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

Debate between Lord Palmer of Childs Hill and Lord Rosser

Tuesday 29th July 2014 Lords Chamber

[Lord Rosser (Lab)]

My Lords, we have an amendment in this group. The noble Lord, Lord Thomas of Gresford, has made a strong case. As he said, we discussed the issue in Committee, and our amendment is the same as that which we then proposed.

We simply seek a process that would enable issues to be raised by the family on behalf of the member of the services who has died, whether the death occurs before a complaint has been made—when evidence comes to light subsequently that indicates that a complaint could be pursued—or whether death occurs when a complaint is already going through the process but has not been finalised.

Responding for the Government, the Minister in effect said that where the complainant had died, whether before a complaint had been made or after a complaint had been made but not finalised, the chain of command could decide to investigate that complaint, but that it was a matter entirely for the chain of command as to whether they did so. The Minister referred to the need for a complaints system to be fair and,

“to give equal consideration to all parties who may be involved. That means that the person making the complaint and anyone else who might be implicated in it, or otherwise affected by it, should have the opportunity to put their case”.—[Official Report, 9/7/14; col. 230-31.]

The Minister went on to say that while,

“cases involving a deceased service man or woman must be treated seriously and with respect, and that the family of the deceased have a right to know that the issues they raise will be seriously considered, the place to do this is not through the formal service complaints system. For the service complaints system to be fair, and for all of those involved to feel that it has treated them as such, it must involve all parties: the person making the complaint and those who are accused of perpetrating the wrong”.—[Official Report, 9/7/14; col. 232.]

I am not convinced that the formal complaints procedure could not handle such complaints fairly. If the evidence is not there to sustain the complaint, or there are key issues that cannot be properly investigated because the complainant, unfortunately, cannot be there, that would surely be reflected in the outcome, but that inability to obtain sufficient evidence to make a decision will not always be the case.

If, as I suspect, the Minister is not prepared to accept these amendments, or to consider the matter further, where does that leave the ombudsman in such cases? The inference must be that if a matter is not dealt with through the formal complaints system, an aggrieved party will not be able to make a complaint to the ombudsman that there has been maladministration in connection with the handling of the complaint, either through a refusal to consider it at all, or in relation to the process by which that complaint was considered.

Will the Minister also say whether or not that would be the position in respect of a complaint from, or on behalf of, a member of service personnel who is now deceased—namely, that by not dealing with the complaint through the formal complaints procedure, there could be no reference on grounds of maladministration to the Service Complaints Ombudsman? One would have thought that the ombudsman would be quite capable of making a decision on whether there was, or was not, sufficient evidence available from which to reach a fair and just conclusion.

If that is the case—I hope that it is not—and the ombudsman would have no role, do the Government really think that that is a mark of a fair complaints system which treats cases involving a deceased service man or woman seriously and with respect, and gives the family of the deceased the right to know that the issues that they have raised will be seriously considered? I am not sure that it does.

[Lord Palmer of Childs Hill (LD)]

My Lords, I intervene on just a couple of small points. I hope that the Minister will take regard of both these amendments. However, I want to highlight the difference between the two, which is subtle but important. When the noble Lord, Lord Rosser, said that his amendment was in the same form and words as it was in Committee, I was somewhat disappointed. My noble friend Lord Thomas’s amendment has some important differences from the amendment proposed by the noble Lord, Lord Rosser. My noble friend Lord Thomas’s amendment, to which I am a signatory, says that,

“the complaint may be made or maintained”,

whereas the amendment of the noble Lord, Lord Rosser, says only that it should be made. Very often, the complaint has been made before the person has died and therefore it needs to be maintained. It is not necessarily made after death.

The amendment proposed by my noble friend Lord Thomas refers to,

“next of kin, or personal; representative”.

Those are the correct terms in law, whereas the amendment of the noble Lord, Lord Rosser, talks about “relative or partner”. As we all know, a personal representative is not necessarily a relative or partner. If we are, by consensus, going to persuade the Minister and the Government to move on this issue, I hope that we will take those finer points into consideration.

Defence Reform Bill

Debate between Lord Palmer of Childs Hill and Lord Rosser

Wednesday 2nd April 2014 Lords Chamber

[Lord Palmer of Childs Hill (LD)]

My Lords, all credit is due not only to the noble and gallant Lord and my noble friend Lord Roper but to the Labour Front Bench for starting this ball rolling and developing it into an affirmative or, perhaps I should say, slightly super-affirmative Motion, to which I hope the House will agree.

[Lord Rosser (Lab)]

My Lords, the Minister explained the background to this amendment which arose from an undertaking that he gave when we last discussed the Bill. I should like to take this opportunity to explain our position on the amendment and our views on it.

We welcome the amendment as it represents a move from the Government’s previous stance that the affirmative order without any associated requirements stated in the Bill would be sufficient, if passed by both Houses, for a future Government to change significantly defence procurement services by making arrangements for such services to be provided by a company to the Secretary of State under contract. The Government’s amendment does not go as far as we would wish, given that the Government were not prepared, as we sought, to withdraw Part 1 when it became known that they could no longer proceed before the general election with their preferred option to go down the road provided for in Part 1. We argued for a super-affirmative procedure involving an independent examination of a future Government’s case for bringing in an outside company to provide defence procurement services and for a report on that independent review by the House of Commons Defence Select Committee prior to Parliament being asked to make a decision on the affirmative order. That did not find favour with the Government either.

What we do have is the Government’s amendment providing for a report to Parliament on the options for carrying out defence procurement with a requirement, as the Minister said, that one option that must be covered in the report is the carrying out of defence procurement by the Secretary of State in the way it is carried out at the time the report is prepared. In other words, the effectiveness or otherwise of the new DE&S-plus-plus organisation that started to come into effect a couple of days ago, at the beginning of this month, will have to be compared with any other proposed arrangements that a future Government may wish to introduce. That is important because the Minister said in the debate on this issue in Committee that if it had been a matter for this Government rather than a future Government, they would have looked at the outside company option—the GOCO—only if the new DE&S-plus-plus organisation now being introduced did not transform the defence procurement operation.

If a future Government adopt the same approach, the report on the effectiveness of the new DE&S-plus-plus organisation will be crucial, as will be the objectivity of that future Government’s assessment of DE&S-plus-plus and their case for believing that the GOCO option would be more successful. Proper time will be needed to evaluate and consider the report to Parliament from that future Government, as provided for in this amendment, if that Government decide they want to go down the GOCO route and not to continue with the new DE&S-plus-plus organisation.

A big concern we have about the Government’s amendment is that it does not lay down any minimum timescale, either directly or indirectly, between the report on the options for carrying out defence procurement being laid before Parliament and the associated affirmative order being considered by Parliament. A future Government, having made up their mind that they wanted to go down the GOCO route, might be tempted to try to rush through the affirmative order. In that context, I cannot help but recall that this Government, in declining to withdraw Part 1, argued that there might in future be a need to bring in the GOCO option with a minimum of delay—an odd argument, bearing in mind that the Government themselves had just had to delay their intentions on the GOCO option by at least two or three years, but nevertheless an indication of a Government’s thinking that they might seek to make the change as quickly as possible at the possible expense of proper scrutiny. Hence my comments and concerns that the Government’s amendment does not provide any real check on such an intention by a future Government.

However, despite our reservations, we shall not oppose the Government’s amendment, as it clearly represents progress towards our position and a move away from the Government’s earlier stance. We are grateful for the support there has been from other noble Lords in pressing the Government to move from their initial stance that affirmative orders, without any associated requirements that would also have to be met, were sufficient.

Defence Reform Bill

Debate between Lord Palmer of Childs Hill and Lord Rosser

Monday 24th March 2014 Lords Chamber

[Lord Rosser (Lab)]

As the noble Baroness, Lady Miller of Chilthorne Domer, said, she also raised the issue of interception capabilities in Committee when she referred to concerns over the relevance of existing legislation in the light of rapid advancements in technology, the level of application of that technology by in particular American forces operating from UK soil and the extent to which UK law did or did not apply to them.

The amendment moved by the noble Baroness does of course refer to,

“officers of other states resident in the United Kingdom”,

and officers of other states acting within the jurisdiction.

I presume, therefore, that the amendment is nation-neutral and is intended to refer equally to other countries, although I am not sure that it is intended to cover any such activities being undertaken by, for example, embassy officials of such other countries.

As far as the United Kingdom is concerned, the Interception Commissioner, as I understand it, already monitors intercepted data, including of the Ministry of Defence, so I assume that is not the real issue since that individual reports annually to Parliament and to the Prime Minister. The Government have stated that if visiting forces want to undertake interception activities covered by the Regulation of Investigatory Powers Act a proper authorisation must be obtained, that such authorisations are overseen by the Interception of Communications Commissioner, and that covert surveillance powers are subject to separate oversight arrangements through the Chief Surveillance Commissioner.

In relation to foreign military personnel, the extent to which they are exempt from local jurisdiction is regulated through status of forces agreements negotiated between the sending and the host nation, which allow a sending state’s military forces to operate within, and at the consent of, the host state.

In 1951 NATO agreed a status of forces agreement covering hosting arrangements between the alliance’s member states, and thus from our perspective applies equally to visiting forces in the UK and to British forces based in NATO countries. The 1952 Visiting Forces Act incorporated the NATO status of forces agreement into UK law. The Act and the agreement provide for foreign laws and military discipline to apply to foreign military personnel in the UK, but such personnel are still subject to UK law, and this arrangement applies equally to our forces when they are overseas. The Armed Forces Act 1996 extended the Visiting Forces Act to third countries by Order in Council.

The Government have said that the US visiting forces are thus subject to both US and UK law. At present I believe that around 9,500 US military personnel and supporting civilian staff are permanently based at various locations throughout the United Kingdom. Most UK military bases involved are used by the United States Air Force, but RAF Menwith Hill is used by the US National Security Agency. The United States visiting force is responsible for internal security at the bases that have been made available to them. The parliamentary Intelligence and Security Committee has oversight of the intelligence activities undertaken by RAF Menwith Hill, and the Government have stated that the mission at RAF Menwith Hill is conducted in accordance with UK law and with the knowledge and consent of the UK Government. The United States visiting force also declares its inventory of weapons in the UK annually to the MoD, which ensures that all weapons are appropriately licensed and stored, and the storage of US munitions on bases in the UK is governed by a 1997 agreement between the UK and the US.

I listened to the concerns raised by the noble Baroness, Lady Miller of Chilthorne Domer, just as I listened to the Minister’s response in Committee, when he gave the Government’s assurance that oversight mechanisms were in place and covered any person subject to UK law performing such activities in the UK. Clearly the Government have a responsibility to make sure that appropriate arrangements are in place to ensure that we know what is going on in our own country in the field of military and security activity, including interception of communications and surveillance, and that what is happening conforms to UK law. That means that the Government have to satisfy themselves that both oversight mechanisms and the law continue to keep pace with increasingly sophisticated technological developments. I hope that in responding the Minister will be able to assure us that that is, and indeed will continue to be, the case, not only because a Government must know what is going on within their own borders in these vital areas, but to address some of the questions and concerns raised by the noble Baroness, Lady Miller, in moving her amendment today.

[Lord Palmer of Childs Hill (LD)]

My Lords, I thank the noble Baroness, Lady Miller, for raising and giving an airing to this subject. I can only hope that this will not be the end of the discussion of this important matter. The point was made as to whether this amendment was within the remit of the Bill. I like to think that this is going to be not one that we will necessarily vote on today, but one that we will come back to in greater detail bearing in mind the reply from my noble friend the Minister.

The noble Lord, Lord Rosser, went into great detail, and I certainly do not intend to repeat his comments, but I share many of his concerns about the assurances that he seeks. Do my noble friend the Minister and the Ministry of Defence believe that, with our reduced Army, Navy and Air Force, we are more vulnerable without such interception? No one likes the breaking of privacy and no one likes secrecy, but with our Army being reduced by 20,000, our Navy by 5,000 and our RAF by 5,000 personnel, and with the increase in the Reserve Forces, which we will deal with later in the Bill, rising very slowly to reach the 30,000 level, how important is that interception, and how important is it that it is reported and transparent, as my noble friend Lady Miller asked?

That is brought very much to the forefront of our minds with the problems in Ukraine. What help or hindrance does such interception cause in the present climate of hostilities? Overall, how should such transparency be effected on forces such as those of the United States operating on UK soil?

Defence Reform Bill

Debate between Lord Palmer of Childs Hill and Lord Rosser

Tuesday 11th February 2014 Grand Committee

[Lord Rosser (Lab)]

Clause 46 deals with the issue of additional payments to employers of members of the Reserve Forces. This amendment would enable regulations to provide for a variation in the size of the payment made by specifically including provision for larger payments to be provided to small and medium-sized companies.

An Answer to a Parliamentary Question in 2010 revealed that at that time 15% of current TA members came from large organisations employing 500 people or more, 17% came from medium-sized organisations employing between 50 and 499 people, and 17% came from small organisations with between one and 49 employees. Self-employed people made up 5%, with unemployed people, including students, making up 42%, and the mobilised TA making up the remaining 4%.

When the Minister responds, perhaps he could say whether the percentages that I have just quoted are basically the same today, some four years later, in respect of where current TA members come from. If that is the case, are the Government looking to change that breakdown by employment of sources of Reserve Forces recruitment, bearing in mind that one of the key roles of the reserves in future will be to provide key specialist skills needed to support our Regular Forces to a greater extent than today?

I should like to raise a question about reservists who are unemployed—in particular, to ask the Minister how Jobcentre Plus views unemployed potential reservists going off for extended periods, in light of the requirement that they should sign on and apply for jobs on a regular basis. Presumably we should be encouraging the unemployed to consider reservist occupations; so the question of how that fits in with the requirement to sign on for benefits is of some importance.

The figures given in the Parliamentary Answer to which I referred indicate the importance of small and medium-sized firms as a source of reservists. The additional payment proposed over and above the current arrangements is, I believe, £500 a month for each month in which a reservist is mobilised. The question is: will that prove to be a sufficient incentive for smaller firms, bearing in mind that the impact on them of one or more of their employees being reservists, and away from the workplace for periods of time, could be greater than for a large firm that has more resources, both human and financial, at its disposal to cover for employees away on Reserve Forces commitments?

I appreciate that we want to draw the attention of employers to the benefits to them of their employees being reservists and the positive impact that this can have on career development, but that may not necessarily be the first point that will strike a small employer when faced with the potential problem of covering for an employee away on reserve duties; there are many small employers in the IT field, which is a skill that we look to reservists to provide. A survey by the Federation of Small Businesses in 2012 suggested that this might be an issue, but I hope the Minister will say whether that is proving to be the case in respect of small and medium-sized firms.

We believe that there is a case for flexibility over the size of the additional payment in relation to small and medium-sized businesses, but we want to hear what the Government’s intentions are on the points I have raised, including how specific or otherwise the regulations relating to these payments are likely to be. I beg to move.

[Lord Palmer of Childs Hill (LD)]

My Lords, I am not happy with this amendment. Having listened to the explanation by the noble Lord, Lord Rosser, I shall explain why. Small and medium-sized enterprises—I was the director of one for many years—are concerned not so much with the money but with replacing the person. The noble Lord, Lord Rosser, touched upon that. I do not think that money is the problem. Giving SMEs a bit more money does not solve the problem that a key person in a very small organisation is not there. The argument for larger payments to smaller companies will only annoy larger companies which are the source of reservists—or territorials, at the moment.

The amendment in the name of the noble Lords, Lord Rosser and Lord Tunnicliffe, also mentions the self-employed. The idea of the self-employed going into the reserves under the new arrangements is that they will receive £500 a month, or whatever it is, to substitute for their self-employed earnings. That is a decision that they would need to make, and I hope they will make it positively; but the self-employed person is not so much worried about the £500 per month substitute for earnings from their customers or their clients as about keeping their customers and their clients while they are away, and money does not solve that.

I was interested in the comment made by the noble Lord, Lord Rosser, about the unemployed. It was a point that I had not thought about, and I, too, would welcome the Minister’s reply on that point.

--- Later in debate ---

[Lord Rosser]

Amendment 18E seeks to amend the Criminal Justice Act 2003 so that physical or verbal assault upon a member of the Reserve Forces or a member of their family would be classed as an aggravating feature of the crime and should be reflected in the sentence handed down where the prosecution could establish that service in the Reserve Forces was the motive for the assault. We know from surveys of Armed Forces personnel that physical and verbal assaults on them motivated simply by the fact that they are service personnel run at a surprisingly high rate. On a much more severe scale, we have had a recent example of a member of our Armed Forces being murdered on our streets simply because he was a member of our Armed Forces.

Attacks on service personnel, whether physical or verbal, are totally unacceptable, do nothing to assist recruitment and retention, and run contrary to the esteem in which members of our Armed Forces are held by the overwhelming majority of the population, who recognise that they are willing to put their lives on the line in defence of our country’s people and interests. We need to do as much as we can to reduce the incidence of assaults, particularly at a time when we are seeking to recruit substantial additional numbers into our reserves. I say once again that if the Government do not believe that this amendment is the best way to achieve that objective, I hope that the Minister will indicate in his reply whether they regard the issue that I have raised as a real problem and, if so, what courses of action they are taking or intend to take to address it. I beg to move.

[Lord Palmer of Childs Hill]

My Lords, I hope that the Minister will include in his reply what instances there have been of confusion about what a “service person” should be. I would have thought that under existing legislation “service person” would include all the things that are included in proposed new subsection (7) in the amendment. Has there been any experience that “service person” has not been taken to include the people mentioned here? It seems a rather worthy thing to protect people even more and make sure that they are included in the criminal justice legislation, but I wonder whether there is reason to believe that any of this has been necessary in the past.

Defence Reform Bill

Debate between Lord Palmer of Childs Hill and Lord Rosser

Monday 3rd February 2014 Grand Committee

[Lord Rosser (Lab)]

My Lords, I should like to talk first about the amendment before progressing to brief comments on Amendments 2, 3, 4 and 5. Clause 1(1) provides for the company providing defence procurement services or,

“another company … to acquire from the Secretary of State rights in or over premises and property used for the purposes of”,

defence equipment and support. Under what circumstances might that involve a company other than a company providing defence procurement services? The Bill makes no reference to conditions on maintenance and upkeep. It would be helpful if the Minister were to indicate the key conditions that would apply to the company concerned, bearing in mind that the premises will continue to be owned by the Government and that the defence procurement service operation could, in certain circumstances, be transferred back under complete government control.

Will the Secretary of State be continuing to oversee the upkeep of the premises, and would it be the Secretary of State or the company concerned that would renegotiate any rental or leasing of goods, equipment or property transferred under this clause? Will it be open to the company concerned to rent or lease out property acquired under subsection (1)(b)(i) that is not being rented or leased out at the time of acquisition? Will the new government trading entity responsible for DE&S from April this year be operating under arrangements in respect of property and premises similar to those intended under subsection (1)(b)(i), and, if not, what will be the arrangements in respect of property and premises that will apply to the new DE&S organisation?

Amendments 2 to 5 stipulate action that has to have been undertaken or requirements that have to be met before the arrangements for providing defence procurement services can be brought into force. The Bill appears to be largely silent on these matters. Amendment 2 requires the Secretary of State to publish guidance on the operation of the GOCO contract, which has to include,

“the system by which available defence contracts will be advertised”,

an issue of some importance, not least to small and medium-sized enterprises. Amendment 2 also puts a responsibility for operating the GOCO contract,

“to produce and report annually against progress on an export strategy”.

At the moment, we do not know—and neither do potential bidders—how available defence contracts will be advertised. This is an area in which transparency and openness is essential if we are to provide a level playing field for those interested in bidding. Perhaps the Minister can also say if the move to a bespoke, central government trading entity from April this year will or could lead to a change in how contracts are let or advertised, bearing in mind that we are to see the introduction of a significant element of private sector support.

Likewise, the extent to which equipment to be used by our Armed Forces can also be sold to other countries is an important aspect of our export strategy, and makes a valuable contribution to our export earnings. Such exports also provide us with important links, influence and contacts with other countries and their armed forces. If there were to be a change in our defence procurement arrangements, we need to ensure that an outside company operating a GOCO contract is mindful of the importance of defence exports and continues to give this area of activity the priority it needs. Perhaps the Minister can say whether the setting up of a DE&S as a bespoke central government trading entity from April, with new freedoms, flexibilities and private sector support, will or could lead to any change in approach as far as the potential for defence exports is concerned.

Amendments 3 and 4 provide for contractual obligations to be placed on the company operating the GOCO contract under subsection (2), specifically including provision to prohibit the sale of financial securities in any publicly listed company appointed under subsection (2) where such sale would result in a change of majority ownership; a provision to require non-UK companies to establish special security arrangements for the operation of the contract; and provisions to disqualify certain categories of individuals, as stated in the amendment, from a directorship of the company operating the GOCO. Amendment 5 defines special security arrangements, as referred to in proposed subsection (7A)(a) in Amendment 4.

The purpose of Amendments 3 to 5 is to draw attention to the possibility of unacceptable foreign influence over British defence interests as a result of the GOCO operation, with the private sector involvement and the consequential issue of the ownership or possible change in ownership of one or more of the companies concerned. There is also the issue of possible conflicts of interest at director level and how that will be addressed or avoided, and that is the subject of Amendment 4.

I am sure that the Government are more than aware of the significance of these issues, and I hope the Minister can say something about how they would have been addressed had the GOCO option been pursued. It would also be helpful if the Minister can say how these issues will be addressed in DE&S organisation from April, with its newly significant element of private sector support and its separate governance and oversight structure.

[Lord Palmer of Childs Hill (LD)]

My Lords, the noble Lord raises some interesting points, which the Government should take cognisance of. However, I ask those who tabled the amendment and the Minister whether these issues should be included in primary legislation. I jotted down the noble Lord’s points as he spoke. He spoke about the premises, and he raises important points, but those are points you deal with in contracts, when you have a lease—whether it is a repairing lease or not. It is not something one would expect to see in primary legislation.

The noble Lord talks about export strategy and the importance of defence exports. I could take this even further: the Ministry of Defence, which is very much involved in defence exports, should also be working closely with the Business Secretary to promote exports. Very often they operate in their own silos rather than together. However, that is not something which would appear in primary legislation.

The noble Lord also talks about foreign influence over defence interests, and I hope the Minister will respond to that point; however, again, it is not a matter which needs to be addressed in primary legislation. I await my noble friend’s answers to these questions but I think they are matters for regulation and secondary legislation rather than being in the Bill.

Police and Criminal Evidence Act 1984 (Armed Forces) (Amendment) Order 2012

Debate between Lord Palmer of Childs Hill and Lord Rosser

Wednesday 5th December 2012 Lords Chamber

[Lord Palmer of Childs Hill]

My Lords, I welcome the thrust of the Motion of Regret from the noble and learned Lord, Lord Scott. It comes from someone who contributed five times during what became the Protection of Freedoms Act, so it is not a flash in the pan. I also look forward to the Minister’s detailed reply for the Government. I should like to make a point that to some extent has already been made: the point of substance in the noble and learned Lord’s Motion is to respect the rights of the citizen when considering DNA or fingerprint records, and I emphasise that.

Prior to the Minister’s comment, which the noble and learned Lord apparently welcomes, I would like to say that the Government have taken a big step forward in enacting the Protection of Freedoms Act 2012, which sets in place a system of deletion and destruction consistent with the Marper judgment, which has been referred to, and human rights obligations. It is clear to anyone who looks at how DNA records are apparently kept, though, that absolute care must be taken when dealing with the material. It is both highly personal to the individual from whom it is taken and an important tool in the detection of crime.

Time is needed, of course, to put in place the policies and procedures to give accurate effect to the legislation passed by Parliament. The DNA evidence from those who have been responsible for crimes and those who have not needs to be sorted, and I gather that that evidence is voluminous and there is a time element. I am happy, and I hope that the noble and learned Lord will be too, that the Government will, we hope, indicate that they will have the long-term position resolved by mid-2013, as I understand it—perhaps even sooner; that the updated Armed Forces policing regulations will follow; and that both will be delivered according to the timetable. I welcome the clarification that this Motion will, I hope, produce.

[Lord Rosser]

My Lords, unlike the noble and learned Lord, Lord Scott of Foscote, I do not have the advantage of knowing what the Minister is going to say in reply. Indeed, I did not even expect that the noble Lord, Lord Taylor of Holbeach, would be the Minister replying; I was under the impression that this was a defence issue.

The order that we are covering came into force on 30 October this year, just one month ago. It amends the Police and Criminal Evidence Act 1984 (Armed Forces) Order 2009 by providing that biometric data taken from someone being investigated for a service offence by service police can be retained for up to four years but no longer, unless within that period the person is convicted of the service offence. The Protection of Freedoms Act 2012 amended the Police and Criminal Evidence Act 1984 and introduced different rules and requirements for the retention of biometric data taken from arrested people. However, the Armed Forces are not covered by the Protection of Freedoms Act.

PACE also only applied to criminal investigations being conducted by the civilian police. However, under Section 113 of the 1984 Act the Secretary of State can by order apply certain provisions of the 1984 Act to investigations conducted by the service police. This was done in relation to the taking and retention of biometric data by way of the Police and Criminal Evidence Act 1984 (Armed Forces) Order 2009, which has since been amended by the Police and Criminal Evidence Act 1984 (Armed Forces) (Amendment) Order 2011, and again by the 2012 order, which we are discussing now.

The 2011 order amended the 2009 order by increasing from two years to three the time limits that apply under that order to the retention of fingerprints, samples and impressions of footwear, and the 2012 order amends the 2009 order to allow material taken on or after 31 October 2009 to be retained for up to four years from the date on which it was taken, unless during that period the person is convicted. For material taken before 31 October 2009, the four-year period runs from that date.

It seems that the Government regard this 2012 order as a holding measure, as the intention apparently is to introduce a new order once the relevant provisions of the Protection of Freedoms Act 2012 have been brought into effect, and that that new order will broadly replicate for service personnel the 2012 Act’s provisions on retention of biometric data for civilians.

As the report from the Secondary Legislation Scrutiny Committee sets out, the changes that have been made and are still to be made to the Police and Criminal Evidence Act 1984 arose from a ruling in 2008 by the European Court of Human Rights that the relevant provisions in Part 5 of PACE were in breach of Article 8 of the European Convention on Human Rights. Those provisions in Part 5 allowed for the indefinite retention of fingerprints and DNA samples when there had been no conviction. As a result, Part 5 of the 1984 Act was amended by the provisions in Chapter 1 of Part 1 of the Protection of Freedoms Act 2012. However, those provisions in the 2012 Act are not expected to be commenced before mid-2013.

The purpose of the 2009 order, and subsequent amending orders in 2011 and now 2012, was, we are told by the Ministry of Defence, to make interim provision that would be compliant with the European Court of Human Rights ruling and allow the service police to retain material until Part 5 of PACE was amended. The Secondary Legislation Scrutiny Committee has commented that the practical effect of continuing to bring forward these orders, extending the period for which data can be held, is potentially to enable the material to be retained indefinitely. The order that we are now discussing means that the interim provisions will be in place for at least five years after the European court gave its judgment, and even longer if there is further delay in commencing the relevant provisions of the 2012 Act. The committee has also questioned whether successive statutory instruments with the practical effect of potentially allowing the indefinite retention of material taken by service police can be considered compliant with the European court’s judgment.

These are all points which deserve a considered response from the Minister. When he replies, perhaps he could also say why the relevant provisions of the Protection of Freedoms Act 2012 are not coming into force until at least the middle of next year. In Committee on the Protection of Freedoms Bill, the then Home Office Minister rejected our amendments providing for the retention of DNA and fingerprint profiles for six years, a longer period than that proposed by the Government and now incorporated in the terms of the Protection of Freedoms Act. We were told that there was a need for balance between public protection and individual freedoms, and that the Government considered that they had got the balance right and we had got it wrong. One would have thought that after that the Government would have made every effort to bring into effect the relevant provisions of the Protection of Freedoms Act as soon as possible, not to find themselves in a position where they are putting forward an order that specifically provides for the retention of biometric data for a longer time than the Government said struck the appropriate balance and rather nearer the time in years that we were arguing was appropriate.

Why was it not felt right to make provision within the Protection of Freedoms Act 2012 for matters relating to the investigation of service offences, at least in relation to the taking and retention of biometric data if not to other areas, to be brought within the terms of Part 5 of the Police and Criminal Evidence Act 1984? Presumably, the situation at the moment is that if a member of the Armed Forces is being investigated by the civilian police, the provisions of the 1984 Act apply to the investigation directly, but that if that same member of the Armed Forces is being investigated by the service police then the 2009 order—as amended by the 2011 and 2012 orders—applies. Is there any reason why it is essential that this distinction continues to apply in all instances?

We understand the reasons why the noble and learned Lord, Lord Scott of Foscote, has drawn this order to the attention of the House. Whether or not one believes that the Government’s decision on what specific action to take to meet the ruling of the European Court of Human Rights was appropriately balanced, it is still relevant to ask why it will be at least just over three years after taking office, and five years after the ruling, before the Government implement their decision on how to comply with a judgment with which they are not in disagreement.