use the law to our advantage: to go on the legal offensive, to reimagine our use of the law not as a time-honoured constraint on activity but as a weapon to be employed to liberate and confirm the legal boundaries of our own freedom of action while bringing much-needed constraint to the malign activities of our enemies. The Government need to give serious thought as to what aspects of this legal offensive need prioritisation. This House, consisting as it does of far more legal minds the military ones, has a significant role to play, but unless global Britain can make a meaningful contribution to the re-establishment of internationally accepted norms of morality, truth and justice, some might seriously undermine the willingness of our people to fight for them.

My strong view is that this country has all the necessary skills to embark on lawfare. I hope that, within their stated intent to help shape the future international order, the Government have the political will to do so as well. I believe the amendment is a small step in the right direction and it has my unreserved support.

[Lord Craig of Radley (CB)]

My Lords, I support this amendment and agree that there is an increasing need for clarity not just today but in the immediate future about the legality of, for example, remote aerial vehicle kinetic operations that involve loss of life, whether military, paramilitary or civilian. Many recent operations have been conducted on an asymmetric footing and not all perhaps with formal, clear-cut international approval. Of course, the right to self-defence is well understood, but how confident are we that emerging technologies in defence weapons systems and their oversight will remain invariably with a human in ultimate control? How it that to be maintained in order to comply with the present laws of conflict as new weapons systems with new technologies are deployed? Are the laws of conflict being overtaken by the possibilities of new types of lethal weapons systems?

Presumably the legality of a remote aerial vehicle operation applies to long-distance control from ships as well as to that from a land base that is remote geographically from the target. Does that base have to be on national territory? What if it is not? What if the operation of the remote vehicle is shared with an ally? How has the operation been approved? What justifications are required for an armed response or for initiating one?

What if the child of a non-combatant civilian accidentally killed by a remote kinetic strike subsequently grows up and seeks to sue the individual or individuals responsible for the control or authorisation of the attack that killed their parent? Will the loss or destruction of any official records of the attack be any sort of viable defence?

As technology moves defence capabilities forward, we will soon enter the era of loyal wingman UAVs and how they interact with their human control. Swarming mini drones are also emerging. There will soon be more, as novel digital technologies are exploited; for example, in the Tempest programme, although I do not have knowledge of secret projects.

The Armed Forces personnel—and this is the key point—involved in kinetic operations exploiting these novel technologies must have absolute clarity about the legal position in which they are required to operate. It is time to know more about how the Government are examining this issue, as I am sure they must be. It is time to be kept informed about the considerations of this complex legal issue as it evolves. Reports from the Secretary of State to Parliament are a must. A review, which should be already in hand, should be reported to Parliament.

[Baroness Smith of Newnham (LD)]

My Lords, I rise as a Liberal Democrat to support this amendment and, like the noble Lord, Lord Browne, to apologise that my noble friend Lord Clement-Jones is not able to be present in Committee today. He asked an Oral Question last week, to which the Minister responded:

“UK Armed Forces do not use systems that employ lethal force without context-appropriate human involvement.”—[Official Report, 1/11/21; col. 995.]


I was not sure that the Chamber fully understood what “context-appropriate human involvement” was. It was a phrase that the Minister used many times. I wonder if she could elaborate this afternoon a little more on what she meant and whether now might not be the time to think a little more about AI, machine learning and some of the forward-looking issues. As the noble and gallant Lord, Lord Houghton of Richmond, pointed out, this would be a forward-looking aspect to the Bill. It is surely time for us to think about that, because the ethical and moral questions of people being killed by autonomous weapons that have a life of their own are unconscionable.