Armed Forces Bill

Lord Lancaster of Kimbolton Excerpts

Committee stage
Wednesday 27th October 2021 Grand Committee

My third point is simply that, in my experience of sitting on court martial appeals and knowing very well the Judge Advocates-General, I have always thought that they had an intimate knowledge of how the service system worked; that is the sole justification for keeping it separate. Therefore, you have a specialist judge familiar with the entirety of the operation of the Armed Forces, which makes things seem much fairer to all concerned—and these days one is concerned not merely with the defendant, but with the wider public perception that sentencing is carried out by a judge well capable of absorbing and dealing with the guidelines and who is intimately familiar with the service background to the case.

[Lord Lancaster of Kimbolton (Con)]

My Lords, I will contribute briefly. I will not say this every time, but of course I start by declaring my interests as a serving member of the Army Reserve. I support the government amendments; they seem a sensible measure, as my noble friend the Minister described them. While I understand the thrust of the intent of the noble Lord, Lord Thomas of Gresford, on Amendment 3, I want to air a brief concern about the potentially diminished role of the lay members.

With minor offences that come before the court martial, the intent is very much that we wish to keep service personnel in the service. Indeed, MCTC in Colchester is designed very much to do that. Only if you are sentenced to more than six months do you have to leave the service, I think. For many soldiers who have been through that centre, a common theme has been that they come out better soldiers; when I say soldiers, I also mean airmen and sailors.

What really worries me is that we used to have three single service Acts, which were merged under the Armed Forces Act some time ago, but the three single services remain very distinct. Under the Levene review, we have delegated responsibility, which was originally intended solely to be a financial delegation to the three single services but in reality has become a policy delegation. Despite an effort by the MoD to regain that under unified career management that means that, for members of the Armed Forces at the same point of their career, a certain sentence may have a disproportionate impact on them depending on which service they are in. Although any judge-advocate may well know the system well and be very experienced, I am not sure that they would necessarily have the detail of the single service to apply to their judgment.

I accept that it is quite possible, however unlikely at this time, that a senior warrant officer or officer on the court martial would not have front-line experience; I am willing to bet that almost all of them have, because of recent years in Iraq and Afghanistan. But I am willing to bet that there are not many judge-advocates who have front-line experience.

It is important that lay members continue to play an active role. I am concerned that, in what is proposed, we are moving away from the defendant being able to look lay members in the eye, knowing that their peers will play an active role—through first-hand experience and being able to compare their own careers with those before them—and be part of the sentencing process.

[Lord Tunnicliffe (Lab)]

My Lords, as we begin Committee on this important legislation, I stress to all sides that we must use this opportunity to improve the lives of, and protections and support for, personnel and their families through legislative change.

Her Majesty’s Opposition stand firmly behind our brave service personnel and their families, and we strongly believe that the law should be on their side. That is why we support the principles behind the Bill and welcome the steps to create a legal duty to implement the principles of the covenant and the key elements of the Lyons review. But we all know that there are many, both in and outside the House, who believe that the Government could and should go further. Therefore, I repeat that our main priority will be to work with other parties to improve the legislation.

Our forces communities are themselves determined that the Bill should not be a missed opportunity, so the amendments tabled by Her Majesty’s Opposition and those we are supporting, we believe, are designed in good faith to reflect the cause of personnel, their families and the organisations which represent them.

The first group of amendments, which focuses on Clause 2 and Schedule 1, concerns the constitution of the court martial and implements recommendations from the Lyons review. These include fixing the size of court martial boards at three or six, and a move to qualified majority verdicts instead of the simple majority systems currently used.

The Bill’s Select Committee stated that the

“use of the simple majority verdict had been criticised by some, including … Jeff Blackett, and Liberty, who proposed that unanimous verdicts be sought in the first instance.”

The Government have subsequently tabled Amendments 1, 2 and 4, which they say enable the court martial to remain validly constituted if a three-member board loses a lay member—for instance, due to illness or the need to isolate. The Minister has said that she is making a small adjustment to future-proof the system of three-member boards to allow for the appointment of a four-member board for longer cases.

Why are these amendments suddenly needed? How often does the Minister think that a four-member board will be appointed? What consultation process has there been for this change? Is there a large enough pool of board members to support this change? When she says that four-person boards are for longer cases, what type of cases does she mean? Will it be just about time, or some other characteristics of the case?

It was also helpful to hear the argument of the noble Lord, Lord Thomas of Gresford, behind Amendment 3; I look forward to hearing the Minister’s reply to these points. With that, and with a careful reading of Hansard, we will be considering our position on this amendment.

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[Baroness Smith of Newnham (LD)]

My Lords, I will speak to my Amendment 65 and to Amendment 64. Like my noble friend Lady Brinton, I support the other amendments in this group brought by her and the noble Lord, Lord Coaker. They have given us clear arguments why those amendments are important, and I do not think they need to be rehearsed again.

On Amendment 64, my noble friend talked about people who have come here under ARAP. She and I raised this at Second Reading, and the Minister was kind enough to take some time to discuss it with me yesterday; I am grateful for that. There is clearly a question of scope in an Armed Forces Bill such as this. To suggest that we might extend the Armed Forces covenant to people who have not been service personnel with the British Army, Commonwealth or Gurkhas might raise some eyebrows. There were certainly some questions about that around tabling Amendment 64, which is why there is a specific bit of phrasing about extending the covenant

“to cover civilians subject to service discipline”.

My noble friend Lady Brinton asked whether we have a moral duty. The answer is surely that we have a moral duty to support in every possible way the people coming to the United Kingdom under ARAP. By definition, they are arriving here under ARAP because they worked as interpreters for our Armed Forces, with other allies or perhaps for the British Council. Those who worked for the British Council are vulnerable. It is easy to assume that it is simply interpreters putting their lives on the line, but those who were out teaching English now find that their lives are under threat. It is incredibly important that we look at them, not just at interpreters—although the situation with interpreters is very important. Why bring this amendment? Clearly, the ARAP scheme is in place and remains open, but those coming in under ARAP have worked closely with our Armed Forces and potentially put their lives on the line for the United Kingdom.

Surely we owe them a duty. Given that the Armed Forces covenant is supposed not to give advantage to service personnel and veterans but to ensure that they are not at a disadvantage, so there will be many issues facing people here under ARAP that are very similar to those faced by service personnel and veterans. I would like the Minister at least to explore what provisions we can make for people under ARAP, in particular to ensure that anybody arriving under ARAP can work from day one, because most people who come here under other Home Office arrangements seeking asylum are not permitted to work initially. That is very important.

My Amendment 65 is slightly different and perhaps should have been decoupled, because it relates to the duties put on local authorities and local health authorities. The Bill talks about having “due regard” and requesting local authorities to do certain things. At Second Reading, the Minister suggested that they have to have due regard, but there will not necessarily be financial provision for them to do so because they already have a duty to do certain things, so incorporating the Armed Forces covenant into law will not really make a difference. The way I phrased it may have sounded muddled, but I have been left muddled by the Government’s intention. If there is a purpose to putting the Armed Forces covenant into law, surely it is precisely to ensure that it makes a difference. If local authorities find that in paying “due regard”, now on a statutory basis, to the Armed Forces covenant they are required to engage in further expenditure, where will that money come from?

It is not possible within the scope of a Bill in the House of Lords to table a line saying, “Please give local authorities additional funds”, so we are not asking for that. We are asking for the Government to report on the financial implications of enshrining the Armed Forces covenant into law. If local authorities, housing associations and local health authorities incur financial consequences when engaging in their duties by supplying services such as social care, housing or health, we would then know that and it may at some suitable point be possible to bring forward relevant legislation. If no assessment is made, it is impossible to know the consequences.

The amendment is in a sense a probing amendment because we need to understand the real consequences of enshrining the Armed Forces covenant into law. If it is causing local authorities additional costs over which they have no say we should try to ensure that the finances are there to cover that.

[Lord Lancaster of Kimbolton (Con)]

My Lords, I shall speak briefly to this group. I have no fundamental objection in principle to extending the categories as proposed by the noble Lord, Lord Coaker. When I was the Minister responsible for this Bill five years ago there was great discussion of what the categories should be.

My concern—not an objection—is practical, which is perhaps the purpose of Committee. There has been some cynicism about the effectiveness of the Armed Forces covenant since we first created it, and its implementation has been patchy across the United Kingdom. Given how many local authorities are recovering from the pandemic and have been overwhelmed, I am slightly concerned that by adding all these categories now—the key word is “now”—we run the risk of overwhelming various bodies and simply adding to the cynicism that we have not managed to implement the Armed Forces covenant when they fail to implement it effectively.

My suggestion is a sensible one, though perhaps not for today, as to whether there should be an incremental addition to the categories that we put in the Armed Forces covenant. I am sure it cannot be beyond the ability of the Bill to attach dates for when categories are potentially added. I am not saying that we could necessarily sort that out today, but it may be a sensible compromise as we seek to slowly expand the Armed Forces covenant and make sure that we do not lose public consent to it being implemented effectively as we do so.

Equally, I have great sympathy with Amendment 64, having served in Afghanistan and worked closely with interpreters. There is no doubt that they were subjected to the same sorts of pressures and stresses that members of the Armed Forces were. Of course, having now crossed the line where we have rightly welcomed them into the UK, although it is a question of scope, and it may well be beyond the scope of the Armed Forces covenant to include them, I think the Government have a duty to explain how exactly, if they are not going to be included in the covenant, we will ensure their ongoing welfare.

[Viscount Brookeborough (CB)]

I must apologise for not being here at Second Reading when I was unable to come over from Northern Ireland. I declare an interest in that we are involved at my home with veterans and I am president of the Northern Ireland RFCA. Whereas it is different in England, we have not responsibility but more interaction with veterans themselves.

What worries us all is the “due regard” and how that is treated by our different and separate Administrations. I am not shining a light on Northern Ireland in particular nor asking the Minister to make any comments about Northern Ireland, where we have a special issue. However, this problem is seen as an issue by veterans. When we talk about the mental welfare of veterans, one of the biggest issues is who we are talking about. We have veterans who we know individually have mental welfare problems, but the big problem is the one that we do not know about: the vast number of veterans who have mental welfare issues but do not come forward. They do not do so for many reasons and we cannot go into them too much, but they include pride and the fact that they live with their families and do not want to admit the problem.

We know that the length of time between leaving service or being traumatised and presentation has gone down since Prince William and Prince Harry drew attention to it, from roughly 12 or 13 years to some six or seven, which is tremendous. However, the doubt as to how the covenant works and how it benefits our veterans inhibits a lot of them from coming forward. It is very difficult to admit that you have a problem and then be turned away due to a postcode lottery. Indeed, which Administration you live in can make it more difficult.

At the moment, I think the covenant is the beginning of a story and of a method by which we can support our veterans. It is not a done deal but a start. I therefore support the gist of the amendments because they would take us in the right direction, though I appreciate that some of the scope and the lack of teeth are only a start. We have to make sure that we can take it further and cover an increasing proportion of those people.

The statistics, which are roughly equivalent to American and Danish statistics and therefore correct, show that 6% or 7% of all service people—interestingly, this relates outside this business to police and other front-line services—suffer some form of mental illness, while 17% of those on operations do so. So there is a very large body of people out there, and we have to enable this commitment to the covenant and to our people to be extended.

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Moved by

[Lord Lancaster of Kimbolton]

14: Clause 8, page 18, line 28, at end insert—
“343AG Regional committees(1) The Secretary of State may by regulations make provision to give committees established under section 25 of the Social Security Act 1989, known as Veterans Advisory and Pensions Committees, additional functions specified in the regulations relating to all former members of Her Majesty’s forces and their relevant family members, and a new name.(2) The regulations may in particular provide that it is a function of the committees—(a) to report and make recommendations to the Secretary of State on matters that are or may be relevant to—(i) their armed forces covenant report, and(ii) sections 343AA to 343AD and guidance issued under section 343AE;(b) to provide a distinct, identifiable, and independent point of reference in their region for both the veteran community and all those supporting it;(c) to raise awareness of, and support the implementation of—(i) services provided to the veteran community alone or with others,(ii) the Government’s strategy for veterans, and(iii) the terms of armed forces covenant;(d) to act as an advocate, promoter, facilitator, or communicator of services that are relevant to the veteran community;(e) to report and make representations and recommendations on existing or proposed services that are relevant to the veteran community.”Member’s explanatory statement
This amendment seeks to extend the statutory functions of Veterans Advisory and Pensions Committees (VAPCs), currently limited to functions relating to compensation schemes for veterans and their families (the War Pensions and the Armed Forces Compensation Schemes) to all aspects of veteran life.

[Lord Lancaster of Kimbolton (Con)]

My Lords, I first raised the subject of Amendments 14 and 15 in my name at Second Reading. I hope they will prove uncontroversial. Indeed, to pick up on the conversation we have had over the last few groupings, all these amendments seek to do is effectively to support the Government in what they are already doing and, equally, to try to embolden a committee to deliver the Armed Forces covenant. I shall be very brief.

Specifically, the amendment enables the Secretary of State to extend the statutory functions of the Veterans Advisory and Pensions Committees, VAPCs. They are regional statutory committees—nine in England, two in Scotland, one in Wales and one in Northern Ireland—established by a statutory instrument made under Section 25 of the Social Security Act 1989. Each committee has between 12 and 20 members, who are all volunteers. They are public appointees who act independently of their sponsoring department, the MoD, and so provide evidence and views from that independent standpoint. During my time as Minister for Veterans, I felt that as a body they played a valuable role, both as advocates on behalf of the MoD and as a source of candid advice to me as a Minister and to the wider veteran community.

However, the issue is that the enabling power limits the statutory functions that can be given to VAPCs solely to functions relating to the compensation schemes for veterans and their families, namely the war pensions and Armed Forces compensation schemes, and as such are mandated to engage with only a relatively small part of the veteran community and not the Armed Forces covenant in general.

As we seek to improve the implementation of the Armed Forces covenant, it strikes me that, through their independent approach and regional structure, the members of the VAPCs are well placed to make a useful contribution to the Government’s drive to make the UK the best place in the world to be a veteran. Indeed, just one aspect of this drive is the implementation of the duty introduced by Clause 8(3) of the Bill to have due regard to the principles of and relating to the Armed Forces covenant. In my view, at least, this is not only timely but long overdue.

Interestingly, we have in all honesty been talking about expanding VAPC powers for some time. As I recall, it was a proposed amendment put to me as a Minister when I was responsible for taking the last Armed Forces Bill through Parliament five years ago, but due to lack of preparation time was ultimately not included. We really have been talking about this for a very long time.

It is also an argument that has already in part been conceded by the Government, by their agreeing in principle that members of each regional VAPC be invited by terms of reference to join parallel informal regional groups to perform functions relating to all veterans. This is exactly what this amendment is trying to do, and they are proposing to do it. We even now have a position in which the Government are actively advertising the role of membership of VAPCs as extending beyond the original statutory functions. I have sent this to the Minister. I was rather surprised to discover that on the public appointments website, dating back over four years—the current appointments are equally advertised—the principal role for the chair of the south-east England VAPC, the first role it describes as being required, is to

“act as advocates for implementing the Armed Forces Covenant and associated measures at a local level”,

even though at this point it was not mandated within the statutory requirements. They have already been advertising it, so it seems logical that we should enshrine it in this legislation.

To be fair, this amendment is carefully crafted to ensure that it ties in with the Government’s intent to review the interim solution that they are proposing for the function of VAPCs after one year, after which it will enable the Secretary of State to give VAPCs functions relating to all veterans only if it should be concluded after that review that this is potentially the best way to maximise their contribution to helping support the Armed Forces community.

My plea to the Minister is simple. The Government have accepted in principle that the role of the VAPCs should be expanded by delivering this interim solution. The Government are even actively advertising it as an expanded role. All that these modest amendments would do is put in place the ability for the Secretary of State—if, and only if, he so wishes—to make that change after the review period rather than having to wait yet another five years for the next Armed Forces Bill.

[Lord Coaker (Lab)]

I am generally supportive of the amendment moved by the noble Lord, Lord Lancaster. He very ably made the point why the time to act is now rather than waiting a further five years before something is done. I very much hope the Minister can respond positively to what I think is a very sensible amendment.

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I must apologise to my noble friend; I had hoped to discuss his amendment with him before consideration of it in Committee. I would certainly welcome an opportunity to have that discussion with him following today’s debate but, meanwhile, I invite him to withdraw his amendment at this time.

[Lord Lancaster of Kimbolton (Con)]

I am of course grateful for my noble friend’s courteous reply. Indeed, if nothing else, having waited for seven years, if coincidentally, yesterday, the terms of reference were finally signed, then perhaps we have achieved something through tabling this amendment. That is good news. However, I must say to my noble friend—and she is a dear friend—that I am slightly disappointed by the reply. The one aspect that she did not address is why it was deemed necessary to put some of the roles of the VAPCs on a statutory footing, yet now it does not seem necessary to put on a statutory footing the extended role. There seems to be an illogic in that argument, which was not addressed. That is something we can discuss, because it certainly was not my noble friend’s point and we did not have the opportunity to meet before Committee.

I reserve the right to look at this again, because there is a strong sense of feeling. I know that many people listening to this debate will be feeling that, yet again, the Government are kicking the can down the road. When the Government issue adverts luring people in to be members of these committees, because they would apparently be supporting the Armed Forces covenant even though they are not on a statutory footing, that sends a very poor message. For the time being, however, I withdraw the amendment.

Amendment 14 withdrawn.

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[Lord Tunnicliffe (Lab)]

I accept the Minister’s assurance that this is a wholly technical amendment. If my assistants find that not to be true, I shall return to it ferociously on Report. But assuming that is the case, I am content with the amendment. I make the point that the next group goes into a fundamental area, and I would greatly object to any attempt to move into that group tonight.

[Lord Lancaster of Kimbolton (Con)]

I am grateful to be able to contribute briefly on this group, which is an area of particular interest to me. I declare my interest as chairman of the Reserve Forces Review 2030, which is the 10-year review of the Reserve—the outcome of which is, I should like to think, partly responsible for some of the Bill’s provisions on the Reserve.

The headmark of that review was the integration of the Regular and Reserve Forces. Within that, we attempted to create a spectrum of service—right of arc, full-time regular service; left of arc, a civilian—and within that spectrum of services, enabling the principle of bringing civilian skillsets through Reserves into delivering against defence demand signals. We encountered two principal barriers to that spectrum of service. The first, frankly, was money. Unlike the Regular Forces, the Reserve Forces are always considered to be a marginal cost and therefore, as soon as there are pressures on costings, it is the Reserves’ budget that will be reduced.

The other, to which this technical amendment goes directly, was terms and conditions of service. Of course, we already have full-time Reserve service, but we do not have the ability for reservists to have not a contract, per se, but an assured Reserve capability. That could be on a part-time but enduring basis—for example, not being contracted to work five days a week and becoming a temporary regular, but to be able to do it as part of a portfolio career. That would enable you to come in and, perhaps, work one day a week but over an enduring period. It would make the Reserve much more effective in delivering almost as augmentees, working on a daily basis, and moving away from its traditional role as a contingent capability that trained at weekends and was always used as that traditional Reserve.

That is why this government amendment is so welcome, to my mind. It helps to deliver that traditional Reserve capability for a Reserve which will be very much suited for the 2030s.

[Baroness Smith of Newnham (LD)]

My Lords, I wanted to hear the noble Lord, Lord Lancaster, before I spoke because I thought that if there were any heffalump traps, he might have spotted them, given his expertise on reserves. I seem to recall that when we were looking at flexible working for the regulars it garnered some concern from certain Benches and perhaps from some noble and gallant Lords who were a little concerned that you could not be a part-time soldier. Actually, that was never what was being suggested.

Looking at these amendments one by one, a bit like the noble Lord, Lord Tunnicliffe, I could only assume that they were all doing what the Minister said they were doing because they look so technical. I think the statement given by the Minister and the comments from the noble Lord, Lord Lancaster, both suggest that this is helping to bring the reserves into an even more effective place. The reserves clearly play an important role, and if there can be a logical movement between full-time and part-time work and that counts as continuous service, that has to be all to the good. The only thing I would say, if anyone were looking at a complete guide to plain English, is that by the time anyone is looking at this Bill it will be totally unreadable because the language seems to be so arcane. I hope it will keep the government lawyers working for many years to come.