Armed Forces Act (Continuation) Order 2019
Lord Morris of Aberavon Excerpts(5 years, 2 months ago)
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Lord Morris of Aberavon (Lab)
My Lords, I do not know how often we debate the consequences of the Bill of Rights 1688, but, as the noble Earl said, this is one of them. The Bill prohibited a standing army without the consent of Parliament—a reaction, I suspect, to Cromwell’s stewardship.
When I was a young MP, we had an annual Army Act, which provided an opportunity to raise any issue concerning the Armed Forces. It was a day out for old warriors, from Colonel Wigg up or down, as the case was, to bait Jack Profumo, Christopher Soames and other War Office Ministers. I joined in, despite my limited experience as a Welch Fusilier subaltern, whose occasional job was to be in charge of 10 men, fully armed, taking the night train from Hanover to Berlin, with the blinds down, in order to assert our right to go from the British zone to the Berlin sector. Fortunately, World War III did not break out. Now, instead, we debate annually a statutory instrument, as the Minister said, with the same opportunity to raise any issue concerning the Armed Forces.
The 2006 Act is subject to a quinquennial review, and the next Bill will be in 2020. Knowing this, and following the case of Sergeant Blackman, I took the opportunity to alert the Ministry of Defence to my concern with some aspects of the court-martial system. I did this through Questions in September and October 2017, and a short debate in November 2017. I thought that my dual experience as both a Defence Minister and Attorney-General might be useful.
I was fortunate in my timing with the reply from the Minister, the noble Baroness, Lady Goldie, who said that,
“the Government have decided that the time is now right for an independent and more in-depth look at the service justice system so that we can be assured that it is as effective as it can be for the 21st century”.—[Official Report, 23/10/17; col. 766.]
I was not alone in criticising some aspects of the court-martial system. Indeed, the Judge Advocate-General, Judge Blackett, did exactly that, and I pray in aid his comments.
The MoD moved with unparalleled speed after I raised the issues in the House—I suspect that the noble Earl, Lord Howe, was behind this—by appointing a retired circuit judge, the former Chief Naval Judge Advocate, His Honour Judge Shaun Lyons, to conduct the review. I was fortunate, through the good offices of the noble and learned Lord, Lord Thomas of Cwmgiedd —the former Lord Chief Justice, as we all know—and the noble Lord, Lord Thomas of Gresford, to meet Mr Lyons and to raise with him some of the issues. The noble Baroness, Lady Goldie, said in the November 2017 debate that,
“we look forward to the report of his review in around a year’s time”.—[Official Report, 23/11/17; col. 390.]
Specifically I ask, now that we are in February 2019— 15 months on—and because there has been no public consultation, could noble Lords see the report if it is ready now, before any more work is done on the next Bill?
As the Attorney-General, I initiated and signed a protocol deciding, in those cases where civilians are involved, the most appropriate judicial machinery. I trust that the protocol is working well. Given the reduction in the size of the Armed Forces, despite the fact that various courts have held military courts to be human rights-compliant, there is a case for bringing military courts more into line with civil courts, particularly for the most serious cases, which are my concern. Experienced military prosecutors will ensure that the services’ general discipline needs will be protected. I emphasise that it is the most serious cases, such as murder and rape, which should be tried by a jury, with a judge appointed by the President of the Queen’s Bench Division, who allocates members of the High Court Bench for the more serious cases in our courts, where he or she sees the need. This should be a routine matter as opposed to an occasional departure. The very fact of the rarity of murder and rape cases reinforces my view that an unfair burden is imposed on the judge advocate when such cases are the day-to-day business of High Court judges, who deal with these matters, and licensed senior circuit judges.
The membership of the court martial is hierarchical, and I am told that the most junior member is asked to express his conclusions first. This is not an easy task for a junior member of the court martial, who might be sitting for the first time. Secondly, court-martial verdicts are decided by a majority. You can be convicted of murder or other serious offences by a three to two verdict. This is hardly 21st-century stuff. Thirdly, the voting is secret. In New Zealand in recent years, using the UK system as a model, they have decided that convictions must be unanimous. In our civil courts, there are strict procedural rules for juries to endeavour, first of all, to reach a unanimous verdict and, if they fail to do so, to reach a verdict by a majority of 10 to two where there is a jury of 12. Lastly on that point, the voting figures are made known to the public, to the court and particularly to the accused.
I trust the review will address the problems which I raised in some detail in 2017, and be bold despite the findings in the past on human rights compliance with the existing procedures; and also fulfil the Government’s aim, as the noble Baroness said in November 2017, of a court-martial system that is effective and also fair, in my words, for the 21st century.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, I thank the Minister for his exceptionally helpful introduction to this important issue. As he said, this is a vital matter, which we review through an Act every five years and a renewal every year. It illustrates the fact that this is a parliamentary democracy in the United Kingdom. Sometimes, some people, particularly down the other end, forget that this is a parliamentary democracy; Parliament’s role needs to be emphasised, as it is in this continuation order. It is much better than a presidential system, where the president is the commander-in-chief and has more extensive—almost unlimited—powers than the head of Government in the United Kingdom, in a parliamentary democracy. I welcome that.
I want to take the opportunity to raise a related matter. I thank the Minister for his recent excellent written replies regarding an accident that took place in Scotland on 1 September 1994. Someone who saw his replies remarked, “These are exceptional”. Normally, written replies from Ministers, particularly in the House of Lords, are scanty, whereas these were full and helpful.
The incident took place on 1 September 1994 when RAF Tornado ZG708 crashed on a low-flying exercise. Flight Lieutenant Peter Mosley, the pilot, and Flight Lieutenant Patrick Harrison, the navigator, were both killed instantly. The nephew of one of the flight lieutenants, Jimmy Jones, has written to me again. I raised this issue in the other place in 1994 when I was a Member of Parliament and I have raised it on a number of other occasions, because the board of inquiry into the accident was completely inadequate and the relatives received no explanation of why their loved ones were killed and no indication of the cause of the accident.
In Scotland, as the noble and learned Lord, Lord Keen of Elie, will know, the fatal accident inquiry procedure does not commence automatically in relation to such incidents, and there was no such inquiry. This is an astonishing situation. I do not know if the noble and learned Lord, Lord Hope, recalls the situation but he will certainly know the general legal framework in Scotland, where we do not have automatic FAIs into these military accidents. It seems a strange anomaly.
In thanking the Minister for the written replies, I ask him now, in the light of the plea I am making, to pursue this matter further with the Scottish Government and the Law Officers in Scotland to see whether something can be done, even at this late stage, to satisfy the relatives’ concerns. It is important that we are seen to be fair to these two men, who were prepared to fight, and ultimately to give their lives, on behalf of the United Kingdom. We should give some explanation to their relatives.
I would like to return to some of the provisions of the order. It says:
“The territorial extent of this instrument is the United Kingdom, the Isle of Man and the British Overseas Territories except Gibraltar”.
Why is Gibraltar excluded? Our soldiers, sailors and airmen presumably serve there. They may be covered by some Gibraltar legislation, but it is important to know why Gibraltar is excluded from the order. I think that is my only question.
National Security Situation
Lord Morris of Aberavon Excerpts(6 years ago)
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Lord Morris of Aberavon (Lab)
My Lords, two issues concern me today. The first is the legality of the Syrian air strikes, and I am grateful to the noble Lord, Lord Campbell, for his remarks. In the past, he has made important contributions in this field in the other place. One of the most painful and onerous decisions that a Prime Minister has to take is to commit British troops to an act of war. Perhaps the use of air power may be easier than committing troops on the ground. We have examples of a reluctance to do this, particularly on the part of the Americans in recent years.
Under the charter, there are two grounds for such actions. The first is self-defence and the second is a decision of the UN Security Council. In recent years and now, because of the veto, it is hopeless to expect authority from the Security Council. As the Attorney-General, I faced this problem in Kosovo, and I believe that I also drafted the rules of engagement in Sierra Leone. In Kosovo, there was abundant evidence of the need for action: evidence of large-scale ethnic cleansing, murder and rape, causing suffering to many thousands. The precedents for acting without the authority of the United Nations were few. My Conservative predecessor had advised on the setting up of no-fly zones in the Iraq war to protect the Kurds in the north and the Marsh Arabs in the south. These were passive actions on our part. Our proposed action in Kosovo for large-scale NATO raids, repeated over what I believe were 69 days, was aggressive and of a different kind from the passive action for which I had some precedents. It was aggressive action, although I was persuaded against my better judgment by the former Attorney-General, Mr Dominic Grieve, to use as a substitute the word “proactive” in my book, otherwise it might not have been published.
Our Ministers and our Armed Forces have to obey international law. They needed my advice to give them the security that they were acting legally. The Prime Minister has repeated almost word for word the three conditions for action set out in my book. The first is widespread humanitarian distress, the second is that there is no practical alternative, and the third is that the use of force has to be proportionate and, in my words, the minimum necessary to achieve our objective. She has quoted, “These are the same criteria for the legal justification for the Kosovan action”. I earnestly hope that the support of the Prime Minister will not damage my future career.
As I told the House on Monday, legal advice cannot always be certain, but I presume that the Attorney-General believed that he had a respectable legal argument or, as is sometimes said, an arguable case, which would be enough to satisfy the Armed Forces that they were acting legally. In international law, I could not go further than that. Some distinguished academic lawyers have expressed their dissent. I am comforted that that most eminent of lawyers, the late Lord Bingham, in his book The Rule of Law, went no further than to comment that the doctrine of overwhelming humanitarian disaster is controversial. That was the only comment he made in a detailed analysis of the law generally. Having warned my Prime Minister of the possibility of legal challenge, it transpired that I had to act as leading counsel for the United Kingdom to respond to the challenge of an action by Yugoslavia against the United Kingdom along with, I believe, eight other NATO countries as defendants, before the International Court at The Hague. It was Yugoslavia’s attempt to stop the bombing by getting an injunction so to do. To my regret, the court did not deliver judgment on the legality of our actions. I trust that the Attorney-General, in his advice to Ministers, dealt with the possibility of a challenge by a country with an appropriate status before the court.
The mischief we are dealing with is the abhorrent use of chemical weapons, banned by the consensus of the international community under the Geneva Convention protocol in 1928. Some 10 years ago, I had the pleasure of addressing the Organisation for the Prohibition of Chemical Weapons in The Hague. The spirit of the conference for maintaining the ban on chemical weapons was absolutely solid and therefore we must be very careful that there is no departure from that. The charter of the United Nations regrettably does not provide adequate cover where a wrong-doing state has the umbrella support of a veto-wielding nation. That goes to the very heart of the problem in Kosovo and now. In Cape Town 10 years ago and in St Petersburg last October, I tried to raise before the committee of the Inter-Parliamentary Union the need to reform the charter of the United Nations. That was a bridge too far for other countries, and perhaps ourselves.
My second point concerns the need for the approval of the House of Commons. Given the heavy build-up of briefing over seven days, the element of surprise would not have been lost in any event. They would have lost nothing except the grim possibility of losing the vote in the House of Commons if it were consulted. This is the real reason the House of Commons was not consulted. In February 2006, Lord Mayhew of Twysden and I, both former Attorney-Generals, gave evidence to your Lordships’ Constitution Committee. At the time it was engaged in investigating evidence for its report, Waging War: Parliament’s Role and Responsibility. We both came to the conclusion that the use of the royal prerogative to go to war, save in exceptional circumstances and emergencies, was outdated. We agreed that the consent of the House of Commons should be required first. The committee accepted our advice. A convention was established by the decisions of three Prime Ministers, Tony Blair, Gordon Brown and David Cameron, to consult the House of Commons. Given that committing our Armed Forces is so fundamental, I do not believe that the Government were right to put the convention to one side and not get the support of the House of Commons.
I end with what I believe was the most important statement made in the debate in the other place: what next?
Student Loans: Interest Rates
Lord Morris of Aberavon Excerpts(6 years, 8 months ago)
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Viscount Younger of Leckie
To answer the question about the £21,000, the issue was discussed at length during the passage of the Higher Education and Research Bill. When the current system was introduced, the threshold would have been around 75% of the projected average earnings for 2016. Since then, updated calculations based on ONS figures show the figure is now 83%, reflecting weaker than expected earnings.
Lord Morris of Aberavon (Lab)
My Lords, what is the Government’s estimate of the average debt of a graduate on leaving university?
Viscount Younger of Leckie
I have those figures but I will have to write to the noble and learned Lord with them; they are in my facts somewhere.
Armed Forces: Serious Crime
Lord Morris of Aberavon Excerpts(6 years, 8 months ago)
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Lord Morris of Aberavon
To ask Her Majesty’s Government what assessment they have made of the procedures for trying members of the armed forces for serious crimes such as murder; and whether they intend to consult on possible improvements to those procedures.
Baroness Smith of Basildon (Lab)
My Lords, with the leave of the House, I beg to ask the Question standing in the name of my noble and learned friend Lord Morris of Aberavon.
Type 31 Frigate
Lord Morris of Aberavon Excerpts(7 years, 1 month ago)
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Lord Morris of Aberavon (Lab)
My Lords, the Minister mentioned publication of the strategy in the spring of 2017. Is this not the spring? Are we not in April now?
Iraq Inquiry
Lord Morris of Aberavon Excerpts(7 years, 10 months ago)
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Lord Morris of Aberavon (Lab)
My Lords, I have been very critical of what I have called the scandalous delays in the publication of this report. I was not the only one. The Prime Minister was a prisoner of the mantra that this was an independent inquiry and therefore untouchable. I promised in the debate in October 2015 that, if the committee members turned out to be knights in shining armour and produced an authoritative report, I would withdraw my criticism. I am satisfied, subject to more leisurely reading, that all paths have been followed to the point of exhaustion. The committee deserves our thanks for its masterly analysis.
I intend to concentrate on some of the lessons to be learned. First, the families of those killed and grievously injured did not deserve such a delay in finding out what happened. My sympathies are those of a former Defence Minister and a former young soldier of many years ago.
The second lesson flows from the way the inquiry was set up. I was a member of a Select Committee of this House, under the noble Lord, Lord Shutt, that suggested a more permanent machinery in the Cabinet Office to give guidance to Ministers and provide continuity in materials. That was rejected by the coalition Government. It is time to think again.
The third lesson flows from the inquiry’s terms of reference. Respect for good government is undermined if reports do not see the light of day because of their breadth and before issues become dimmer and dimmer in the public memory. I have said previously that Sir John was not given the opportunity to discuss the scope of the inquiry. The Cabinet Office was in such a hurry that he was given only 10 minutes to decide whether to accept the chair. I suspect that Prime Minister Gordon Brown had no more than limited experience of setting up inquiries of this kind, having heard the arguments for choosing tightly drawn terms as opposed to all-encompassing ones. What he had in mind was about a year for the inquiry to report. The Butler inquiry took five months. As a young man, my name was proposed for the Falklands inquiry. I was in busy professional practice at the Bar, and I cleared my desk for the intended six months. I was very relieved when somebody else was preferred.
My fourth point concerns the fact that there was no lawyer on the committee, which shows up a little in the cross-examinations I have seen and read. The Leveson inquiry was a good example of a senior judge taking the chair, although this is not essential. Equally important was the advantage of having as counsel Sir Robert Jay, who could ensure and marshal the evidence, and undoubtedly shortened the proceedings.
I fully understand the concept of the independence of the inquiry, but surely this does not mean a free rein, without any parliamentary consideration when things are going wrong and costs are mounting year by year. There is a mechanism for control under Section 13 of the Inquiries Act 2005. For some reason this path was not chosen and we had an unbridled, non-statutory inquiry. It is the second major inquiry—the Londonderry inquiry being the other—that has grossly exceeded expectations in its length and costs. Have lessons been learned for the current historical sex abuse inquiry under Justice Goddard?
The Attorney-General had the very difficult task of ruling on the legality of the war and gave his honestly held views. I have never commented on the legal position. In my book I advocated that, despite the equivocation of the French, we should have tried for a second resolution. This was not a war of last resort. I do not find the consideration the Cabinet gave to the basis for going to war attractive, and the noble Lord, Lord Butler, has ruthlessly demolished it for lacking appropriate processes. Mr Blair has accepted responsibility—and rightly—for the way the decisions were taken. The Attorney-General was not asked why he had changed his mind that it would have been safer to obtain a second resolution because of the risk of legal challenge. He was surprised at the lack of interest. He is independent of the Government in this role, but the office is sometimes regarded as the fifth wheel of the coach by his political colleagues.
I was Attorney-General during the Kosovo war. In two war Cabinets I invited myself to speak—this was probably presumptuous. I also put all of my important arguments to No. 10 in writing. We were indeed, and as I had advised, challenged and, with eight other NATO countries, appeared as defendants before the International Court of Justice in The Hague, where I was leading counsel for the United Kingdom. There is always a danger of a challenge, and we were indeed challenged for one long week. I find the attitude of the Cabinet consistent with the Attorney-General’s evidence—it can be nervous of a legal spanner in the works.
Finally, I turn to post-war planning. We could all go into some detail on this issue, but there are more expert minds regarding the appropriate amount of equipment that should have been available. The Americans mainly bear the responsibility for the lack of planning but we share it, too, and are paying the price now.
Steel Industry
Lord Morris of Aberavon Excerpts(8 years, 7 months ago)
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Baroness Neville-Rolfe
My Lords, the energy policies to which my noble friend refers date back to the Labour years and the coalition. We are where we are now; we have paid out £50 million to the steel industry through the special energy provisions that exist. One of the groups—the one on competitiveness and productivity being chaired by my noble friend Lord O’Neill—will look at energy and environmental costs, other regulatory costs, and what action industry could take to drive up productivity and competitiveness, in the light of the playing field that my noble friend has described.
Baroness Neville-Rolfe
The Prime Minister is talking to the Chinese about this issue; obviously I am not able to share the detail with noble Lords today. However, I will add that we have been active at the European Union level, as I explained last week in answer to an earlier Statement. The Secretary of State will go to Brussels next week to talk to the relevant Commissioners in the various areas, and obviously the issue of Chinese imports, anti-dumping and the marketplace that I have described will be at the absolute top of the agenda.
Lord Morris of Aberavon
The European Union can be difficult on state aid. Would the mothballing of a plant or part of a plant fall foul of European Union state aid provisions? Those of us who have represented steel constituencies know that closure is final. Mothballing would give some hope to a community.
Baroness Neville-Rolfe
There are two questions there. On the first, as I explained last week on mothballing at Redcar, on the business case that was given, the Government did not have realistic confidence that a proposal for taxpayers’ support could be produced. As I am sure the noble and learned Lord knows, individual state aid claims are very complicated. You have to put the proposal together and then go and engage with the European Union. It is difficult to give a clear answer on that one.
Ukraine
Lord Morris of Aberavon Excerpts(9 years, 2 months ago)
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Lord Astor of Hever
My Lords, we are aware of mission creep and the history here. This is a closely defined training and advisory mission, and we are well aware of the other point that the noble Lord made.
Lord Morris of Aberavon (Lab)
My Lords, as is the practice where British troops are engaged, will rules of engagement be agreed with the law officers that will ensure that they remain well away from the areas affected by the conflict to avoid the slippery slope situation or mission creep?
Lord Astor of Hever
My Lords, we will consider the rules of engagement very seriously. However, as I said earlier, we anticipate that our trainers will be in a peaceful area, and they will not be armed. We will keep this under review, but we are optimistic on that point.
Armed Forces: Vehicles
Lord Morris of Aberavon Excerpts(12 years, 2 months ago)
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Lord Astor of Hever
My Lords, my thoughts are also with the families and friends of those six soldiers. Every death and injury reminds us of the human cost paid by our Armed Forces to keep our country safe. The Warrior is optimised to protect our Armed Forces from IEDs and is suitable for the task that it is required to do. It has a good track record in both Iraq and Afghanistan. The protected vehicle fleet in Afghanistan comprises a mix of armoured capabilities, some of which have flat-bottomed hulls with tracks and others have V-shaped hulls with wheels. This provides commanders with a range of operational capabilities to match the threat. Despite financial constraints, there is a successful programme that allows the Treasury to fund urgent operational requirements to procure equipment within a shortened timescale. Since 2001, more than £5.5 billion has been spent on UORs for Afghanistan.
Lord Morris of Aberavon
My Lords, it is many years since I had ministerial responsibility, under the noble Lord, Lord Healey, for the equipment of all our Armed Forces. My advisers then sought to prioritise needs for research and development. I believe that the Taliban is skilful in simplifying the components of IEDs, which may be part of the problem. Has any priority been given to technological means of counteracting IEDs? If so, when was priority given to research and development in this field?
Lord Astor of Hever
My Lords, this is a very important question. Survivability is measured by a number of factors, not just the width of the armour. A vehicle’s ability to manoeuvre around a battlefield, its firepower and its situational awareness capabilities all contribute to its survivability along with other factors such as tactics and procedures. A platform’s relative strength in one of the areas of survivability will result in a corresponding trade-off against another. For example, a highly mobile platform will have to be lightweight and therefore cannot have heavy armour, such as the Jackal and the Coyote, whereas a well armoured platform will lack mobility, such as the Mastiff. The same is true of lethality as the greater the firepower the more the weight will increase, which means less armour and less mobility. As tactics change, so does the optimal platform of choice.
Defence: Treaties with France
Lord Morris of Aberavon Excerpts(13 years, 6 months ago)
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Lord Astor of Hever
My Lords, I am sorry that the noble Lord was not here when I read out the Statement. Having said that, I am aware of the part that he played in securing greater co-operation with the French. The noble Lord said that we would have carriers with no aircraft flying off them. The idea is that the aircraft and carrier will come in at the same time. We will put the cats and traps on the carrier when the JSF comes in, in 2019 or 2020.
Lord Morris of Aberavon
My Lords, I recall that, when I was a Minister for Defence a long time ago, the United Kingdom had a certain degree of dependence on the United States, and we were governed by fairly tight treaty arrangements for the maintenance of our so-called independent nuclear deterrent. There were limitations in particular on the sharing of knowledge. What happens to knowledge or material that the United States is prepared to share with us but with no one else?
Lord Astor of Hever
My Lords, that is a very good question. I have reams of briefing on this and it would probably be better if I wrote to the noble and learned Lord in reply, because it is a technical question.