Armed Forces Bill

Lord Russell of Liverpool Excerpts

Report stage
Tuesday 23rd November 2021 Lords Chamber

Moved by

[Lord Russell of Liverpool]

28: After Clause 19, insert the following new Clause—
“The minimum term for service
In section 329 of the AFA 2006 (terms and conditions of enlistment and service), after subsection (2) insert—“(2A) Where time is prescribed under subsection (2)(c) by reference to number of years from the date of enlistment, the age of the person on that date may not be taken into account.””Member’s explanatory statement
This amendment ensures that soldiers aged under 18 are not required to serve for a longer period than adult personnel.

[Lord Russell of Liverpool (CB)]

My Lords, I shall speak to Amendment 28. I do so in place of the noble Baroness, Lady Massey, who would otherwise be here, but is indisposed. I thank her for having introduced this amendment and another one so ably in Committee.

In Committee, this was grouped with another one that came before it which talked about trying to achieve a total cessation of the recruitment of under-18s by the United Kingdom, a practice that we are singular among all the members of NATO in pursuing. In the event, because the two were grouped together, the former amendment took about 98% of the airtime of the debate and there was very little discussion of this one, which is in part why we have decided to bring it back here for debate today. I emphasise that this is for debate; I do not intend to divide the House.

I will try, together perhaps with some other noble Lords who have put their name to this amendment, to put a case for the Government to look very carefully at their current practice of asking junior entry soldiers to serve two years more than entrants at age 18. This is to see whether this is the right thing to do in the first place and, more profoundly, whether the entire approach to junior entry is fit for purpose.

In Committee, the Minister made it very clear that, up until their 18th birthday, junior entrants have a statutory right to ask for discharge. However, after 18, they are in for four years and, under the current system, no allowance is made for the first two years at the Army Foundation College in Harrogate. A judicial review in 2015 concluded that this is unequal treatment in law, but is not unlawful, since the Equality Act 2010 exempts the Armed Forces from its prohibition on age discrimination.

In 2015, the Army carried out a review and estimated that, if it equalised the minimum service period for all recruits, it would have to recruit and train approximately 40 additional personnel each year to compensate for the relatively small number of junior entrants who might choose to leave after four years. To put that into context in 2015 terms, 40 personnel would be 0.5% of the Army’s enlisted intake for that year, which totalled 8,020 individuals. While the Navy and Air Force both take on a small number of junior entrants, neither service chooses to discriminate in the same way as the Army.

The 2019 junior entry review, undertaken following a recommendation from the Defence Committee in another place, suggested an amendment to the terms of service to a Type S engagement, whereby 18 year-olds can either opt to leave or convert their engagement to a short career versatile engagement, which would recognise the first two years of service and count towards the four years’ minimum length return of service.

The review recommended that this approach be considered, saying that it

“could be deemed a positive change”

and was

“unlikely to be contentious”

to either a junior entry cohort or their “gatekeepers”—I assume that means the staff at Harrogate, although I am not sure how they would feel about that term. The review continued that

“any move to implement”

the new terms of service on leaving the Army as an under-18 year-old

“would make the process … more transparent, which would bring an increase in the confidence of recruits and their gatekeepers.”

Its only caveat was whether this would enable the Army to achieve its desired manning balance along with other assessments of length of service.

In light of the announcement this year that the Army will be further downsized by 10,000 troops, does the Minister agree that this would be an opportune moment to institute the proposed new terms of service and put the matter to rest? Will she tell the House what the Government’s current thinking is? Can she inform us on any actions or, if not, tell us how she might consider progressing this? Will she undertake to come back to the House and report on any progress and timings?

There are two further issues I want to explore to test the MoD and Army’s thinking on the current junior entry structure and content. First, in 2021, is it recruiting the right people for today’s and tomorrow’s Army? This Government and our current, rather busy, Home Secretary frequently refer to an immigration policy that should be focused on attracting and admitting “the brightest and the best”. At the same time, the Army is increasingly conscious that it needs to recruit more young people who are interested and competent in STEM studies and in furthering their education, particularly the sort of technical education that the Army of tomorrow will need to manage challenges such as cyber warfare and the use of artificial intelligence.

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I am probably not providing the answers that the noble Lord, Lord Russell, wanted to hear, but that is the Government’s position. I hope that, with that explanation, he will feel able to withdraw his amendment.

[Lord Russell of Liverpool (CB)]

My Lords, I thank the Minister for her response and all noble Lords who took part in this brief debate. I must confess that, as I listened to the Minister and I reflected on her response to the previous amendment, I was reminded of the saying that is often used about ourselves and the United States of America, which is that we are two countries divided by a common language. On many occasions I felt that the discourse coming from all sides of the House seemed to be of a different nature or dialect from the response we received from the Front Bench.

To be clear, Committee saw an end to the argument—certainly for this Bill—about the rights and wrongs of recruiting junior entrants at 16. That is not what we are talking about.

The point I was trying to make was to probe the Ministry of Defence on whether it has actually thought and reflected on whether what it is currently doing with its junior entry programme is fit for purpose. I could imagine that, if you are dyed deep blue right the way through and support the Conservative Party, you might regard the Army Foundation College as a particularly wonderful example of what is known as “levelling up”. It is taking a cohort of young people, primarily young men, from difficult neighbourhoods and complicated backgrounds, who are completely unenthused by conventional education and find attraction and allure in going into the military.

But, as we have seen from the evidence, the process the Army goes through to select these individuals appears to be seriously flawed on two counts. First, as we heard from the independent appraisal, the number of young people who are leaving within days of arriving in Harrogate does not speak very highly of the efficacy of the recruitment process. So at the very least I think the Army should look carefully at that.

The second point I come back to is more fundamental. The noble Baroness, Lady Smith, echoed my appeal to try and think of a junior entry programme that is fit for the 21st century rather than the 19th century. I have every sympathy with the cohort in question, which takes up 70% of the intake. But the size of our Army is reducing and the technical challenges we are faced with are increasing. Your Lordships may have read about this slightly alarming supersonic missile that has apparently gone around the world at five times the speed of sound and apparently has the Americans very rattled. That is the state of the world we are moving into and, with the best will in the world, even the most outstanding students among the cohort the Army is currently recruiting from are unlikely to be of great help in trying to deal with the sort of warfare that the remainder of the 21st century may expose us to.

I do think there are some fundamental questions that the briefing notes—which the Minister has followed assiduously—do not seem to have prepared her for. So what I would ask her to do is, at a minimum, reflect on some of the comments that have been made, particularly some of the more profound questions about looking at the current junior entry strategy, and try to see whether it is fit for purpose.

At the very least, I would have hoped there was an acknowledgement in the briefing of the junior entry review that was conducted at the request of the Defence Committee in the other place, which had inside it a suggestion of new terms of service that would solve what this amendment asks for. The fact that it was not even referred to, either in her briefing notes or in her response to me, is disappointing, and I would ask that she and her officials look carefully at the content of what has been discussed, isolate those questions that have been asked and undertake to write back to us with answers. I would be most grateful. In the meantime, I beg leave to withdraw the amendment.

Amendment 28 withdrawn.

Armed Forces Bill

Lord Russell of Liverpool Excerpts

Committee stage
Monday 8th November 2021 Grand Committee

[Baroness Lister of Burtersett (Lab)]

My Lords, the last time I spoke on this issue was in support of my late noble friend Lord Judd, who, as my noble friend Lady Massey said, was much admired and loved—and, I would add, is much missed. He brought to issues such as this his passion for social justice, which was unrivalled in your Lordships’ House. That said, my noble friend has made a powerful case today in introducing these amendments. Like her, I come to the issue from a children’s rights perspective and am grateful for the briefing from the Child Rights International Network.

I apologise that I could not attend the Second Reading debate but, reading it, it seemed that the Minister was rather flippant in her response to the noble Baroness, Lady Bennett of Manor Castle, when she raised this issue. The Minister dismissed the term she used, “child soldiers”, as

“a term that few of us in this Chamber recognise”.—[Official Report, 7/9/21; col. 775.]

Perhaps so but it acts as a reminder that we are talking about children, as defined by the UN Convention on the Rights of the Child, as has already been emphasised. The Minister may wish to point out that the convention does not prohibit enlistment of children under the age of 18. But the body which monitors compliance with the convention, the UN Committee on the Rights of the Child, has repeatedly called on the UK to raise the minimum age of recruitment to 18. The Joint Committee on Human Rights has in the past, including when I was a member, also questioned government policy on this matter from a human rights perspective.

The UN committee will be reviewing the UK’s progress on children’s rights again next year and has already flagged up Armed Forces recruitment in the list of issues that the review will examine. It has asked the Government to explain what steps they have taken to raise the enlistment age since the last review in 2016. The committee has also asked whether the minimum period of service for recruits aged under 18 is still longer than for adult recruits—a discrimination that Amendment 62 seeks to end. Surely we wish to be able to point to progress in this area since the last review.

As my noble friend underlined, it is important to remember the international context. She pointed to a clear positive trend: half a century ago, it was normal for state armed forces to recruit children; in most parts of the world, including Europe, it is now abnormal. This is a seismic shift at a global level that has already safeguarded countless adolescent children from the harm associated with joining the armed forces too early. Increasingly, the global consensus that children should be safeguarded from military work is denying political cover to less scrupulous countries than our own and armed groups which otherwise have no qualms about sending child soldiers into combat.

We have an opportunity here. A global ban on the use of children for military purposes used to be a pipe dream. Now, it is at least imaginable. At the moment, the UK follows the lowest legally permissible standard in the world by allowing enlistment from age 16, lagging behind others when we could be helping to lead the way—and it can be done. Noble Lords here will know much more about this than I do but, in contrast to the Army, the RAF and Navy do not recruit many under-18s. Historically, the Army has said that it needs younger recruits just to fill the ranks and when the issue was last debated, the then Minister—the noble Earl, Lord Howe—explained that the under-18s represented 15% of the Army’s inflow, which I found rather shocking. Given that the Army has downsized and, as I understand it, is continuing to do so, surely it does not need underage recruits any more. Can the Minister give us some up-to-date information on the trends in recruitment of those under 18, including what proportion of inflow they represent now?

It would seem that the transition to an all-adult Army could now be within easy reach. For the protection of children’s rights, here in the UK and globally, it is a step we should take.

[Lord Russell of Liverpool (CB)]

My Lords, it is a great pleasure to support the amendment of my friend and fellow member of the Parliamentary Assembly of the Council of Europe, the noble Baroness, Lady Massey. Like the noble Baroness, Lady Lister, I apologise for not speaking at Second Reading. At that point I had not had the irresistible invitation from the noble Baroness, Lady Massey, to support her on this. She and I have form when it comes to working on children’s rights. I put on the record that I am a governor of Coram, the oldest children’s charity in the United Kingdom, dating from 1739.

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[Lord Lancaster of Kimbolton (Con)]

That is a reasonable point, but none the less, the Church of England is actively targeting young people of a certain age to be recruited into an organisation. Okay, I say that slightly tongue in cheek, but there could be a discussion of what age is appropriate for young people to make an informed decision.

I begin by reminding your Lordships that there is no compulsory recruitment into the Armed Forces. All those under the age of 18 are volunteers, and we should take pride in the fact that our Armed Forces provide challenging and constructive education, training and employment opportunities for young people while in service, as well as after they leave.

The Armed Forces remain the UK’s largest apprenticeship provider, equipping young people with valuable and transferable skills for life. I declare an interest, because I applied to join the Army before the age of 18. I went through a regular commissions board and made an informed choice to join the Army when I was still a minor. Although I did not attend Sandhurst until shortly after my 18th birthday—a short course for the type of commission I was undertaking—I recall my time in the regular Army when I was a teenager with great pride and a sense of satisfaction. That may well be in part due to my posting to Hong Kong, where I received both a formal military education and a rather less formal liberal education in life—but that is another matter.

The minimum age for entry into the UK Armed Forces reflects the normal school leaving age of 16, but recognises, through the training offered, that participation in education or structured training remains mandatory until 18. In the services, all recruits who enlist as minors and do not hold full level 3 qualifications are enrolled on an apprenticeship scheme, unless their trade training attracts higher-level qualifications. All undertake structured professional education as part of their initial military training, and therefore automatically fulfil their duty to participate under the various education Acts. Many individuals who join under the age of 18 are not academic high achievers, although some are, and the duty of care and training that the Armed Forces provide enhance their self-esteem and prospects for the whole of their working life, within or without the services.

Let me be clear: our military is full of service men and women who freely admit that, had it not been for the structure, education and discipline that service life offered them as 16 year-olds, it is highly likely that their lives would have led them down an entirely different and less positive path. Joining the military at 18 would have simply been too late for them to make that positive change of direction in their lives.

In my experience, the military fully recognises the special duty of care that it owes to under-18s, and commanding officers continue to have that made clear to them. The recruiting policy is absolutely clear. No one under the age of 18 can join the Armed Forces without formal parental consent, which is checked twice during the application process. In addition, parents and guardians are positively encouraged to engage with recruiting staff during the process. Once accepted into service, under-18s have the right to automatic discharge at any time until their 18th birthday. All new recruits who are under the age of 18 and have completed 28 days’ service have a right of discharge within their first three to six months of service if they decide that a career in the Armed Forces is not for them. It is simply not in the interest of either the individual or the service to force them to stay where they are not happy to be.

MoD policy is not to deploy personnel under the age of 18 on operations. Service personnel under the age of 18 are not deployed on any operation outside the UK, except where the operation does not involve them becoming engaged in or exposed to hostilities. There is evidence to suggest that those joining at a younger age remain in service for longer and that under-18s in the Army achieve higher performance based on their earlier promotion. Evidence clearly shows that junior entrants are likely to serve longer and to achieve higher rank than some senior entrants, so the additional costs incurred in their training that noble Lords have mentioned reap considerable benefits for the service, the individual and society as a whole.

The services are among the largest training providers in the UK, with excellent completion and achievement rates. Armed Forces personnel are offered genuine progression routes which allow them to develop, gain qualifications and play a fuller part in society—whether in the Armed Forces or the civilian world. In the naval service and the Royal Air Force, initial military training is conducted on single-service sites and, because of the smaller scale, no distinction needs to be made in the training provided to those under 18. In the Army, phase 1 training for under-18s, the basic military training course, is completed at the Army Foundation College, where the facilities have been specifically designed for this age group. The training courses last either 23 or 49 weeks, both of which are longer than the basic over-18 course and dependent on the length of the subsequent specialist training.

The MoD’s duty of care policy for under-18 entrants is laid down in a defence instruction and covers the duty of care obligations of commanding officers. This is constantly updated, and I am the first to admit that I am probably now out of date, since I have left being a Minister for two years, but I am sure that my noble friend in her response will update the Committee on some of its current components to offer some reassurance as to how the military deals with that duty of care.

Equally, as I have mentioned, all recruits enlisted as minors who do not hold full level 3 qualifications are enrolled on an apprenticeship scheme, unless their trade training attracts higher-level qualifications. For example, as a Royal Engineer I trained to be a bricklayer and an electrician. The time taken to complete their apprenticeship varies according to the programme being followed, but completion rates are high. Additionally, while in service all Armed Forces personnel—subject to meeting certain qualification criteria—can claim financial support for education under the standard learning credit scheme and enhanced learning credit scheme.

To conclude, I believe that under-18s who chose to join the Armed Forces are an important and valuable cohort among those starting their military career. The MoD invests strongly in them and they repay that investment with longer service and higher achievement. The duty of care for that cohort is paramount and establishments are regularly inspected by Ofsted and achieve consistently good or outstanding gradings. The training and education are clearly first class and MoD policies on under-18s in service are robust and comply with national and international law.

Crucially to me—and I have seen this time and time again—joining the Armed Forces provides prestigious and respected career opportunities for young men and women who may not have achieved the same in civilian life. But there is no need to take my word for it. I would encourage any noble Lord seeking to support this amendment to visit the Army Foundation College in Harrogate and speak to the young service men and women themselves—because it is, after all, their future we are debating.

[Lord Russell of Liverpool (CB)]

Before the noble Lord sits down—

[Lord Lancaster of Kimbolton (Con)]

I have sat down.

[Lord Russell of Liverpool (CB)]

Could I just ask him—

[Lord Lancaster of Kimbolton (Con)]

I have sat down.

[Lord Russell of Liverpool (CB)]

Well, perhaps he might respond as this is Committee stage. I pay tribute to the Army training, because the noble Lord is certainly able to follow a brief and read it in a fairly military fashion and in a straight line. But if this is such a good idea, if it is so effective and productive for the children who enter the Army at the age of 16, why are we one of the very few countries in the world, and the only military force within NATO, to do this? What do we know that they do not? Why have we got it right and why have they got it wrong?

[Lord Lancaster of Kimbolton (Con)]

I think the evidence speaks for itself. I have attempted to outline some of that evidence, bearing in mind that for those first two years we offer first-rate training. We are the largest apprenticeship provider in the United Kingdom. We are giving life opportunities to young people who, without that discipline or training, may well have followed a different path. I am convinced through my experience of 33 years in the military, of visiting this college and of meeting young people who have been through their careers, will look me in the face and say, “Had it not been for joining the military, I would have ended up doing something awful on the streets of Portsmouth or London, or wherever. It is only through the opportunity that the military gave me at a young age that I became the man or woman that I have.” That, away from the MoD’s passion for young people, has to be the best reason why this should continue.

Queen’s Speech

Lord Russell of Liverpool Excerpts

Wednesday 19th May 2021 Lords Chamber

[Lord Boateng (Lab) [V]]

Indeed. I end on this note, with this challenge to the Minister. We are rightly thinking about the Middle East at this time. There was a great teacher by the name of Hillel in the Middle East, who lived at the time of our Lord. He said:

“If I am not for me, who will be for me?”


Yes, it is important to recognise our national self-interest, but he added:

“If I am only for me, what am I?”


We share a common humanity. He also asked: “If not now, when?” We need focus, we need resources and we need to act now.

[The Deputy Speaker (Lord Russell of Liverpool) (CB)]

I call next the very patient noble Baroness, Lady Neville-Rolfe.

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[Lord Trees (CB)]

My Lords, I want to address the cuts in official development assistance and to concentrate on their effects on health research and health interventions for and in lower and middle-income countries. I must declare my interest as vice-chair of the APPG on Malaria and Neglected Tropical Diseases. These cuts are massive, immediate and catastrophic.

Regarding research, the ODA support to UKRI and the global challenges research fund has been immediately cut by £120 million, which is nearly half the previously committed amount. Among many affected projects is the world-class research led by the Royal Veterinary College in London through the One Health Poultry Hub: a £20 million programme involving 27 institutions in 10 countries. This focuses on infectious zoonotic disease and antimicrobial resistance in poultry in Asia. It faces a 67% cut in its budget. However, we know that the next pandemic in humans is very likely to arise from animals, very possibly from poultry and very possibly in Asia. At the world-renowned Liverpool School of Tropical Medicine, major research cuts are required in multiple programmes on human health. I highlight the cut of 68% to the ARISE programme, which is looking at human health in informal settlements in Asian and African countries and has helped these communities in their responses to the Covid pandemic.

On health interventions, the flagship UK-funded Ascend programme delivers preventive drugs for neglected tropical diseases to African countries. Just in January, the Prime Minister reiterated the UK’s support

“to protect everyone from pain, disfigurement and poverty caused by NTDs”.

Yet, the Ascend programme is now facing cuts of around £130 million to a total budget of £220 million. The programme has already been seriously interrupted by Covid-19 but has repurposed much of its activities to aid the Covid-19 efforts in 11 endemic countries. The current cut will not only halt those efforts but result in the cessation of drug treatments for target NTDs. Children who could be protected will be put at serious risk of going blind or developing completely preventable disfiguring and debilitating diseases. These are diseases for which no vaccines exist. The drugs that prevent them are donated for free by pharmaceutical companies such as our own GSK, but they will go unused.

In poor communities, good health is crucial to enable education, work and economic and social progress. To improve the well-being of such communities is not only a moral and humanitarian responsibility; it is in our own self-interest to create stable societies of growing wealth from which people will not migrate.

While these cuts are devastating for the current research and preventive programmes funded by ODA, they involve relatively small amounts of money in the context of the current pandemic: no more than 1% in total of the current budget deficit. I maintain that these cuts are totally disproportionate when we consider that £37 billion has been spent on the Covid test and trace system in the UK. One thirty-seventh of that, which is £1 billion, would avoid most if not all of the proposed cuts to overseas health research and interventions.

In conclusion, these cuts are contrary to our aspirations as a global scientific power. They damage our international reputation—we are the only G7 country to reduce its aid budget in a time of global crisis—and they seriously diminish our soft power reach. What soft power is greater than the gift of health? They run counter to our commitments to the sustainable development goals and they will diminish our capability to address major global challenges like food security, antimicrobial resistance and pandemic infectious disease risks. I submit that the damage far outweighs the savings made and I ask the Minister if Her Majesty’s Government will reconsider these cuts.

[The Deputy Speaker (Lord Russell of Liverpool) (CB)]

The noble Earl, Lord Dundee, and the noble Baroness, Lady Goudie, have withdrawn from the speakers’ list, so I call the next speaker, the noble Baroness, Lady Fall.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Russell of Liverpool Excerpts

Committee stage
Thursday 11th March 2021 Lords Chamber

The review does not change the commitment of the United Kingdom to the ECHR and human rights. We will continue to champion human rights at home and abroad. The review is expected to conclude in the summer, and we will consider its recommendations then. Given that current process, I respectfully request that my noble friend withdraw his amendment; that the noble and learned Lord, Lord Falconer of Thoroton, withdraw his; and that Clause 12 stand part of the Bill.

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

I have received two requests to speak after the Minister, one from the noble and gallant Lord, Lord Craig of Radley, and the other from the noble Baroness, Lady Chakrabarti. I will call them in that order.

[Lord Craig of Radley (CB) [V]]

My Lords, the Minister has reminded us that, when Defence Secretary, Michael Fallon said:

“before embarking on significant future military operations, this government intends derogating from the European Convention on Human Rights, where this is appropriate in the precise circumstances of the operation in question.”

In her letter of 26 February, the Minister indicated that Clause 12 was included to reflect this undertaking. Significantly, Clause 12 does not give the same weight to a decision to derogate as was indicated by Mr Fallon. If that is what is intended, should it not say so in words that reflect the commitment explained by Mr Fallon? What is the Government’s intention? Is it to seek to have in place an effective form of combat immunity for active operations overseas? That would be welcome but, at present, as many noble Lords have said, Clause 12 seems worthless and should not form part of the Bill.

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[Lord Falconer of Thoroton (Lab) [V]]

[Inaudible.] The noble Baroness, Lady Chakrabarti, asked an incredibly clear question and I think the House is entitled to an answer. Would an exercise of the power to derogate in accordance with this new section of the Human Rights Act be judicially reviewable? Although the Minister gave a long answer, she did not answer the question directly. I can understand why she feels uneasy about answering it without a clear steer from officials, but I think it would be appropriate if she wrote to the noble Baroness, Lady Chakrabarti, and the rest of us with the answer to that very important question.

I thank the noble Lord, Lord Thomas of Gresford, the noble Baroness, Lady Chakrabarti, the noble and learned Lord, Lord Hope, and the noble Baronesses, Lady Whitaker and Lady Smith of Newnham, for their support for Amendment 26 or for the clause not standing part. I also note that the Minister said on behalf of the Government that they would consider the allure of the argument of the noble and learned Lord, Lord Hope, that this clause should not be part of the Bill at all. I am grateful for that and I think the House will be interested to hear her conclusions.

The speech of the noble Lord, Lord Faulks, was interesting but broadly irrelevant to Amendment 26 and whether the clause should stand part. I understood him to say that actually, the problems that have arisen in relation to overseas operations will never be addressed in any real form by any sort of possible derogation under the Human Rights Act, and that he could not therefore see what derogation has to do with the problems the overseas operations Bill is addressing. He then went on, in an interesting speech which I profoundly disagree with, to say that the problem is not whether or not derogation is possible but whether or not the Human Rights Act should extend to overseas operations generally.

The noble and gallant Lord, Lord Craig of Radley, absolutely put his finger on it when he asked the Minister, if derogations are not intended—if derogations cannot give combat immunity—what is the point of them? As the noble and gallant Lord pointed out, it is plain from what the Government are accepting has been said in this debate that combat immunity is not on offer from derogation. I strongly urge the Minister to drop this clause, because it is a pretend clause. It pretends that derogations can help with the problem this Bill seeks to address, when they plainly cannot.

I beg leave to withdraw Amendment 26.

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

Before we do that, does the Minister wish to respond?

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Amendments 28 and 29 not moved.

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

We now come to the group beginning with Amendment 30. Anyone wishing to press this amendment to a Division must make that clear in the debate.

Amendment 30

Moved by

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Amendment 31 withdrawn.

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

We now come to the group consisting of Amendment 32. Anyone wishing to press this amendment to a Division must make that clear in debate.

Amendment 32

Moved by

Overseas Operations (Service Personnel and Veterans) Bill

Lord Russell of Liverpool Excerpts

Committee stage & Lords Hansard
Tuesday 9th March 2021 Lords Chamber

I hope that that has assisted your Lordships in understanding the Government’s attitude to Clauses 1 to 7 and why we selected a period of five years. Therefore, I urge the noble Baroness to withdraw her amendment.

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

I have received two requests to speak after the Minister, from the noble Lords, Lord Naseby and Lord West of Spithead. I will call them in that order, so I now call the noble Lord, Lord Naseby.

[Lord Naseby (Con) [V]]

My Lords, I spoke at Second Reading, where I said that our Foreign Office should release

“dispatches from our observers who watch war anywhere around the world.”—[Official Report, 20/1/21; col. 1231.]

I realise that Part 1 is absolutely the key issue of the Bill. I ask my noble friend on the Front Bench whether she will confirm that, when the Bill becomes an Act, in whatever form, it will be drawn to the attention of the United Nations, particularly the UNHRC in Geneva and the International Criminal Court, as well as all other relevant official bodies involved with alleged war crimes, wherever they may be?

I ask this because of current evidence that the UNHRC has not been fully briefed by Her Majesty’s Government concerning British military attaché evidence taken in 2009 in relation to the war in Sri Lanka. Therefore, there is a lack of evidence in the report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka, dated 12 January 2021. I thank the Minister for listening to this important but rather unusual dimension.

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[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

We now come to the group beginning with Amendment 3. Anyone wishing to press this, or anything else in this group, to a Division must make that clear in debate.

Clause 2: Presumption against prosecution

Amendment 3

Moved by

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[Viscount Younger of Leckie (Con)]

I am sorry to interrupt the noble and gallant Lord, but we cannot hear him very well. We shall come back to him later in the debate.

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

Lord Boyce, we will come back to you later. I now call the noble and learned Lord, Lord Hope of Craighead.

[Lord Hope of Craighead (CB) [V]]

My Lords, I spent four years at an earlier stage in my career as a prosecutor in Scotland. I was one of the Lord Advocate’s relatively small team of Crown counsel, known as his advocate deputes. For much of that time, the Lord Advocate was the noble and learned Lord, Lord Mackay of Clashfern. It is a real pleasure to see him taking part in our proceedings this afternoon. It was part of my job to take decisions under his authority as to whether or not a prosecution should be brought, and to conduct the prosecution if it was decided that it should proceed. I therefore have some insight into how these decisions are taken.

Of course, there are differences between my job then and what we are contemplating now. I was working in Scotland, under its own system of criminal law, about 40 years ago. While nothing much was actually written down then, there were some well-understood principles to guide us. Much of this was based on the fact that we were acting in the public interest. We had to balance the interests of justice against the accused’s right to a fair trial. Within those broad concepts, there was room for a variety of other factors that we would take into account, guided by common sense and what we had learned by experience.

That having been said, I acknowledge that in today’s world there is the need for a more formalised system of rules. That helps to achieve consistency in decision-making, and it helps to reassure the public that these important decisions are soundly based. In the context of this Bill, I acknowledge that “the public” must include service personnel serving or who have served in operations overseas. After all, reassurance to them is what this Bill is all about.

That brings me to Amendment 3, and afterwards to Amendments 5, 6 and 28. The wording of Amendment 3 does not come as any surprise to me. It relates to the ability to conduct a fair trial, and makes a proposition that hardly needs to be said. As the noble Lord, Lord Lancaster of Kimbolton, said, this principle applies as a matter of course. I cannot imagine that the proposition would have escaped my attention had I been responsible for taking these decisions, but of course the real point of Amendment 3 is to challenge the presumption and replace it with something else which has equivalent force, removing the hard edge of presumption.

On the whole, I am uneasy about a presumption that applies after a particular time limit. Cases vary and the facts differ from case to case; what might be absolutely right in one case could be very unfortunate in another. There is a real difference, however, between the presumption in Clause 3, which uses the word “exceptional”, and the word “materially”, which is the key word in the amendment. It is a much softer alternative. I am uneasy as to whether it really is an adequate replacement for the presumption if the aim is to get rid of the presumption and replace it with something of equal force.

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I have also noted the suggestion by some that Clause 3 will grant de facto impunity to individuals who have been accused of committing criminal offences. I wish to repeat that the application of Clause 3, alongside all the other considerations, still leaves the prosecutor with discretion to determine that a case should be prosecuted, even when there is no compelling new evidence. My concern is that these amendments would effectively remove one of the matters to be given particular weight and undermine that reassurance to our service personnel that the operational context and the adverse effect that it can have on them will be taken into account by the prosecutor. That would be an unfortunate message for this Committee to send and, in those circumstances, I urge the noble Baroness, Lady Massey, to withdraw her amendment.

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

I have received no requests to speak after the Minister, so I call the mover, the noble Baroness, Lady Massey of Darwen.

[Baroness Massey of Darwen (Lab)]

My Lords, again I thank the Minister for her concern and detailed response. Many wise comments and questions have been made. I appreciate what the noble and learned Lord, Lord Mackay of Clashfern, is saying about lack of sound judgment developing under stress in adverse conditions in conflict situations. The point that I wanted to make was that I agreed that that would happen, but part of what I was saying was that people needed support to come to terms with that, which could take a very long time.

My noble friends Lord Dubs and Lord Tunnicliffe gave a response. The question that my noble friend Lady Chakrabarti asked on why Clause 3 has been drafted in this way is important. In response to the Minister’s final comments, I should like to read what she said. It is difficult to be persuaded that prosecutors would find it difficult to understand the condition and environment in which service personnel are working. It is fairly obvious to most people that those circumstances are difficult. However, I should like to read what she said, and read the full debate, and discuss with colleagues what action we want to take next. In the meantime, I beg leave to withdraw the amendment.

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Amendment 9 not moved.

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

We now come to the group beginning with Amendment 10. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

Amendment 10

Moved by

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[The Deputy Chairman of Committee (Lord Russell of Liverpool) (CB)]

The noble and learned Lord, Lord Morris of Aberavon, has withdrawn from this group, so I call the noble Baroness, Lady Jones of Moulsecoomb.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, that was quite interesting, actually, because of course these amendments are trying to create some sort of accountability for the Attorney-General. I thought the noble Lord, Lord Faulks, was going to say something about the Attorney-General being rather more political than in the past, because of course the office of Attorney-General has been sadly undermined in recent years, particularly last year with the Attorney-General’s quick defence of Dominic Cummings’ unlawful behaviour. That was, I fear, just one example, and the fact that she then so quickly rowed back from her position to a position of it being only her political decision and not a legal opinion shows how easy it is for an Attorney-General to step over that increasingly faint line. In that, I think that she mistakenly excused illegality in the name of political expediency. We, of course, cannot become complicit in that, so I was extremely pleased to sign the shadow Attorney-General’s Amendments 10, 11 and 12.

I am concerned that this triple lock in the Bill can actually lock justice out. Even if the power of justice is strong enough to overcome the first two locks, we have to trust the Attorney-General to make the right decision on the third lock, which of course would be very difficult. The Attorney-General therefore has to publish their reasons when making decisions, because these decisions should be made according to normal standards of administrative propriety and should rightly be subject to judicial review. Where the reasons for the decisions are irrational, unlawful or irrelevant, they should be able to be overturned. Where the decision is purely politically motivated and has no foundation in facts, the law or the interests of justice, equally it should be overturned. These amendments are essential to ensure that this is the case.

Such important decisions as those envisaged in the Bill must never be made on a whim or be purely political. Justice has to be done and be seen to be done. I would just like to add that various noble Lords have suggested that some things are impossible to understand if you have not experienced warfare or action of that kind. Of course, that is absolutely true, but we are not talking about a lack of sympathy for service personnel; we are talking about criminal acts. That is the basis of what this law is about; it is not to do with whether we have sympathy or not, it is about criminal acts, and it is important to remember that.

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Clause 5 agreed.

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

We now come to the group beginning with Amendment 14. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

Clause 6: “Relevant offence”

Amendment 14

Moved by

Armed Forces: Covid-19 Deployment

Lord Russell of Liverpool Excerpts

Thursday 12th November 2020 Lords Chamber

[Baroness Goldie (Con) [V]]

Approximately 2,000 personnel are currently committed to the mass testing project in Liverpool. As to precisely where they are based, I do not have specific information, but I undertake to write to the noble Lord with that information.

[The Deputy Speaker (Lord Russell of Liverpool) (CB)]

My Lords, that brings the questions on that Statement to an end. We will move straight on to the next business.