Defence Reform Bill
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Lord Rosser (Lab)
We nearly had an entire afternoon and evening disappear.
We wish to associate ourselves with the comments made by the Minister on the commitment and dedication of our Armed Forces.
We are in a remarkable situation today, in that we have the Second Reading of a Bill that provides, among other things, for major changes in procurement and support of defence equipment, yet just over two hours or so before this debate started the Secretary of State was making a Statement in the other place on defence procurement that significantly altered the Government’s position. That is a sign not of bad luck but of bad judgment, and an indication of the extent to which procurement policy now appears to be being made on the hoof. However, despite the Statement by the Secretary of State earlier this afternoon, much of which the Minister has reiterated, this Bill still has three main parts, including Part 1 on defence procurement.
Part 1 sets out the arrangements for changing Defence Equipment and Support and making it into a government-owned, contractor-operated organisation. Part 2 establishes a statutory framework for the governance of Ministry of Defence single-source contracts—that is, contracts that are not subject to a legal obligation to be advertised and competed for. Part 3 makes several amendments to the regulations governing the Reserve Forces in the light of the enhanced role our reserves will play in future.
The Government have been considering two options for the future operating model for Defence Equipment and Support; namely, the GOCO entity or the public sector comparator under which DE&S would remain entirely within the public sector. Legislation is required to pursue the former option and, even though it had not been the Government’s intention to make a final decision on whether to pursue the GOCO option until next summer, the relevant enabling legislation was included as part of this Bill. The Secretary of State has now announced that he has decided not to continue the present commercial competition, which was no longer a competition because there was only one bidder. Instead, the Government have decided to do what the Secretary of State describes as building on the DE&S-plus proposal. But his last-minute proposal is, as yet, only in outline.
In respect of our Reserve Forces, the Bill contains four key measures. These are renaming the Territorial Army, expanding the powers to call out the Reserve Forces, introducing new financial incentives for the employers of reservists, and exempting reservists from the statutory two-year qualifying period required to bring an unfair dismissal case to an employment tribunal. These measures, which require legislation, are part of the Government’s policy for reconfiguration of the Army into two distinct elements, a high readiness reaction force and an adaptable force. This change is associated with the reduction in the size of the Regular Army by 20,000 personnel by 2020, and also involves a greater integration of the Territorial Army into the Army structure with an expansion in the roles that the reserves will undertake and an increase, by 2018, in the number of trained reservists to 30,000.
Single-source contracting accounts for approximately 45% of all Ministry of Defence contracts and equates to £6 billion per annum. At present, such contracts are placed under a non-legally binding framework, which can be amended only on the basis of consensus. A review of the current arrangements has been undertaken, which has led to the proposals in Part 2 of this Bill for a new statutory framework for single-source contracts. There is also provision for a civil penalty regime to ensure compliance, and the creation of a Single Source Regulations Office, which is intended to ensure the regime is kept up to date, monitor the application of the regulations, and provide binding determinations in the event of disputes between the Ministry of Defence and single-source suppliers in its role as an independent expert in single-source procurement.
On the face of it, one would not now expect this Bill to be the subject of great controversy, and particularly so in the light of the Secretary of State’s announcement earlier today. We also hold the view that defence procurement and support is in need of reform. Any difference of view will come over how that reform should now be achieved in the light of recent developments. We share the view, recently expressed by the noble Lord, Lord Levene of Portsoken, that the review of materiel strategy, which has been going on for some time, needs to be brought to a conclusion in view of the uncertainty for the future it creates and the amount of time and effort that is being expended on it, and that the quickest and most straightforward solution is via DE&S-plus, subject to that embracing appropriate employment and pay freedoms.
That solution is also not as far removed as the GOCO option from the proposal we made for reform of defence procurement. However, it appears that the Government intend to leave Part 1 in the Bill, which, as it stands, would provide the necessary legislative powers to set up a GOCO, with little further ado, at a later date. Doing that will simply perpetuate the uncertainty over the future arrangements for reform of defence procurement, which will be of benefit to nobody, least of all our Armed Forces. It means that the change could be made to a GOCO without proper scrutiny, and leaves the suspicion that the announcement today by the Secretary of State represents little more, as far as the Government are concerned, than a stop-gap solution.
The Secretary of State’s Statement earlier today said that the change in government policy on procurement that he was announcing would allow the Ministry of Defence, “at a future date”, to retest the market’s appetite for a GOCO—a statement that will simply continue the uncertainty to which the noble Lord, Lord Levene, referred in his recent report. Perhaps the Minister could make the situation worse, or, alternatively, improve the situation in relation to future uncertainty for the proposed new DE&S organisation and its staff, by telling us what the phrase “at a future date” is meant to mean. Is it intended to mean not before the next general election, or is it a longer timescale than that?
It was the day before Report stage in the House of Commons last month that the Government announced that one of the two remaining consortia bidding for the government-owned, contractor-operated organisation had withdrawn from the competition, and that work was under way to determine whether it was in the public interest for the Ministry of Defence to proceed with only one commercial bidder and the public sector comparator, DE&S-plus. It had already been made clear before then that the Government’s strong preference was for the GOCO, and that they would be testing this proposition through a commercial competition and against that public sector comparator. The impression was certainly given, and remains after today’s announcement, that the DE&S option was in essence being undertaken to provide a benchmark to justify the GOCO rather than it ever being the option the Government would take if they could avoid it.
Many concerns have been raised in a number of quarters about the proposal to transfer the whole of defence acquisition and support to a private contractor. Those concerns have related to potential conflicts of interest, the length of the contract, how ministerial and parliamentary oversight will be provided, what financial risks would actually transfer to the GOCO, how a GOCO would make money while also saving the Ministry of Defence money, what the implications would be for our international partners and what their reaction would be to the change.
A further key question, though, is why it has taken three weeks from the day before Report stage in the House of Commons to today for the Government to decide that their declared key objective for ensuring a rigorous evaluation process of the GOCO option—namely, a commercial competition—was no longer valid or achievable when the competition was somewhat diminished in rigour once the number of competitors had been reduced to one. The suspicion must be that the Government were in reality so wedded to the GOCO option as their vehicle for achieving the reform of defence procurement—a reform that we also agree is needed—that they were prepared to contemplate proceeding without a commercial competition; in other words, a form of single-source contract. That is a further reason why there are question marks over why Part 1 remains in the Bill despite today’s announcement, and a feeling that if the Government were prepared to contemplate proceeding with the GOCO option without any commercial competition, that is what they may be tempted to do at a later date if Part 1 remains in the Bill.
The position should be that if a Government decide that they want to achieve reform of defence procurement at some stage in the future through the GOCO route, they should be required to do so through means of a parliamentary Bill at the time to justify their stance and their new proposal, and not be able to do so without proper scrutiny using a parliamentary Bill that had been passed some time previously and during the course of which, before it had even been discussed in this House, the Government announced they no longer intended to proceed with the now non-existent competition and its single proposal or bid. We will certainly be pursuing the question of why Part 1 remains in this Bill, since no satisfactory explanation has been given as to why it should remain, rather than be brought back for full scrutiny in a further Bill if a Government decided to go down the GOCO route at a future date. I should like to ask the Minister how much public money has been spent on this competition exercise so far, and whether it is anticipated that there will be claims from any of the consortia—not least the one that was still left standing, which must also have invested a considerable amount of time and effort in preparing and submitting a proposal that the Government have said ran to more than 1,200 pages.
The other area where the Government have run up against problems is in relation to the increase in our Reserve Forces. I want to make it clear that we have previously expressed our support for the expansion of our Reserve Forces, and that remains our position. However, there needs to be transparency and openness about the progress being made on applications, recruitment and trained strength of our Reserve Forces. The UK Statistics Authority has said that some aspects of the Government’s figures are not robust enough. The Secretary of State has said that he will publish before the end of this year the targets to which the Government are working. On 20 November in the House of Commons the Secretary of State said that he was minded to accept in principle—as the Minister has said—a new clause that provided for an annual report by an external scrutiny group of Reserve Forces and cadets associations, and indicated that he would introduce an amendment in your Lordships’ House that reflected that new clause. We await it to see whether the new clause will provide for the transparency and openness needed in the Government’s plans for our Reserve Forces.
One aspect on which we have still not received an answer is over the apparent change of policy from that announced by the previous Secretary of State that the reduction in the number of regulars would not take place until we had seen the necessary improvements in training, equipping and numbers in the reserves. Is that still the Government’s policy, and if it has changed—and there may well be good reasons for a change—what are those reasons and what is the policy now? Can the Minister say whether it is the Government’s view that it would be consistent with the SDSR to proceed with a further tranche of redundancies for our Regular Forces irrespective of the progress made in the recruitment of additional Reserve Forces? If to do so is judged to be inconsistent with the SDSR, what part of the SDSR planning assumptions would be changed to keep the contraction in our forces in line with the SDSR?
In the light of the Secretary of State’s statement that he will publish before the end of this year the targets on reserves to which the Government are working, can the Minister say whether those targets will indicate not just overall numbers but the targets for the different types of skills and roles for which the additional members of our Reserve Forces are being recruited? Will any assessment be given of the overall quality of personnel being recruited?
Perhaps the Minister can also give us the latest update on progress on recruitment to our reserves. Is the recruitment being done by Capita or have others been called in to either supplement what it is doing on recruitment of reserves, take over from Capita, or advise and monitor it on what it is doing. As has been said, the attitude of employers is crucial. Employers in the fields of, for example, cybersecurity and the medical world may well be more enthusiastic than others in seeing their staff join the reserves as the knowledge and experience they will gain in those fields as members of the Reserve Forces may well be of direct benefit to their employers. On the other side of the coin, if such staff were called up due to a major military operation, it might just be the time when their companies or organisations also needed them most.
There will be much to discuss in Committee: why the need for Part 1 of the Bill to remain; how the just announced to be transformed DE&S-plus organisation within the public sector will function and operate; and why the Government are still willing to perpetuate uncertainty over future defence procurement in their apparent determination to try to introduce a GOCO at a future unspecified date. Part 2 of the Bill on single-source contracts will need close consideration. We support the concept and the intentions, but this part of the Bill received only limited consideration in the other place and, once again, this House will have to do what the other place was unable to do. The proposals on our Reserve Forces will, I am sure, be the subject of much detailed consideration and debate, and we wait with interest to see the amendment that the Secretary of State told the other place he would bring forward in this House.
Government policy on defence procurement is in a mess and now bears all the hallmarks of being made up as we go along—not least because the prospect that there might be only one commercial bidder apparently never occurred to the Government. What is needed now is a period of stability and certainty on defence procurement and, in the light of the breakdown of the commercial competition for a GOCO—for the new, just announced, but as yet unclear, variation of a DE&S-plus organisation in the public sector—to be given every chance and every encouragement to deliver the reform in defence procurement and support which nearly everyone believes is needed and necessary.
Defence: Type 26 Global Combat Ship
Lord Rosser Excerpts(10 years, 5 months ago)
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Lord Astor of Hever
My Lords, although sharing a common acoustically quiet hull, the Type 26 will be delivered in two variants: a force anti-submarine warfare variant and a general purpose variant. All will employ a tailored-mission approach to operations, allowing equipment and crew to be reconfigured to meet changing operational requirements and the future demands of the maritime and joint environment.
Lord Rosser (Lab)
My Lords, is it the intention that the Type 26, as well as being used on naval combat operations, should also be capable of being used on humanitarian missions? If so, what kind of such missions?
Lord Astor of Hever
My Lords, it is absolutely intended that that is one of the roles that the Type 26s will be used on. We are building a complement of Type 26s that, from the initial ship right through to the end of the class life, will provide us with the flexibility to respond to a wide range of tasks.
Armed Forces (Remission of Fines) Order 2013
Lord Rosser Excerpts(10 years, 6 months ago)
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The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con)
My Lords, there is one instrument for the Committee’s consideration today. The Armed Forces (Remission of Fines) Order 2013 is required because, having introduced arrangements to set a term of imprisonment as a means of ensuring that fines are paid, we must also be able to reduce that term in proportion to any reduction of the financial penalty at a later date. This order does that, reflecting the position of the criminal courts.
Fines are meaningless unless there is a mechanism to ensure they are paid. The risk of imprisonment will help to deter those who otherwise might default on their fines, but for those who fail to pay their due, it is only fair and reasonable for them to expect any consequential terms of imprisonment to be proportionate to their fine. To put this into the service context, the alternative period of imprisonment comes into play only when a financial penalty enforcement order is made.
The services have mechanisms in place to recover fines from serving personnel through deductions from their pay. Financial penalty enforcement orders are the mechanism to recover fines from those who have left their service. Financial penalty enforcement orders apply to a person who is neither subject to service law nor a civilian subject to service discipline, but they also apply to certain personnel who are subject to service law as a special member of a reserve force.
Financial penalty enforcement orders may be made by the Service Personnel and Veterans Agency when such persons have failed to pay all or some of a financial penalty that has been awarded against them. The financial penalty enforcement order may be registered with the relevant court—in England and Wales a magistrates’ court—to be enforced, and in due course, if the fine continues to remain unpaid, the person may be imprisoned for a time in proportion to the fine outstanding.
By way of background, the Crown Court in England and Wales must fix a term of imprisonment to be served in default of any fine imposed on a defendant aged 18 or over. This is necessary and right to enable fines to be enforced. Separately, the civilian courts also have the power to reduce or remit entirely a fine following a review of the offender’s financial circumstances. Where the court does so, and a default term of imprisonment has been fixed, the court must proportionately reduce that default term of imprisonment.
I turn to the service courts. The court martial already has a similar power to reduce or remit a fine, but it has not, until now, been required to set a default term of imprisonment when fining a defendant. The Armed Forces Act 2011 inserts new Sections 269A and 269B into the 2006 Act. The first of these new sections requires the court martial, when it imposes a fine on a person aged 18 or over, to specify a term of imprisonment to be served if the fine is not paid and an enforcement order is made. Similarly, the second new section enables the court martial, when making a service compensation order against a person aged 18 or over, to specify the maximum term of imprisonment which may be imposed if the compensation is not paid.
These new provisions, which have come into force, are modelled on those in the equivalent civilian legislation. This order completes the necessary legislative framework for the services in dealing with financial penalties.
Lord Rosser (Lab)
I thank the Minister for his explanation of the need for this order and the objective that it is intended to achieve. I take it from the documentation that we have received and from what he has said that it is only a court martial that is now required under the new Section 269A to fix the term of imprisonment if the fine that it is imposing is not paid, that this does not apply if the fine is being imposed after a hearing before a commanding officer and that, consequently, only cases originally heard by a court martial will be covered by the terms of this order in respect of the term of imprisonment being proportionately reduced if the fine is subsequently remitted in whole or part.
I also understand that the reference in paragraph 8.1 of the Explanatory Memorandum to financial penalty enforcement orders being enforced in “prescribed civilian courts” applies in cases where the offender has left the Armed Forces or is no longer a civilian subject to service discipline and, if the fine was not paid by an offender still in the Armed Forces or by a civilian still subject to service discipline, enforcement would be a matter to be dealt with in the service discipline procedures and arrangements.
Finally, was the discrepancy between the requirements on the service courts and civilian courts in respect of a proportionate reduction in the term of imprisonment one that we well spotted, or did it come to light as a result of an actual case?
We have no objections to this order or to its objective of bringing the service provisions in this specific area in line with the equivalent civilian provisions.
Armed Forces: Legal Challenge
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Lord Rosser (Lab)
My Lords, this is an important issue, and I, too, express my thanks to the noble Lord, Lord Faulks, for providing the opportunity to discuss the matter in some detail and shortly to hear the Government’s position from the Minister. Virtually all—if not all—of your Lordships who have spoken have been able to call on their direct and practical knowledge of the law or on their direct and practical knowledge of the realities of conflict and the realities of the way in which our Armed Forces operate and work on our behalf. Unfortunately I am not in that position. Like the noble Lord, Lord Ramsbotham, I am extremely appreciative of the Library note.
Although, as has been said, there have been previous decisions by courts that have given rise to the concerns that have been expressed today, it has been the Supreme Court judgment last June, apparently changing a Supreme Court judgment from 2010, which has raised the profile further of the issue of our Armed Forces and their vulnerability to legal challenge. Shortly before the Supreme Court judgment, in May this year the High Court apparently ordered hundreds of inquest-style public hearings to investigate alleged unlawful killings and mistreatment of civilians by British forces in Iraq. Recent legal challenges to the Armed Forces have fallen into two main categories: those relating to the Armed Forces’ treatment of civilians and those which relate to the Armed Forces’ treatment of their own personnel.
Although I am not a lawyer, I would like to talk about the Supreme Court judgment and what, as I perhaps mistakenly understand, it said. The proceedings concerned three sets of claims arising from the deaths of three of our servicemen and serious injuries to two others in Iraq. The first set, brought in negligence, arose from a friendly fire incident involving British tanks and alleged failures by the Ministry of Defence properly to equip the tanks involved and give the soldiers adequate recognition training. The second set arose from the detonation of improvised explosive devices level with the Land Rovers in which the soldiers were travelling and claimed that the Ministry of Defence breached the European Convention on Human Rights by failing to take preventive measures to protect life in the light of the real and immediate risk to life of soldiers who were required to patrol in the Land Rovers. The third set, like the first, was also brought in negligence, by—I believe—the son of one of the soldiers killed in the Land Rover incident, and claimed various alleged failures on the part of the Ministry of Defence.
The Ministry of Defence argued at the Court of Appeal that the Land Rover claims should be struck out because at the time of their deaths the two soldiers were not within the jurisdiction of the UK for the purposes of the European convention and because, on the facts put forward, the MoD did not owe a duty to the soldiers at the time of their deaths under Article 2 of the convention, the right to life. The Ministry of Defence also argued on the Challenger tank claims and the third set, the negligence claim, that they should be struck out on the principle of combat immunity and because it would not be fair, just or reasonable to impose a duty of care on the Ministry of Defence in the circumstances of those cases.
The Court of Appeal decided that the Land Rover claims should be struck out and that the Challenger claims and the negligence claim should proceed to trial. The Supreme Court decided unanimously, as has been said, that in relation to the Land Rover claims the two soldiers were within the UK’s jurisdiction for the purposes of the European convention at the time of their deaths. By a majority, the Supreme Court held that the Land Rover claims should not be struck out on the ground that the claims were not within the scope of Article 2 of the European Convention on Human Rights and, also by a majority, that the Challenger claims and the negligence claim should not be struck out on the ground of combat immunity or on the ground that it would not be fair, just or reasonable to extend the MoD’s duty of care to those cases. The effect of the Supreme Court’s decision was that all three sets of claims could proceed to trial.
The summary provided by the Supreme Court to assist in understanding its decisions states on the Land Rover claims under Article 2 of the European convention:
“In this area, the court must fully recognise the wide margin of appreciation to be given to the state and avoid imposing obligations which are unrealistic or disproportionate”.
It also states:
“The circumstances in which the various decisions were made need to be inquired into before it can be determined with complete confidence whether or not there was a breach of article 2. However, given the Court’s guidance on the margin of appreciation to be given to the state, it is far from clear that the claimants will be able to demonstrate such a breach”.
On the Challenger claims and the further, separate, negligence claim, the summary says that:
“The doctrine of combat immunity should be construed narrowly and should not be extended beyond its established scope to the planning of and preparation for active operations against the enemy. The Challenger claims are not within the scope of the doctrine because they relate to decisions which are sufficiently far removed from the pressures and risks of active operations against the enemy. The … negligence claim is less obviously directed to things done away from the theatre of battle so it is arguably within the doctrine”.
The summary then goes on to say:
“The circumstances in which active operations are undertaken by the UK’s armed services today vary greatly and cannot all be grouped under a single umbrella as if they were all open to the same risk of judicialising warfare. However, considerations similar to those affecting the Snatch Land Rover claims under article 2 arise in relation to whether it would be fair, just and reasonable to impose a duty of care on the MoD in this area. The question whether the negligence claims in this case entail subjecting the MoD to duties that are unrealistic or excessively burdensome cannot properly be determined without hearing evidence”.
The Supreme Court has not determined the outcome of the claims it addressed in its judgment. It has made the decision that the claims should proceed to trial. It is not for me to interpret the wording in the Supreme Court summary document, which clearly states that the full judgment of the court is the only authoritative document.
I have, however, noted what the noble and learned Lord, Lord Hope of Craighead, said today. It is clear that there is now a feeling of uncertainty over where our Armed Forces and the actions that they take now stand in relation to the law and the vulnerability to legal challenge. Whether the position will be clearer when the cases that were before the Supreme Court have been to trial remains to be seen.
The Government are clearly concerned about the lack of clarity. Subject to what the Minister has to say, the Government appear to be waiting, not unreasonably, for the outcomes of these cases in the hope that the decisions will provide greater clarity before determining what, if any, action needs to be taken and, accordingly, what advice should be given to Armed Forces personnel.
Cases are, of course, determined on their merits and on the evidence that is placed before the court, but clarity is often dependent on judgments laying down clear principles and guidelines that can be applied and taken into account by those who might be contemplating legal action and by those who feel they might be subject to legal proceedings. Nobody wants to see a situation in which our Armed Forces are less able than they are now to protect, further and act in the national interest on our behalf because of uncertainty over the legal position or because of new or changed legal considerations and the perceived or real prospect of vulnerability to legal challenge that did not exist before.
I am aware that the Ministry of Defence now has to deal with a considerable increase in claims in the light of earlier judicial decisions and no doubt also, in some cases, of a feeling that the exact legal position should now be tested. It is interesting to note that in his dissenting opinion to the Supreme Court decision, the noble and learned Lord, Lord Mance, said that,
“the approach taken by the majority will in my view make extensive litigation almost inevitable after, as well as quite possibly during and even before, any active service operations undertaken by the British army. It is likely to lead to the judicialisation of war”.
Dealing with claims costs time and money and deflects resources, human and financial, from other defence-related work. Apart, however, from the vital need to get uncertainty resolved so that proper consideration can be given as to whether and, if so, what further action needs to be taken by government, the other key issue is whether our Armed Forces, involved in or preparing for operations, are being inhibited in what they do on our behalf in the national interest as a result of uncertainties about exposure to potentially successful legal challenges and claims. I hope the Minister will be able to give assurances that that is not the case because, if it is, we are in a very difficult and serious situation.
Defence: Aircraft Carriers and UK Shipbuilding
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Lord Rosser (Lab)
My Lords, I thank the Minister for repeating the Statement made in the other place by the Secretary of State for Defence.
It is a Statement not entirely devoid of party political points. The first part of it—presumably, therefore, the more important part of it, in the Secretary of State’s eyes—continues the argument over the alleged £38 billion black hole and the cost of the aircraft carriers. It is only towards the end of the Statement that the Secretary of State refers to decisions that will result in hard-working people losing their jobs, with the consequent impact on families and local economies, which in the eyes of most will be the significant part of the Statement, along with its associated implications for the United Kingdom shipbuilding industry.
I would like to take this opportunity to express our appreciation of the work and contribution made by all those in our shipbuilding industry. My understanding is that there have already been extensive discussions between BAE Systems and the trade unions representing the workforce, seeking to work together to address the difficult situation that has arisen. All too often that is not the approach adopted when reductions in the size of a workforce have to be considered.
The news of the job losses will obviously be a major blow. Clearly, the loss of the capacity at Portsmouth to build ships will be keenly felt, although a repair and maintenance capability is being retained in the city. It is vital that we keep the skills needed to sustain our United Kingdom shipbuilding capacity, and the announcement of the decision to build three offshore patrol vessels in the gap between the completion of the major work on the two aircraft carriers and the build-up of work on the Type 26 destroyers is welcome. The retention of our shipbuilding capability is vital to our country, the defence of the United Kingdom and the long-term future of the UK shipbuilding industry.
The Statement indicated that the two aircraft carriers will be based at Portsmouth, leading to the largest level of tonnage of naval vessels at that location for a great many years. Does that mean that a decision has been made that both aircraft carriers will also be fully operational? The Statement refers to the revised agreement for the carriers and states that,
“any variation above or below that price will be shared on a 50:50 basis between government and industry until all the contractor’s profit is lost”.
By how much more does the current cost of £6.2 billion have to increase before all the contractor’s profit is lost and the Government presumably pay for 100% of any further cost increase? Can the Minister give an assurance that there have been no adjustments to the defence equipment programme in order to continue with the construction of the two carriers and retain the more than £4 billion centrally held contingency sum in the equipment plan?
Since the Secretary of State appeared to consider the alleged financial black hole and the cost of the aircraft carriers to be the issue of most importance, I will respond. As far as the alleged £38 billion is concerned, which is the Secretary of State's unverified figure, it assumes that everything which was then on the shopping list for the many years ahead was actually proceeded with, and it is dependent on the budget growth assumptions made. The 2009 National Audit Office report concluded that the size of the gap was highly sensitive to the budget growth assumptions used and that if the defence budget remained constant in real terms, the gap would be £6 billion over the 10-year period.
On the issue of whether the contract could have been cancelled by the present Government had they wanted to, the National Audit Office report said:
“The Department … considered cancellation, which was feasible and offered significant medium-term savings. It concluded that this would have been unaffordable in the short term”.
That statement does not fully square with the Secretary of State's bald assertion that he had been advised that under the terms of the contract, it would cost more to cancel the carriers than to build them. The Government proceeded with the carriers because they felt that it was in the national interest.
The NAO report also said that the contract was negotiated by the then defence commercial director, with the terms of the contract typical of those in other large defence contracts. Whether any contractor would have been prepared to take on such a major contract of the kind involving the construction of the state-of-the-art carriers on any other basis than the cost overruns being divided 90% to the Government and 10% to the contractor, is a debatable point. It is a different situation now that we are well into construction and final costs for these state-of-the-art carriers are rather more certain.
There has been a lot of conjecture about the role that the politics of the Scottish referendum may have played in the decision to keep shipbuilding on the Clyde. It would be helpful if the Minister could confirm that the decisions today were taken on the basis of what is in Britain's best interests, maintaining the future of our shipbuilding industry and our country's defence. Could the noble Lord also outline what safeguards are in place if Scotland does vote to leave the United Kingdom? None of us wants to see that but we need to know what plans he has for all eventualities. We must retain a sovereign shipbuilding capability.
Whatever difficulties we experience, this country is a proud maritime nation. We have a proud and dedicated Navy, serviced by a proud and dedicated workforce. We must maintain that across the United Kingdom and retain the ability to build the warships we will need to defend our nation, protect our interests across the world and keep us secure.
Armed Forces: Redundancies
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Lord Rosser (Lab)
My Lords, I congratulate my noble friend Lord Touhig on securing this debate on an issue that appears to be causing as much concern within our Armed Forces as it is in your Lordships’ House and elsewhere. Speaking for the Government, the Minister said in this Chamber on 22 July that there was,
“no evidence that morale in the Armed Forces has been adversely affected by the redundancy programme”.—[Official Report, 22/7/13; col. 1042.]
The Government’s view appears to be that despite the fact that the last round of redundancies was 84% voluntary and, unlike previous rounds, heavily oversubscribed, that was not an indicator of the state of morale because the Army had deliberately set out to maximise applications. I have to say that that assertion sounds just about as convincing as the claim once made by one of our major train operating companies that an increase in the number of complaints received did not indicate a rise in levels of dissatisfaction, because it had been encouraging its customers to make complaints.
I do not wish to suggest that the views of one or two individuals, however senior, are conclusive, but they rather call into question the Government’s assertion on 22 July that there was no evidence of morale being adversely affected by the redundancy programme. General Sir Nick Houghton, the Chief of the Defence Staff, was described by the Daily Telegraph in August as having told a Ministry of Defence in-house magazine that,
“one of his main concerns is that the ‘transformation’ of the Armed Forces has been poorly communicated to personnel, leaving many feeling left out and let down”.
The newspaper directly quoted him as having said:
“I think we’ve risked people becoming cynical and detached from what defence is trying to do”.
The Daily Telegraph article went on to say:
“Figures released last month showed the proportion of personnel rating overall morale as ‘low’ has risen from 24 per cent in 2010 to 55 per cent this year. The number of soldiers saying they are satisfied with service life has fallen from 62 per cent in 2010 to 48 per cent this year. The fall is steeper in the Army than in the Navy or RAF”.
Maybe the article is wrong; in which case, I am sure that is what the Minister will say when he responds. However, if it is at least broadly accurate, it certainly does not square with the Government’s assertion on 22 July about there being “no evidence”; nor does the Government’s assertion on 22 July square with a statement by a Ministry of Defence spokesman quoted in the Daily Telegraph four days later, who said:
“With any period of change there is bound to be uncertainty surrounding the future of personnel and their families which will inevitably have an impact on morale”.
My noble friend Lord Touhig referred to the Armed Forces Continuous Attitude Survey and quoted different figures on morale from those in the newspaper articles to which I have referred. But these survey figures again show a doubling since 2010 in the number of service personnel describing their morale as low, with the number of personnel stating their morale was high falling for a third successive year. What is of concern is that the Government do not appear willing to recognise that the way in which they have handled the redundancy situation and the changes in the structure of our Armed Forces has had an adverse impact on morale. After all, you cannot address a problem if you are in a state of denial that it even exists. The 2010 strategic defence and security review was rushed and a cost-cutting exercise, but morale was not helped when the reductions in personnel were subsequently substantially increased beyond those set out in the SDSR.
My noble friend Lord Touhig has been assiduous in raising the treatment of soldiers made compulsorily redundant shortly before reaching their immediate pension point. He has mentioned it again today, citing specific examples of where it has led to significant pension entitlement loss. He last raised it before today in this Chamber on 22 July. On that occasion the Government’s response was not well received and the Minister implied in his final response that he would ask his department to reflect on the unhappy reaction there had been. What further consideration have the Government given to this issue since 22 July, and has their position changed? Surely the Government recognise that this issue and the manner in which a relatively small number of people have been treated in a compulsory redundancy situation is hardly in line with the military covenant, does nothing to enhance morale and has an impact that extends way beyond the “only”—to use the Minister’s word—1.2% of those made redundant who are affected.
It appears that serious difficulties are being encountered in recruiting the significantly increased number of reservists, with a Ministry of Defence report referring to a “hostile recruiting environment” resulting from,
“redundancy downsizing, drawdown in Afghanistan and a reported (if unproven) increase in mental health issues”.
I hardly think that what is happening now over the recruitment or non-recruitment of reservists is exactly assisting morale. The morale of our Armed Forces can hardly be enhanced when the Government are in effect saying that while the policy—which we support—is for an expanded, more heavily integrated role for the reserves alongside regulars, the number of regulars will be reduced irrespective of whether we have recruited the many thousands of additional reservists who are needed to play a vital part in delivering our intended future defence capabilities.
Earlier this month the previous Defence Secretary, Dr Liam Fox, was quoted as saying:
“When I was secretary of state, I said we would only decrease the numbers of regulars when we had guarantees that we would be able to get the numbers—training and equipping up of the reserves—to match”.
That no longer appears to be the policy. When was the policy changed, by whom and for what reason? I hope the Minister will be able to give us answers because we still have not had a satisfactory answer from the Government as to why the rate of cuts in the Regular Army manpower is not dependent on the required projected rate of increase in the number of reservists being achieved. I again invite the Minister to give such a commitment. Apart from putting at risk our ability to deliver our future intended defence capabilities, failure to give such a commitment devalues the importance of the role that the reservists will play in future, which will have an impact on recruitment and in the way in which the role of reservists is regarded both by members of the Regular Armed Forces and the community at large.
This debate has drawn attention to how the Government’s approach to implementing policy, not least over the rundown in the size of our Regular Armed Forces and the associated redundancies, is contributing significantly to the downturn in morale registered in the Ministry of Defence’s own reports and surveys. What makes the situation even more difficult is the apparent government view that there is not even a problem. Our Armed Forces continue to put their lives on the line in defence of our country’s interests and on behalf of us all. The fact that they do so, and will continue to do so, with professionalism, courage and commitment should not obscure the issues over morale and trust that should now be properly addressed by the Government as a priority.
Armed Forces: Human Rights Legislation
Lord Rosser Excerpts(10 years, 6 months ago)
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Lord Rosser (Lab)
My Lords, I too offer sincere condolences to the family and friends of Lance Corporal James Brynin. These sombre moments have, fortunately, become less frequent in your Lordships’ House, but this moment is a reminder, first, that the courageous members of our Armed Forces continue to risk their lives on behalf of us all, and, secondly, that on occasions the risk becomes reality, with all the heartbreak that that brings.
On 25 June in this House the Minister said, in response to a question, that “urgent cross-government discussions” were taking place to consider the options in the light of the 4:3 majority Supreme Court judgment of 19 June on human rights and our Armed Forces. He also said that advice would be provided to members of the Armed Forces “as soon as possible”. What has been the outcome of those urgent cross-government discussions, and what is the thrust of the promised advice, which has presumably now been provided to members of our Armed Forces?
Lord Astor of Hever
My Lords, we continue to be grateful to Her Majesty’s Official Opposition for their support on Afghanistan. I can assure the noble Lord that my department is exercised about this issue and Ministers are working closely on it with the service chiefs. A number of cases are still before the courts and the legal position is not yet clear. We will continue to monitor developments closely, but I can reassure the House that, even when the ECHR does not apply, UK Armed Forces are at all times required to comply with all applicable domestic and international law. Customary international law and UK criminal law explicitly forbid torture and abuse, and our domestic law applies to members of UK forces at all times, wherever in the world they are serving.
Armed Forces and Reserve Forces (Compensation Scheme) (Consequential Provisions: Primary Legislation) (Northern Ireland) Order 2013
Lord Rosser Excerpts(10 years, 7 months ago)
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Viscount Brookeborough (CB)
My Lords, I welcome the order. It is a very worthy measure. Everyone in Northern Ireland is delighted that it is extending to Northern Ireland. I was not present when this was debated for the remainder of the United Kingdom. When the Armed Forces covenant first appeared, it was very welcome, but there was perhaps a little doubt about how it would benefit people and how it might be implemented, especially in Northern Ireland. The covenant was a stepping stone—or a foundation stone—for extending other things and showing better care support for all our soldiers, especially those who have been injured.
One could go into how difficult it was in Northern Ireland, but it is better to look at it the other way: thank goodness it has become slightly easier to introduce this in Northern Ireland. We know that there were issues with talking to the Northern Ireland Assembly, and it is most welcome that the talks went well and that we are now getting to the stage where we are able to give our soldiers, and especially our veterans, support that is equal to what they have here.
I was interested to hear the Minister refer to the aftercare service as being a “trial”. That was the first time that I had heard it talked about like that. I hope that he thinks that it is being tried because certain aspects might be very beneficial in the remainder of the United Kingdom.
Overall, this is a most welcome measure. We should not highlight the problems and how difficult the process was, but should welcome it as a great step forward.
Lord Rosser (Lab)
I thank the Minister for the explanation of the need for, and purpose of, the order. As he said, it seeks to give seriously injured service and ex-service personnel in Northern Ireland who qualify for the recently introduced Armed Forces independence payment similar access to passported benefits to that of those who qualify for disability living allowance or the personal independence payment. As the Minister said, the Armed Forces independence payment was introduced in April this year. The statutory instrument providing for the payment covered all those eligible throughout the United Kingdom, including in Northern Ireland. The payment is to cover the extra costs that seriously injured personnel who meet the eligibility criteria may have as a result of their injury.
Two further statutory instruments enabled recipients of the Armed Forces independence payment to receive additional passported benefits to which they were entitled. However, as I understand it, these further statutory instruments did not include amendments to the related Northern Ireland passported legislation, which I believe related to allowances for carers and the entitlement of pensioners to a Christmas bonus. The Minister made reference to this. This point was the subject of a discussion that established that, in this instance, the relevant Northern Ireland legislation could be amended using powers under the Armed Forces (Pensions and Compensation) Act 2004, subject to the consent of the relevant Northern Ireland Ministers.
I have one or two questions to put to the Minister. I told him about them literally two minutes ago, which was somewhat remiss of me, so I fully accept that the answers may not be forthcoming this afternoon. I would be interested to know exactly how numerous or few are the relevant Northern Ireland Ministers whose consent has had to be sought and given. It would also be helpful to know how many seriously injured service and ex-service personnel will be covered by this order relating to Northern Ireland when it comes into force on 28 October.
I assume that the additional expenditure will be small, but perhaps the Minister could confirm that the cost will be borne by UK taxpayers as a whole and also say from which department’s budget the additional costs will be met. I notice that the title of this order refers to the Armed Forces and Reserve Forces. It would be helpful if the Minister could confirm that there is parity of treatment under the terms of this order between the two forces mentioned.
We want to see the spirit and intention of the Armed Forces covenant, and its commitment that members of the Armed Forces will not be disadvantaged by the nature of the responsibilities and role they undertake, applying in Northern Ireland, and we support the order.
Ministry of Defence: Dogs
Lord Rosser Excerpts(10 years, 7 months ago)
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Lord Rosser (Lab)
My Lords, last week it was government policy being thwarted by badgers moving the goalposts; this week it is defunct, deceased dogs causing headaches. Presumably the Minister can give an assurance that no decisions to put down dogs are made on financial grounds, bearing in mind the recent disclosures about the hundreds of thousands of pounds being consumed within the Ministry of Defence on calls to 118 numbers at a time when money is in short supply. Will the Minister also clarify what percentage of military working dogs are put down before they are retired, and what percentage are retrained or re-homed on retirement?
Lord Astor of Hever
My Lords, I can give the noble Lord the commitment that no dogs are put down for financial reasons. The vast majority of dogs had to be put down as the animals’ condition impeded and reduced their quality of life. As noble Lords may know from sad personal experience, everyone will at times have to put animals to sleep when it is the only option. The death or destruction of a military working dog is subject to formal investigation and report, as required. Dogs are not usually retrained during their military service. The role that a dog undertakes is normally one which the dog has a natural inclination to perform as a result of breed characteristics and behavioural traits.
Armed Forces Act (Continuation) Order 2013
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Lord Tunnicliffe
My Lords, I have a general objection to Front-Benchers speaking from the Back Benches, but this is a subject area close to my heart. With my noble friend Lord Rosser I was part of the team which represented the Opposition during the passage of the 2011 Act. I hope that the noble Lord might be able to give us a more colourful picture of where things stand as this would seem to be an important step in the progress towards the powerful management of alcohol within the forces. I read it as an important step forward and, as such, I welcome it.
I have been involved in the world of work and alcohol since I learnt to fly in a university air squadron in the 1960s. We were still in the grip of a post-war tradition; alcohol and being part of the force were closely linked. Yes, you did not fly when you had been drinking, but virtually all the rest of the time, every evening, alcohol was part of that world. That was true in my early career as a pilot—once again, we had rules about drinking—but in the industrial relations world I lived in an enormous amount of business was done in an alcohol environment. I went into the oil world and the situation was the same. There was nothing special about me. I cannot claim that I did not enjoy it. That was the world we lived in. If you were trailing jet fuel you drank over dinner and in many social situations. It was how business was done. Looking back on it, it was wrong, in the sense that alcohol modifies how you make judgments and decisions, and you make better decisions when alcohol is averred. However, it is very difficult to change cultures where these behaviours are the norm.
I came into the railway industry in the late 1980s, and that had an alcohol tradition, for want of a better way of describing it. Public opinion came along and said, “This isn’t right”. We had the same situation, although, of course, staff would assure one that they were not under the influence of alcohol when they came to work. However, public opinion wanted something more, and we, as the management, saw that grasping that general direction was the right thing to do. Yes, a piece of legislation came along, but we had a very successful engagement with our trade unions, which saw that this was what society expected, and we introduced drug and alcohol testing. To say that it was traumatic would be too strong, but it was a shock to the industry. We drove alcohol out of the front line of the industry. It is interesting that we then recognised how we in the management, who did not have “critical responsibilities” at the time, had to follow suit. We had to set an example.
This will be, if I read it right, a shock to the services. It will need to be handled very sensitively by the chain of command and it will need a lot of help in terms of training, and so on. In aviation, it is interesting that you cannot even get a private pilot’s licence now without passing a paper which, although it is not called “alcohol management”, is all about being fit for duty and so on. That culture will become widespread, and it will seep upwards. Officers, including senior officers, will recognise that they have to set an example.
I hope that we get this right. It is important that the Armed Forces do not feel “done to”, and that they recognise the value of a change of culture. I am not suggesting that they have not been changing their culture, but this specification is very clear and makes the direction of travel absolutely clear. It will require some people to modify their behaviour, including management and leadership style. I commend the Government and the leadership of the Armed Forces for bringing forward this measure. I hope that its introduction is smooth and successful and that we can get across to the Armed Forces that it is a change that is good for them and for their safety and will be good for the long-term health and culture within the Armed Forces.
Lord Rosser
My Lords, it is interesting to note that there are now as many officials in the Box as there are Members of your Lordships’ House present. We have no issues with either of these measures. Debating the continuation order is an annual event, because, as the Minister said, it is necessary to enable the Armed Forces Act 2006 to continue in force for a further year, rather than expiring on 2 November this year. It would therefore be entirely legitimate, in a debate on that order, to raise just about any issue relating to our Armed Forces. However, I shall go to the other extreme and say very little. I raised in a debate on an earlier continuation order the question of whether, if the order were not passed, that would mean that there was no statutory basis or parliamentary authority for our Armed Forces, and the Minister responded to me on that point in writing at the time.
The Explanatory Memorandum refers to the recently introduced single system of service law. We recently had a debate on an order that provided for a reduction in the number of lay members sitting on a more serious case, and having to pass sentence where the defendant was pleading guilty. I raised a number of questions, to which the noble Lord has also responded to me in writing. I thank him for his usual and continuing courtesy, and the trouble he takes to reply to the points—at times not an insignificant number of points—raised both from this Dispatch Box and by other Members of this House.
I may come back to the Minister on his reply on courts martial and officers who are lay members, largely to seek further information about how the lay members are selected and what prior training they have had. I acknowledge the parallel with a civilian jury, who determine guilt or otherwise, and who have had no prior training—but that does not apply to those who pass sentence. If I decide to explore that point further, I will initiate the process either through a written question or by writing to the Minister.
On the continuation order, I conclude by expressing appreciation and gratitude to our Armed Forces for the vital work that they do—often, as we all know, at considerable personal risk to their well-being, and sometimes at the cost of an all too real personal sacrifice—to protect our nation and provide us with the level of security needed to establish and maintain a civilised and peaceful society.
We welcome the Armed Forces (Alcohol Limits for Prescribed Safety-Critical Duties) Regulations. There are a few points that I would like to raise and comments that I would like to make. As my noble friend Lord Tunnicliffe said, attitudes towards excessive drinking have changed in recent years, and its unacceptability and potential consequences both for the drinker and for those with whom they come in contact directly or indirectly are more widely acknowledged. We have seen changes in culture, particularly in the field of work and employment, including the transport industry.
I well remember some years ago being at a lunch attended by many, in a London hotel, and sitting at the same table as a number of senior British Rail managers. On tables all around us, some alcohol was being consumed. The senior British Rail managers had none. They would all be back at their jobs in the afternoon, and thus on duty. Being on duty having recently consumed alcohol was no more permitted for them than it would be for someone on the front line driving a train or maintaining signalling equipment. Will the Minister indicate whether the alcohol limits we are talking about in this order will in reality if not through this order apply to senior military personnel, including at the very highest level of our Armed Forces? They, too, make decisions which can have a profound impact on those they command, including on their safety, as well as on the security of this country, and on costs and finances. The fact that the impact of the decisions that they make may not always become obvious immediately should in no way detract from the requirement that, when they make those decisions, they should be in a completely fit state to do so.
The regulations provide for two maximum levels of permissible alcohol intake, one being much lower than the other. It would be helpful if the Minister could say why it has been felt desirable to have two different levels, rather than simply one—namely, the lower level—which would apply to all those duties listed here being undertaken. They are all safety critical, and judgment and reactions can be impaired by alcohol. I assumed something that the Minister confirmed, that the reason there is not zero tolerance in respect of alcohol limits is that it appears possible for two people who have had, or, more relevantly, have not had, alcohol, to produce different readings which, certainly in respect of meeting a zero tolerance standard, could result in an injustice. If, however, we are to have two different levels of alcohol limits related to the duties being undertaken, it would be helpful if the Minister could say perhaps a little bit more than is in the Explanatory Memorandum about the kind of criteria used to determine which duties should fall in which category of maximum acceptable alcohol limits.
I certainly have no intention of asking the Minister to explain why each duty listed in the order has been put in the category shown in the order, except for one particular case. Carrying out duties as a diver is shown in the higher alcohol limit category; so, too, is the duty of supervising a diver. My understanding is that, if a problem arises for a diver, the actions and decisions taken, and speed of those decisions taken by the person supervising that diver, can literally be the difference between life and death. I simply ask why it was not felt appropriate to place the duty of supervision of a diver in the much lower category for maximum acceptable alcohol limits.
The regulations do not refer to testing procedures, but I assume that the procedures will be similar to those in respect of a civilian involved in a road accident or suspected of driving with excess alcohol. If that is the case, would an individual under these regulations be tested only if they were suspected of having excess alcohol; or, in respect of some or all of the duties listed, would there be automatic testing before an individual commenced their duties; or will there be random testing; or will it be up to the superior officer concerned to decide what to do in this regard? I am not sure the extent to which carrying out the duties listed in the regulations with an alcohol intake in excess of those laid down in these regulations is an issue at the moment. If it is not, the impact of the regulations is likely to be minimal. If it is an issue, the regulations will need to be introduced and implemented with a degree of care and thought if we are not to leave our Armed Forces with a feeling that they are being singled out and cannot be trusted, as my noble friend Lord Tunnicliffe said.
Culture change, if that is what these regulations are also intended to help achieve, does not often come quickly or easily. We are, however, all too aware of the shooting dead of an officer on the submarine HMS “Astute” in April 2011 by a submariner who was at least three times over the drink-drive limit while on guard duty. The submariner had been issued with the SA80 weapon by an officer before the shooting. The officer said that he was unaware that the submariner was under the influence of alcohol at the time. The coroner said that he would recommend random breath testing for Navy personnel. He also said:
“Anyone being drunk, or anywhere near drunk, on duty has, in my view, got to stop. … In my view the routine use of the appropriate machinery to at least establish the absence of alcohol in the system is necessary as I’m not convinced that the concept of heavy drinking on leave periods is likely to alter very much”.
Those words should give food for thought. The reality, as we know, is that someone with a level of alcohol inside them which impairs their ability to perform their duties is a danger not only to themselves but also to colleagues and others who are dependent on them performing those duties with maximum effectiveness and efficiency for their own safety, and for maximising others’ levels of effectiveness and efficiency. For that reason above all others, we support the regulations.