Armed Forces Bill

Lord Craig of Radley Excerpts

Thursday 11th February 2016 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, the main purpose of the Bill has been fully outlined by the Minister. It is well understood that the Bill is an essential prerequisite for maintaining Armed Forces at the disposal of the Government of the day. However, this Bill follows the practice of the 2011 renewal of the new-look 2006 Act, and indeed of the quinquennial renewals of the single service Acts of the 1950s, before their displacement by the tri-service 2006 Act.

The Bill is, in effect, a Marshalled List of amendments to the 2006 Act and, on occasion, amendments to the amendments introduced by the 2011 Act. I complained five years ago, as we dealt with the 2011 Bill, that this did not make it that easy to understand and follow what the House was being invited to enact. Whether this endless approach of “marshalled amendments” to the 2006 Act is to proceed unchanged every five years into the distant future needs to be considered. For those steeped in legislative minutiae—the Bill team and the parliamentary counsel—it no doubt seems tidy and straightforward. But for the rest of us, whether versed in the ways of the military or not, I do not consider it to be that satisfactory.

As the noble Earl, Lord Howe, stressed, the Bill is of profound constitutional importance. It has to be right. When considering defence requirements we think of new equipment coming into service five, 10 and 15 years hence, and of the size and shape of the Armed Forces being varied over decades, but none of that is viable or in any way realistic without the timely passage of the Bill before us. If it were not to be passed, the Government would not have disciplined Armed Forces at their disposal to man all that equipment or to fight their wars. I hope that the Lib Dem Benches, with their recent predilection for unmandated and vainglorious challenges to the convention norms of your Lordships’ House, will not be tempted to try to hold the Government to account by refusing to pass the Bill after scrutiny.

I, for one, would prefer the Government to have tabled a Bill that incorporates their amendments to the earlier legislation—in other words, to produce the Bill in a format that can be read without repeated cross-referencing. Would it be that much more difficult for the Minister to guide the House through this rewrite of the 2006 Act, drawing attention to the changes and improvements to the earlier Acts that it incorporates? Is the approach merely a matter of convention? Perhaps the Minister can advise the House.

I have no particular points to raise on the list of marshalled amendments contained in the Bill, but there is for me a glaring omission in what lies before the House, to which the noble Lord, Lord West, has just drawn its attention. It totally lacks any approach to the difficulties that have arisen from the application of human rights legislation to activities during or close to combat, or to the increasingly vexatious problem of prolonged and historic litigation affecting or potentially affecting the operations of the Armed Forces and the lives of veterans long discharged.

Noble Lords will recall the growing media coverage of the latter issue in recent weeks. Defence Ministers have been reported as expressing anger and outrage. Indeed the Prime Minister himself has expressed his concerns, and presumably told the MoD to get a grip. In June and November 2013, when debating issues arising from the Supreme Court judgment on two particular cases which the noble Lord, Lord West, has just mentioned, I urged the Government then to be more proactive, although I accepted that precise steps would need to follow resolution of the particular cases before the courts.

Indeed, in a debate that November led by the noble Lord, Lord Faulks, I encouraged the Government to consider legislation to rule out from legal challenge under human rights legislation the behaviour of service personnel in the heat of battle or on dangerous patrols and similar operational activities. The European Convention on Human Rights was surely a safeguard for peacetime behaviour. I said that there was every likelihood that the situation would deteriorate further and that it would be a failure of moral courage and leadership not to tackle it. I also said that I hoped that the Armed Forces Bill due in 2016 could be a vehicle for legislating to ease these problems.

Nearly three years after the Supreme Court finding, and a protracted period for active consideration and staffing, there is nothing about this in the Bill—no sign of a proactive response. I remind the Minister what his party’s manifesto said, which he repeated in the Queen’s Speech debate only last May:

“We will ensure our Armed Forces overseas are not subject to persistent human rights claims that undermine their ability to do their job”.

The possibility of using a new Bill of Rights has been floated, but that Bill has yet to see the light of day. The Government should be ashamed of their lack of real progress.

What do I propose? There are two issues to consider. The first is the application of human rights law in conflict situations. I hope that the Minister will be able to report that, even at this late stage, the Government are preparing to consider adding to the Bill before us and honouring his party’s manifesto commitment. Surely that is a reasonable request.

The second issue, which would seem to cry out for a proactive government response, is the industrial-scale growth in cases alleging maltreatment, or worse, of enemy combatants by our own forces. Numerous recent cases going back not just years but decades are costing large sums and causing great stress and anxiety for those involved. Yet after prolonged and tendentious investigations, few or no plausible cases for full trial, let alone conviction, have yet been found. Surely the opportunity presented by having an Armed Forces Bill before Parliament must be used to introduce legal safeguards. The first step should be to introduce a statutory time limit for new cases against personnel on live operations.

It seems objectionable and unrealistic to attempt to bring something to trial, let alone have a hearing, when it depends on recall by witnesses and the accused of traumatic events of many years or even decades ago. I speak from personal experience. In 1991, the IRA launched a missile from a van parked in the road outside Banqueting House. The War Cabinet, of which I was a member, was in session in Downing Street. Fortunately, the missile blew up in the garden outside, severely rattling the windows and, to varying degrees, those of us sitting around the Cabinet table. But vivid as such an event was at the time, 25 years later I doubt whether the recollections of those of us who were there would produce a common, accurate description of what occurred in that room on that day.

Is it not time to introduce a statute of limitation specific to military activity before these no-win no-fee charlatan lawyers start roaming the streets of Buenos Aires in search of some so-called victims of abuse by the Armed Forces on the Falkland Islands in 1982, or in Iraq and Kuwait in 1991? I recognise this to be a big ask, since there is no general statutory limit in the UK for criminal cases. Nevertheless, the Armed Forces can be and are treated differently in law. I hope that one or more of my noble and learned colleagues might assist me in drafting a probing amendment or two to allow the Government to set out their thinking on these vexed topics.

Mental Health Services: Serving Military Personnel

Lord Craig of Radley Excerpts

Thursday 14th January 2016 Lords Chamber

[Earl Howe]

My Lords, there is no point in duplicating a service that already works very well. We work in close partnership with Combat Stress, which provides an extremely effective service, and, if necessary, signposts the individual to the right service according to need. There are helplines available for veterans as well, which we run on a 24-hour basis, but we do not see the need and there is no evidence that we should be looking at duplicating that service.

[Lord Craig of Radley (CB)]

My Lords, do the Government accept that, as a result of operations over the last decade and more, there are many more potential and actual mental health problems among serving personnel? The Minister suggests that this can be helped by charities, but what information is given to serving personnel that these charities are available? It seems to me that there is not enough information available to serving personnel on this issue.

[Earl Howe]

The noble and gallant Lord raises a very important issue. I do not believe that there is any shortage of information available. Personnel are given briefings and advice on whom to contact if they think they need help. These are reinforced by publicity material such as posters and leaflets in all unit primary care centres. Information is also available online on the MoD’s area of the GOV.UK website. Similar guidance can be found on the NHS Choices pages. I believe that there has been a significant improvement in the provision of this kind of information in recent years.

The Role and Capabilities of the UK Armed Forces, in the Light of Global and Domestic Threats to Stability and Security

Lord Craig of Radley Excerpts

Tuesday 15th September 2015 Grand Committee

[Lord Craig of Radley (CB)]

My Lords, I, too, thank the Minister for arranging this debate. I would like to follow on from the tour d’horizon of the noble Lord, Lord King, on one particular point—the number of platforms. I have expressed my concern on a number of previous occasions about the paucity of the number of platforms; by which I mean the airframes, ships and fighting vehicles that now form the front-line fighting strength of the three services.

I readily acknowledge that the striking power of individual platforms with modern, smart weapons provides a step change in hitting power and accuracy compared with previous generations. But that makes no allowance for the vulnerability of platforms themselves, nor of aircrew or other key sectors of manpower or logistics that support their use in combat. They are vulnerable to a variety of risks and not just those posed by an opponent. For example, there could be a hangar fire at an operational airfield that destroys a number of airframes; a loss of key components such as engines in a flood disaster; a damaging and fatal explosion in a crowded briefing room or on board a major warship; or a cyberattack on key intelligence or on equipment distribution. There could even be a tornado or other extreme weather event that causes physical damage. Any one of those risks and many more could deplete our already very limited front-line numerical striking strength, suddenly and unexpectedly. It is too easily forgotten that a freak hailstorm in Afghanistan in 2013 did more damage to front-line aircraft than the Taliban managed in the whole of the decade-long campaign in Helmand province. Is it a sensible policy that pays little or no heed to such potentially serious risks to combat capability?

Our complete mastery of the airspace in recent conflicts may also lure some into thinking that future operations will be just as loss-free from enemy action. But a better-resourced and capable opponent could in some future conflict readily inflict operational losses. Even against the less well-trained and equipped Argentinian forces in 1982, we lost half a dozen fighting ships with as many badly damaged, more than a third of our deployed fighter aircraft and numerous helicopters to Argentinian attacks. But we had sufficient strength in numbers to ride out those considerable setbacks. That strength had been procured many years previously and was operationally capable. Today, even small losses could greatly diminish our total combat ORBAT, which so lacks the numerical strength of earlier generations.

As has been mentioned, we pride ourselves that we punch above our weight, but the opposition, too, will doubtless mount some form of counterpunch. To succeed, we must have the resilience and firepower to overcome any form of counterpunch no matter how much damage or destruction it might inflict to our own front-line numbers. Let me say it again: we no longer have such resilience. That could be a critical factor between success and abject failure in future operations.

Even more critical so far as numerical platform strength is concerned is the vital contribution that conventional kinetic power has to play in sustaining and underwriting the credibility of our nuclear deterrent. Previous generations of the deterrent were procured when front-line conventional strength was orders of magnitude greater than what is available today, or likely on present plans to be available in the foreseeable future. Thus, it would have been possible, if faced with some gross threat to national survival, to mount a strong or even sustained conventional response, along with other non-military responses, to the aggressor. This would indicate national resolve and serve to underwrite the determination, if national survival were at stake, and ultimately, after all else had failed to deter or defeat the aggressor, to rely on the threat of a devastating nuclear strike. I fear today that the Government’s determination to remain a nuclear power, which I still support in principle, lacks adequate conventional muscle to underwrite and give a sure credibility to a nuclear deterrent strategy.

What in-depth analysis has been made of a minimum force mix—conventional force mix—that might be necessary to provide the Government of the day with the ability to indicate with strength their resolve to resist an aggressor? Otherwise, due to a paucity of conventional combat power, the Prime Minister could be faced with a most dreadful dilemma: a choice of the very starkest nature. It would be a choice between almost immediate use of a failed deterrent or surrender to the opponent. Does the Minister accept that current levels of conventional hitting power are not yet sufficient to give the deterrent truly believable credibility? Will this aspect of the renewal plan for the four new submarines be given the consideration that it merits in the SDSR work now in hand?

Finally, I return briefly to another issue that I raised, so far without success, in your Lordships’ House. Surely, it is time for the Armed Forces, so much reduced in numbers, to expect and look for some reduction in the number of Ministers with direct responsibility in the Ministry of Defence. I am not singling out personalities: all six of them are most diligent and hard-working, most notably the noble Earl himself. But it should be possible to reapportion responsibilities to have at most five rather than six Ministers on the payroll. Such a discipline has been applied repeatedly over many years within all three services. It would be an important signal to the forces. They have faced redundancies and other cuts. It is time that their Ministers shared in that downsizing burden, allowing the costs saved to be applied elsewhere in the defence budget. It is a reasonable reduction and it is long overdue.

Defence: Budget

Lord Craig of Radley Excerpts

Wednesday 17th June 2015 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, we know that the Government have a long-term economic plan; is there a long-term foreign policy plan? I suspect that the Minister’s brief will advise, “Wait for the SDSR”.

Let us surmise what cannot be in future policy requiring action by the forces. We claim to punch above our weight, but that is reality only if we have the strength to ride out the opponent’s counterpunch and still fight on to win. Thirty-three years ago we punched hard against the Argentinians. In less than a month we lost to their counterpunch six fighting ships, with others badly damaged, more than a third of deployed fighter aircraft and numerous helicopters. But we had the strength to ride out these setbacks—strength that had been procured many years previously and was operationally capable—and we beat the counterpunch. Now we lack strength in numbers to fight back so successfully.

We fielded a divisional force with air power in the first Gulf War. More than 50,000 UK personnel were deployed. The Iraqi counterpunch failed to materialise, but we still lost six Tornados and other aircraft. Then, those losses could be quickly replaced; today, even though we could field only a fifth of the 1991 level, nothing is left in reserve to beat off a counterpunch. In Afghanistan there was no Taliban air power to face. More airframes were lost to a freak hailstorm in 2013 than to enemy action.

In the past three decades surface ship numbers have gone down from nearly 60 to just 19 and the RAF is down from three dozen combat squadrons to a mere half-dozen. Platform for platform, fighting capability improves, but there is no scope for sustained fighting against any counterpunch—even hailstones. We need hard power to underwrite the credibility of the nuclear deterrent. By no measure of past experience are today’s Armed Forces large or resilient enough to do that, let alone to defeat a conventional counterpunch. This must be corrected. Does the Minister agree?

Armed Forces: Airborne Maritime Patrol

Lord Craig of Radley Excerpts

Thursday 4th June 2015 Lords Chamber

[Earl Howe]

My Lords, I emphasise again that this matter will be looked at very closely in the context of the SDSR—indeed, some preparatory work has already been done. I do not accept the noble Lord’s contention that we are without protection in this important area. We have the use of other military assets, as I said, including Type 23 frigates, submarines and Merlin anti-submarine warfare helicopters, and we rely on the assistance that we get from our allies and partners.

[Lord Craig of Radley (CB)]

My Lords, the Minister mentioned that some preparatory steps are being taken in the MoD. What date is the MoD planning for the introduction, assuming an agreement through the review that he mentioned?

[Earl Howe]

My Lords, I think that the noble and gallant Lord will accept that we must not leap ahead of ourselves too much. However, I can tell him that the capabilities required from a future maritime patrol aircraft have been studied by the MoD over the past two and a half years. The study has received representations from a number of defence industrial organisations, which have allowed us to understand better the nature of the platforms in existence, as well as the timeframe in which novel technologies are likely to mature.

Queen’s Speech

Lord Craig of Radley Excerpts

Thursday 28th May 2015 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, I add my welcome to the noble Earl for his return to the Ministry of Defence, and congratulate him on his new responsibilities as Deputy Leader of your Lordships’ House. I will touch on two key defence issues: the nuclear deterrent and what has been characterised as combat lawfare.

During the election campaign, the importance of continuing to have a nuclear deterrent was briefly raised. Both major political parties, at the most senior level, stressed their commitment to Trident and to replacing the Vanguard boats at the end of their operational lives. The intention to maintain a continuous at-sea capability appears in the Tory manifesto:

“We will retain the Trident continuous at sea nuclear deterrent to provide the ultimate guarantee of our safety and build the new fleet of four Successor Ballistic Missile Submarines”.

However, possession is only a part of that ultimate guarantee. Deterrence is not just about capability—with a very high threshold of invulnerability—but also about political will. Does all a potential adversary can see or surmise indicate strong political determination about the nation’s deterrent posture?

Critical to this, when faced with the most serious of threats, is the ability of government first to engage the enemy with all other non-nuclear means available to it, both military and non-military, and to be seen to act stoutly and with determination to defend an absolutely vital national interest. I do not consider that political will about intention regarding or use of nuclear weapons is believable if the choice that the Government of the day must make when faced with a critical national emergency is either virtually immediate use of their nuclear weapons, because they so lack conventional fire-power, or surrender.

Without further elaboration, my point is that national deterrence—the death sentence of a nuclear deterrent—lacks credibility unless there are available to the Government other military means of demonstrating determination and resolve in a worsening crisis. Robust kinetic action, short of a nuclear response, is required. But surely we need more—much more—non-nuclear capability than we could field today. Platform numbers are so low that even modest loss rates in the early stages might all too soon leave the Government conventionally impotent.

In years gone by, with troops and aircraft forward-based, with 30 or more combat air squadrons deployed on land or at sea and with the service fleet number treble that of today, different levels or degrees of conventional military response were available to the Government. Such serried steps are vital, visible indicators of a Government’s determination and that they will, if all else is failing, be strong-willed enough to threaten actual use of a nuclear weapon.

Therefore, I urge the Government to consider what more must be done as the economy improves to bolster and give credibility to their manifesto commitment to sustain continuous at-sea deterrents. I doubt that the pledged 1% increase in the equipment budget will suffice. This year’s SDSR should recommend what strengthening of our conventional offensive capabilities, both platforms and missiles, is essential to the nuclear deterrent posture, what additional protection for those more vulnerable platforms such as aircraft carriers, with dedicated surface and other units for them, must be acquired, and of course what protection is needed for our actual nuclear capability at its most vulnerable when entering or leaving UK coastal waters. If the Government’s manifesto commitment to mount continuous at-sea nuclear deterrence is to be credible, it must be partnered with greater non-nuclear conventional capability than is at present available. Surely it would be folly to spend billions on four successor ballistic missile submarines without providing the conventional contribution essential to sustain a credible nuclear deterrent.

I turn briefly to combat lawfare. There are growing and welcome signs that the uncertainties about the application of domestic or international law in complex scenarios are to be addressed. As the noble Earl mentioned, it is in the Tory manifesto, which states:

“We will ensure our Armed Forces overseas are not subject to persistent human rights claims that undermine their ability to do their job”.

I do not underrate the difficulties in honouring that pledge. I go back to the debates on the Human Rights Bill in 1998, when I foresaw difficulties—which were dismissed by the then Lord Chancellor, who was leading on the Bill—of incompatibilities between that Bill and Armed Forces legislation. Legislation about the International Criminal Court in 2001 and, more recently, concerning the handling of service complaints have all served to lessen the essential ethos of trust, both political and military, up and down the chain of command—a fundamental requirement of the Armed Forces. I wish the Government well in tackling those combat lawfare issues.

Now that there is likely to be a delay in bringing forward a British Bill of Rights, which might have been one vehicle for that legislation, I hope that the Government will consider dealing with the issue in the quinquennial Armed Forces Bill, which the noble Earl mentioned and which is due next year.

Falkland Islands Defence Review

Lord Craig of Radley Excerpts

Tuesday 24th March 2015 Lords Chamber

[Lord Astor of Hever]

My Lords, I can assure the noble and gallant Lord that the destroyers and frigates are within a certain number of days’ sailing distance from the Falkland Islands—we are very insistent on that. I think he will agree with me that sometimes an invisible deterrent is as effective.

[Lord Craig of Radley (CB)]

My Lords, the Minister has made an important Statement, but it really says, “We’re continuing as we are, doing some routine maintenance” —which after 30 years is hardly surprising—“and we’re sending a couple of Chinooks there next year”. That seems to beg the question: why has this become an Oral Statement rather than just a Written Statement?

[Lord Astor of Hever]

My Lords, I understand that it became an Oral Statement because the Opposition asked for that.

Armed Forces (Service Complaints and Financial Assistance) Bill [HL]

Lord Craig of Radley Excerpts

Monday 16th March 2015 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I speak as chairman of the Association of Military Court Advocates—I declare an interest; I am not expressing the view of that association.

I very much welcome the extension of the role of the ombudsman to considering the merits of a particular issue. I approach it from the point of view of the complainant and the complainant’s family, and the importance of the confidence of the public in the system of justice in the Armed Forces. From the point of view of recruitment and retention of service personnel, it is very necessary that those who undertake the burdens of service life should feel that they have a fair and just system of complaint. As I expressed when the Bill went through this House, the weakness of simply looking at process was that a decision on process would not be satisfactory to the complainant and their family. They would want an ombudsman to act like an ombudsman and to look at the merits of a particular case. I am grateful that the Government have moved in that direction.

[Lord Craig of Radley (CB)]

My Lords, following the Government’s defeats on this Bill in the other place, their initial reaction was to consider how best to reverse them when the Commons amendments were considered in your Lordships’ House. I shared that reaction. Not to reverse the defeats would be a further withdrawal from the position adopted by the Government and reaffirmed in correspondence that I had with the Minister of State, Anna Soubry, following the Bill’s consideration in this House. She wrote to me:

“The bill as it currently stands”—

that was before the defeats in the Commons—

“gets the balance right between having a strong and independent Ombudsman and preserving the PRIMACY of the chain of command. It is that balance that I wish to maintain”.

We now have this run of government amendments reflecting their new position. No doubt this change of heart within government has been brought about in part by the imminence of Dissolution, in part by the weakness of their position in this House on this matter, and in part by the acceptance by the Chiefs of Staff, albeit on the basis of shotgun pressure upon them, that the Bill as amended is the least bad of the possibilities likely to be available. However, is not that latter acceptance itself due in part to the character of Nicola Williams, the nominee for the new post of ombudsman, and the position that she has adopted of recognising the ethos and value of the chain of command? Whether she accepts, as Anna Soubry stated, the primacy of preserving the chain of command remains to be judged.

However, in due time, will her replacement be as savvy? We are legislating about principles, not personalities. I am also concerned to learn that the ombudsman’s office may be 20-plus strong, not all of them lawyers, as will be the ombudsman, and so probably less qualified to undertake systemic examinations of complaints handlings, let alone of actual complaint topics.

Moreover, there seems to be no presumption of improvement in the working of the chain of command over time in dealing with complaints—in fact, the opposite. The default presumption is that complaints will continue to be subject to systemic and irreversible maladministration, as bad as or even worse than it is today. Once again, it is the unspoken but damaging inference that civil authority does not believe that the military chain of command is ever really competent or trustworthy, or is ever really worthy of being upheld or supported. Such an attitude would concern me very greatly.

The Human Rights Act 1998 flew in the face of and upturned long-standing Armed Forces legislation. It removed the majority of the Armed Forces’ legal processes from the chain of command and was damaging to the sense of trust. For example, the convening and review of courts martial are no longer exercised by the chain of command.

The Human Rights Act and other, more recent, statutes affecting the position of the chain of command have served to chip away at and undermine the essential and irreplaceable value of trust and support up and down the chain of command. Although each individual change may seem not to be too damaging or serious, it is the cumulative impact of a number of statutes on the values of the chain of command that worries me and that must be considered. Such values are vital to the use of armed forces in peace or war and to success in operations.

Will the Minister give an undertaking that, as and when there are significant improvements in dealing with complaints by the chain of command, the size and scope of the ombudsman’s team will be reviewed? Otherwise, and given those improvements, there will surely be a temptation to avoid idle hands and deploy the efforts of the 20-plus in systemic work which might, on balance, prove to be inimical to and derogatory of the standing and desired primacy of the chain of command. I look to the Minister for that assurance.

Defence Budget

Lord Craig of Radley Excerpts

Wednesday 4th March 2015 Lords Chamber

[Lord Astor of Hever]

My Lords, I will take the noble Lord’s suggestion back to my department and it will pass it on, but we will meet the 2% target this year and next. Decisions on defence spending will then be made in the next spending review. However, the Prime Minister is clear that there will be an annual 1% real terms increase in spending on defence equipment. We are committed to ensuring that Britain’s Armed Forces remain among the most advanced and capable, able to protect our security interests across the globe.

[Lord Craig of Radley (CB)]

My Lords, the Minister mentioned the Government’s commitment to a 1% increase on equipment, but he did not make it clear whether this would be a 1% increase on the defence budget. Perhaps he could do that now.

[Lord Astor of Hever]

I can confirm that it is on the defence budget.

Russia: Armed Forces

Lord Craig of Radley Excerpts

Thursday 5th February 2015 Lords Chamber

[Lord Astor of Hever]

I agree with everything that my noble friend has said.

[Lord Craig of Radley (CB)]

My Lords, what was the Russian ambassador’s response to the Foreign Office when it called him in to complain about the transit of a Russian bomber aircraft along the Channel?

[Lord Astor of Hever]

My Lords, the Russian ambassador committed to giving a full explanation in writing of that long-range bomber activity.