Armed Forces Commissioner Bill

Lord Russell of Liverpool Excerpts

Committee stage
Monday 24th March 2025 Grand Committee

I do not know whether the Minister is inclined to look with favour on the amendment tabled by the noble Baroness, Lady Goldie. However, I ask him—in his response and, subsequently, as the Bill goes through—to reflect on that point and to share with us the thoughts within the Ministry of Defence on how it will take this issue forward. As he and I have discussed and agreed, what really matters is changing behaviour on the ground. We have been singularly poor at doing that over many years, but that is what we need to change.

[Lord Russell of Liverpool (CB)]

I will speak briefly to support the amendment of the noble Baroness, Lady Goldie.

The German armed forces commissioner and her activities—on whose role, to a large degree, this new UK version is based—are covered by a country-wide whistleblowing Act, which was passed, I think, about three years ago. Looking at the example of Jaysley Beck, and trying to disentangle the long and unfortunate history of the way she was treated almost from the time she joined the Army Foundation College, would identify a whole series of points at which the whistle could have been blown in some way, shape or form but, for whatever reason, was not. This is not a case of a single occasion that was missed; there were multiple occasions involving a wide range of people, many of whom were old enough and senior enough to know better, and who, for whatever reason, did not take action.

There are elements of human behaviour and psychology at play, including the way in which an organisation—which has huge pride in its history—reacts when it sees that the way it likes the outside world to believe it behaves, and how it holds its values, is not in fact the case. It is not always straightforward to work out exactly how to deal with that and how to flag up what is going on without being seen to be disloyal and without, in some way, being seen to be disrupting the organisation. Even if you feel that some of the values being demonstrated by the actual behaviour are wrong, they are almost trumped by the other values that one feels are more important, which are probably those that are discussed. The values that have gone wrong are the ones that are not being discussed or flagged up. That seems to be a root cause of why people are not coming forward and not talking.

This is an important area. If the new Armed Forces commissioner is not the office that will look after this, who on earth will be? Who will defend the young girls like Jaysley Beck of the future—and, probably, of today? We need to get this right. I think that we would all welcome detailed discussions between now and Report, probably involving outside organisations that have been talking to some of the people who have suffered and who have not found ways of telling the chain of command or the outside world, in a way that was heard, what was going on. We really need to use the occasion of this Bill to try to get this right.

[Lord Coaker (Lab)]

My Lords, what an important amendment the noble Baroness, Lady Goldie, has brought forward. It has enabled the noble Baroness, the noble and gallant Lord, Lord Stirrup, and the noble Lord, Lord Russell, to make the comments they have.

Let us start with the whole point of the commissioner. Obviously, we intend that the commissioner will have the power to investigate all the various issues and matters that noble Lords have brought forward in this Committee.

The noble Baroness, Lady Goldie, said, “I am not going to give up”. I say to her that she should not give up; nobody should give up. She was forthright on this matter when she was a Minister, as was the noble Earl, Lord Minto—indeed, as is every noble Lord in this Committee. When the noble and gallant Lord, Lord Stirrup, had the very senior responsibilities he had in the military, he, like all of us, was trying to tackle this behaviour whereby some are tarnishing the reputation of the whole of our Armed Forces, which utterly unacceptable.

I say to the noble Baroness that, as she will see as I make my remarks, some progress has been made as a result of the policies the previous Government pursued. As noble Lords know, I am a proud Labour politician, but I also admit where progress has previously been made. Is it good enough? Is it satisfactory? Of course not, as we have seen from Gunner Beck’s awful circumstances.

The demands made by the noble Baroness, the noble Lord, and the noble and gallant Lord—indeed, by every single person in this Committee and beyond—have started to change the culture, which is ultimately what this is about. Will these things stop? I wish I could wave a magic wand and stop every case of bullying, sexism and misogyny, but what I do know is that, if the role of the commissioner is passed as it is now, it will, along with the other reforms that have taken place, help us deliver what we want to do.

I absolutely take the point made by the noble and gallant Lord, Lord Stirrup, about training new recruits and how we protect and develop them. I know there has been controversy about Harrogate, but it has taken really powerful action to try to deal with that. There have been other instances that we can all refer to. The noble Lord, Lord Russell, is right: this is about trying to generate confidence in people so that they feel they can come forward.

There is also the countercultural point that people sometimes do not come forward not only because they are frightened but because that would somehow break the code—the unwritten rules. It is a nonsense. I used to teach, and you get this in schools, where people will not grass up others, even though they think what they did was wrong, because it somehow breaks a social norm. It is ridiculous and unacceptable, but each and every one of us knows that it is there. The real challenge for institutions, whether schools, offices or the Armed Forces, is how to generate that desire and will to come forward in what are sometimes difficult circumstances, because there is no excuse for that sort of behaviour.

Let me turn to the amendment on whistleblowing. I assure noble Lords that the Ministry of Defence already has a comprehensive whistleblowing system, for military and civilians alike, and it includes robust policy, procedural investigation teams and a confidential hotline, so the amendment is not required. What is required is asking, “How do you get people to use it? How do you get people to come forward? How do you get people to have that confidence?” The noble Baroness, the noble Lord and others who went before them introduced lots of different hotlines, confidential arrangements and changes, but the things that we do not want to happen are still happening. It is about driving things through to bring about that change.

As I pointed out to the noble Baroness, as a consequence of what has happened—noble Lords will know this if they have read the Defence Select Committee’s evidence from last week, and the First Sea Lord, Admiral Sir Ben Key, spoke about it in public, so it is out there—21 people have been discharged from Royal Navy service after a whistleblower flagged misconduct and inappropriate behaviour on board submarines. I repeat: the First Sea Lord said that, as a result of whistleblower policies currently in place, 21 people were dismissed from the Submarine Service.

Is that a solution? Is that the end of the problem? Does that mean that nothing terrible is happening or will happen? Of course not, but it shows that we must drive people to have the confidence to use the various procedures and systems that are in place. Otherwise, you can change anything, but, if people do not have the confidence that the noble Lord, Lord Russell, spoke about, they will not use it and will not come forward. So, as I say, this shows that demonstrable action is being, and will be, taken against those who have transgressed when people are willing to come forward.

The term “whistleblowing” can cover a range of issues much wider than general service welfare matters. The Government’s intention is to focus the commissioner’s remit on service welfare matters. However, I can further reassure your Lordships that nothing in the Bill precludes anyone from raising a general service welfare issue with the commissioner anonymously; nor does it prevent the commissioner acting on that information.

On maintaining anonymity, for all general service welfare matters raised with the commissioner, there is no obligation imposed by the Bill to disclose the identity of any individuals. Indeed, all defence personnel are protected in relation to whistleblowing under the Ministry of Defence’s “raising a concern” policy. I hope that what I have said about anonymity, whistleblowing and some of the things that are starting to change means that the noble Baroness will feel able to withdraw the amendment, but, again, I would be happy to discuss any of this with her—indeed, with any noble Lord—because it is so important.

It seems to me that the real challenge for us is around how we can give people, whether they are recruits or people who have been serving for a considerable period of time, the confidence and willingness to come forward and use the measures that are there. Knowing that they can do that both anonymously and in a way in which they will be treated with respect, seems to me the crucial part because, if that does not change, we can change the system but it will not actually deliver the result that we would all want. We are united in our desire to do something about that.

I look forward to the noble Baroness—along with the noble Lord, Lord Russell, and the noble and gallant Lord, Lord Stirrup—continuing to demand better of the system because that is what we all want to achieve and what we all want to happen. What is still happening is unacceptable; we want, and are determined, to do something about that. We think that the commissioner will help in this regard.

Armed Forces Commissioner Bill

Lord Russell of Liverpool Excerpts

Committee stage
Wednesday 19th March 2025 Grand Committee

[Baroness Smith of Newnham (LD)]

I am grateful to the noble Lord for the clarification. That is what I had assumed on reading the Bill, but I wanted to make sure that that was absolutely right.

The Minister has pre-empted Amendment 21 in some ways. It is simply a request for some clarification on the timeframe. We say in the amendment that the Secretary of State should publish an agreed timetable within one month. I suspect the Minister might find a reason why that should not be the case, but can we have a little more clarification on the timeframe? Will it depend on the individual appointed, or are His Majesty’s Government committed to the commissioner being in post on, say, 1 January 2026?

[Lord Russell of Liverpool (CB)]

My Lords, I will briefly speak to the two amendments tabled by the noble Lord, Lord Beamish, to which I have added my name. We spent quite a lot of time during Second Reading and—I just checked—the first part of the Minister’s response from the Front Bench on the question of what difference this will make. I think all noble Lords who took part at Second Reading agreed that that is the essence. To that extent, Amendment 3 is quite important, because it goes to the heart of the question of what difference it will make.

The reason why the German system works the way it does is that the German armed forces commissioner is very clearly the servant of the Bundestag; he or she sits in the Bundestag alongside the clerks and, indeed, if the Bundestag wishes it to happen, it can request that the armed forces commissioner can participate actively in debates around the armed forces in the Chamber. So it is a very different model, and it really does make a difference, because it is markedly different from what we are suggesting.

This is the third attempt by us to try to get a form of ombudsman or Armed Forces commissioner to be more effective. We had the first one in 2008, the second iteration in 2016, and this is the third bite of the cherry to try to get it right. Clearly, if this is the third time we are doing it, it ain’t that simple. For all sorts of excellent reasons, the Armed Forces are a very particular culture and ecosystem, which they need to be to do what they do, but the flip side of having a really effective and disciplined military is that, for all sorts of reasons that it may not completely understand itself, it may be quite resistant to attempts that it sees as coming from outside—from people who do not really understand the culture and history and the things that are so important. The things that are not said are often more important than the things that are said.

The problem is that, at the moment, some of us feel that, while this is very well intended, it is very cautious indeed. For the Secretary of State and the Ministry of Defence to retain as much ownership and control of this as will inevitably be the case is unlikely to make the sort of step change that I think a lot of us were hoping and aspiring to believe this new role could actually make. I think that this needs to be looked at—it is a probing amendment—and I ask the Minister and his colleagues to look very carefully.

As part of my research for this proposal, I asked an individual who is actively involved in teaching in Shrivenham to take a poll after talking to a few people about this Bill. The first thing that this person found was that almost everybody spoken to in Shrivenham—this was last week—was not actually aware of this Bill. I do not know how well publicised this Bill is within the Armed Forces, but you would expect and hope that the flagship or leadership organisations of the Armed Forces would be aware of it and indeed might even perhaps been talking about it a bit. However, apparently this was not the case—but this was not a professional Sir John Curtice-type opinion poll but just somebody going around and talking to other people at Shrivenham.

The other experience that this individual had, after a brief explanation of what this role was going to be, was an almost immediate response from everybody; people felt that what they described as the “rigidity”, with a small “R”, of the armed services culture would find it pretty easy to resist the type of role that is being envisaged.

The bottom line is whether this is going to make a difference. It is important to be able to step back from this Bill and perhaps to take some more soundings from within the Armed Forces just to try to understand how likely they feel this will make a real difference. One senses that the onus of this Bill is coming primarily from the Ministry of Defence itself, and there is slightly less pull, if you like, from those parts within the Armed Forces and the extended family members that we were talking about. I am not sure how clearly their voices and experiences are being heard, because what we have at the moment clearly is not working.

I shall move quickly to Amendment 5 and term of office. The German term of office is five years. It can be renewed; it usually has not been renewed. Almost every time a new commissioner is appointed in Germany, it is an ex-Member of Parliament—usually an ex-member of the defence committee that is the equivalent of our Defence Select Committee. So they come with some live experience and with a network within Parliament that they are easily able to access; they can be quite influential behind the scenes. That system works well but, again, I come back to what we asked earlier: will this measure make a difference?

The aspiration is that this new role will make a discernible difference. In order for it to do that, clearly, it needs to do a lot of things differently to the way in which things have been done to date; and to find an effective way of doing things differently that works better. One will not get it right first time every time. It will be an iterative process: there will be successes, failures, brick walls and elephant traps. All sorts of things will be happening. Building up the types of resource and knowledge that will be required to gain momentum to carry this new role forward into the term of whoever follows the first commissioner will require giving the first commissioner the leeway and resources to make a difference.

I just feel that things are a bit timid at the moment. If we focus on the complexity of the task that we are asking this new function to do—in particular, if we try to think, “What should this look like 10 years from now? What do we hope would be happening? How would this be working?”—and know both where we want to get to and where we are now, we can then gauge the complexity of the task of getting from A to B. That might result in looking at some of these aspects in a slightly different, perhaps more beneficial, way.

[Viscount Stansgate (Lab)]

My Lords, I rise to speak to Amendment 3, not because I agree with it but because I agree very strongly with it. When my noble friend the Minister introduced the Bill, I remember him saying—quite rightly—that one of the important aspects of this Bill is that it puts this commissioner on a statutory footing. He was referring to the fact that he wanted this new post to have the weight of statute behind her or him. I simply support Amendment 3—if I refer to it again, I shall say “very, very strongly”—because it would give this post the authority of Parliament, in addition to being in statute, which would be a very good thing.

I am interested in everything said by people who know far more than I do about the German system but, clearly, that is not particularly appropriate to a British political setting. Amendment 3, however, is absolutely perfectly suited to our political system. I know that, sadly, Governments do not tend to like amendments such as Amendment 3. If I were on the other side of the Room, I dare say my noble friend might have been arguing for Amendment 3. I understand that, in his current ministerial position, he may be guided by the officials behind him and say, “Well, it is too complicated”, but it is not complicated at all. It is a question of whether Parliament should be involved, which it should be. This is a major new post that we are creating. The process of confirming the appointment of whoever is put forward is something that Parliament should do. Incidentally, it is not just because Amendment 3 applies to this particular Bill; I would support Amendment 3 in every piece of legislation where this type of question arises.

That is all I have to say on this matter. I do hope that, when he replies, my noble friend the Minister will at least acknowledge the, I would say, widespread feeling that Parliament must be involved in the appointment of this person; and convey it internally to his colleagues in the Government who would be resistant to an amendment of this kind. When it comes to the balance of power between the Executive and Parliament, I try always to be on the side of Parliament.

--- Later in debate ---

[Lord Coaker (Lab)]

Without saying whether that is a good or a bad idea, what I have said is that—although this is not actually in the Bill, as my noble friend said—clearly, our view is that going through the Defence Committee is the appropriate parliamentary involvement. We have said that we can consider the points that have been made in Committee, and I have said that we can meet to discuss them. Alongside that, we can discuss the length of term.

[Lord Russell of Liverpool (CB)]

The Minister will recall that, in the last few years, there has been a degree of disquiet, particularly on his Benches, about the view that certain appointments that should have gone through a fairly balanced process have veered slightly off course due to political interference. It just so happens that, about three hours ago, I was talking with a distinguished Cross-Bench colleague who is currently involved in two very senior independent appointments, helping the Government. This colleague had a discernible frustration that, in both of these cases—which are completely current and took place last week—a ministerial colleague of the Minister, not in the same department, overruled the recommendations of the advisory panel on who should be appointed or who the best candidates were. A completely different individual has been inserted from outside.

[Lord Coaker (Lab)]

All I can say in response to the concerns raised by the noble Lord is that we believe that the appropriate way for Parliament to be involved is through the Defence Select Committee. I have heard the points that noble Lords have made with respect to that. The appointment of the Armed Forces commissioner will be subject to the full public appointments process, overseen by the office of the Commissioner for Public Appointments, so we would expect it to be a rigorous and open recruitment process. We expect the Defence Committee to be involved in the recruitment process and to consider the appointment once it has been made. Of course, the Secretary of State is ultimately the final decision-maker, but, as the noble Lord said, he will carefully consider what the chair of the House of Commons Select Committee says.

[Lord Russell of Liverpool (CB)]

I point out to the Minister that the two processes that I was talking about were run under precisely the rules that he has just laid out.

[Lord Coaker (Lab)]

All I can say is that our belief, understanding and intention is for it to be an open and transparent process, subject to the scrutiny of the House of Commons Select Committee, which we would see as having a role. Of course, in the end, the Secretary of State ultimately has responsibility for the decision whether to appoint or not. We in this Committee all know the power, influence and significance of the Select Committees of both Houses. They are powerful and significant committees that carry a huge amount of influence and weight and, as I say, the Secretary of State will fully take them into account before making a final decision.

--- Later in debate ---

[Lord Russell of Liverpool (CB)]

When I saw Amendment 6 from the noble Lord, Lord Beamish, I put my name down in addition to his because of what I am holding in my hand: a fact sheet that was given to us at the very helpful briefing given by the Minister at the Ministry of Defence. I will read from the fact sheet; I ask your Lordships to look for the word “may”, because I cannot find it. It says:

“Although funding for the Commissioner will be provided for from the MoD budget, the Bill contains several safeguards to ensure the Commissioner can operate independently of government”.


It says “will” instead of “may”; that is on the fact sheet. I say this to whoever prepared it; it may have been one of the gentlemen or ladies behind the Minister. A slip of the verb may have produced it, but it does say “will”.

We were talking in the previous group about allowing Parliament to have more ownership of, and more skin in the game with, this new role. Can I just suggest as an idea that, on an annual basis, the Defence Select Committee of another place has a session devoted to talking to the Armed Forces commissioner about the work that he or she is undertaking? In addition, I suggest that, on an annual basis, there should be a session held with the commissioner in camera specifically to discuss funding, resourcing and some of the issues that one may not necessarily wish to be aired in the public domain but which could be shared on a confidential basis with members of the Select Committee.

[Viscount Stansgate (Lab)]

My Lords, I will be brief. The Government set great store by the independence of the commissioner. We all agree that that is vital, yet this amendment is necessary because the possibility is left open that it will not be properly funded. I find that remarkable. As my noble friend said in moving his amendment, this would detract from the independence of the commissioner.

I do not see why the Government should be allowed to say that they are fully committed to this new post and to giving it the resources that it needs—this was on the fact sheet, which I also picked up; I should have brought it with me—while, at the same time, they will not guarantee this funding in the Bill, which will become an Act. That is all I have to say. I am afraid that I cannot quite imagine what my noble friend the Minister will say in response because this is so clearly something that will set in stone the importance of the work and independence of the commissioner.

Armed Forces Commissioner Bill

Lord Russell of Liverpool Excerpts

2nd reading
Wednesday 5th March 2025 Lords Chamber

[Lord Russell of Liverpool (CB)]

My Lords, I support the Bill. The reason that I am standing here talking is partly thanks to the Minister. The noble Lord, Lord Coaker, was the person who suggested that I should immediately go and take part in the Armed Forces Parliamentary Scheme when I sent him an email about it. For the last two years, I have had the privilege of graduating in the Army scheme and then the Navy scheme. Just over a year ago, I was with the Royal Marines in the Arctic, which is extremely relevant and useful training for the temperature in the Chamber this evening.

The second reason is because of the late and much-lamented Baroness Massey of Darwen. The Minister may remember, because he was speaking for the Opposition, a Bill when we talked about the Army Foundation College in Harrogate. I suspect that is what the noble Baroness, Lady Bennett, was referring to. The Army Foundation College is a good example of an issue that is systemic and thematic; some of the recent cases, over the last 10 years, are pretty harrowing. They have continued for a long time and will continue into the future until and unless someone such as the new Armed Forces commissioner grabs hold of it and does something about it.

The German model that we are following is a good one, but it has been around for a long time. For reasons that I think we can all understand, it was set up in 1959 in the wake of the devastation created by the German armed forces and the need to completely rebuild them from the bottom up. By contrast, today we are talking about the third iteration of us trying to find something similar to what the Germans have. We started this only in 2008, so we are rather late to the party. I think we are playing catch-up. The evidence is in the key recommendations of the German armed forces commissioner in her last report. The areas that she focused on were personnel shortages and operational readiness; ageing equipment; recruitment and retention; bureaucratic challenges; and mental health and welfare.

Those areas are an interesting contrast with the last report of our current commissioner, because the German ones were to some extent looking at the problems of today, but in looking at issues such as personnel shortages, operational readiness and ageing equipment, they were actually looking to the future. Look, by contrast, at what the last commissioner here said in 2022: it was about the system. It was about efficiency and fairness, resolution time, system improvements and performance metrics. Lastly, it was about bullying, harassment and discrimination.

A lot of the effort of the current commissioner has been simply to get the system working because it is not working. The Germans have a system—as one might expect—that does work, but they have about 70 years on us in terms of getting it going. We need to effect change quickly.

In visiting the Army and the Navy in the Armed Forces Parliamentary Scheme, one is very impressed, and almost overwhelmed, by the range of regimental silver, flags, plaques and paintings. I have never had so many photos taken of me in my life. There is an understandable fierce pride in the past, but I sometimes wonder whether the pride in the past and the retelling of the great stories of the past in some ways stop us thinking as much as we should about the future. That is a cultural issue which the Armed Forces need to deal with.

I have a series of questions for the Minister which I do not expect him to be able to answer, brilliant though he is. First, because we are in catch-up mode—other noble Lords referred to this—will the funding and the staffing be adequate for the scale of the task, given how much the current commissioner is focusing on getting the system working, let alone dealing with the complaints coming in? The Germans have 60 staff, the current commissioner here has 26. We may initially, for a two- or three-year period, need significantly more than that simply to get traction and to get the basics right.

Leadership is key. I know the commissioner cannot be a regular, a reserve or a civil servant. If you look at the example of the German commissioner, she is a lawyer, and she was for 11 years a Bundestag deputy—a very senior one. When she was appointed, immediately after she stepped down from being a deputy, elected by a large majority of the Bundestag, she was able to hit the ground running. She has strong relationships and knowledge within the parliament, which have been enormously helpful. I hope that will be taken into account when thought is given to the type of person we are looking for: we need somebody who really knows what they are doing.

The Armed Forces, like many an institution with more history than is good for it, can be quite defensive culturally—for completely understandable reasons. Might it be possible, or even necessary, for the commissioner to have ex-members of the Armed Forces as his or her staff, or even that one could appoint people on secondment into the office, denoting that you are high potential, that you are going places, and that spending a period in the commissioner’s office is a big plus and is an important part of your development?

Next, given the issues around bullying, harassment, discrimination, violence against women and girls, and mental health, it is unreasonable to expect that the commissioner will have the right level of expertise and experience to deal with these issues in-house. We mentioned this and discussed this in the very helpful briefing the Minister gave last week. I appeal to the Ministry of Defence to think about the commissioner developing relationships with a variety of organisations that have this expertise, so that they can access it very quickly as and when they need it, rather than thinking when something comes up, “Oh, where do I go for help?”

Lastly, on the issue of entry to premises, it is crystal clear that the German armed forces commissioner has carte blanche to go wherever in the world she wishes with no advance notice whatever being given to the armed forces; such is the level of trust, that works. Could we not do the same here?

Relations with Europe

Lord Russell of Liverpool Excerpts

Thursday 10th October 2024 Lords Chamber

[Lord Russell of Liverpool (CB)]

My Lords, I will focus my speech on the Council of Europe. I suspect I am preaching to the converted because the Minister and I actually met as joint members of the Parliamentary Assembly for the Council of Europe in 2018. Since then, I have had the privilege of being the lone Cross-Bench non-political member of the parliamentary assembly.

I would describe the last six and a half years as witnessing a state of not particularly benign neglect by previous Governments, and I think that there is now a chance for a real reset. We were a founding member of the Council of Europe in 1949. We are one of the four “grand payeurs”, those who pay the most money into the organisation, together with France, Germany and Italy. We have an excellent track record in front of the European Court of Human Rights, despite whatever at least one of the contenders for the leadership of His Majesty’s loyal Opposition appears to believe.

However, we have had a very limited focus and attention from previous Governments on our membership. There has been what I would describe as a somewhat indiscriminate choice of members. In the case of the noble Lord, Lord Coaker, and others, at the time I joined most of them were chosen because they were not supporters of the then leader of the Labour Party, and it was a convenient way of getting them out of Westminster for certain weeks during the year. In my experience, the majority of MPs who are on the parliamentary assembly, from whichever party, have little interest and rarely even bother to come or participate. If they do wish to do so, it is particularly disappointing when, in my experience, the Whips in another place do not give people slips to go and do their duty in the parliamentary assembly.

The Council of Europe gives us a real opportunity to exercise a high degree of soft power rather effectively. Most of the key elements are not well known. The European Court of Human Rights is well known, as is perhaps the council’s support for Ukraine, but it is also the repository of about 200 or more conventions on a whole variety of areas, excluding defence. These include cybercrime and anti-money laundering—I suspect these are subjects close to the heart of the noble Baroness, Lady Hodge, and she would be a very welcome member of the parliamentary assembly if she was chosen by her party. It covers artificial intelligence, anti-doping in sport, anti-corruption, prevention of torture, data protection, criminal law co-operation, the quality of medicines and avoiding counterfeit medicines, the environment, the protection of wildlife and habitats, human rights and, of course, the Istanbul convention.

My plea to the new Government is: for goodness’ sake, please take the Council of Europe seriously. We should be extremely proud of having been a founder and we really should take it more seriously. I appeal to the Minister to tell the Chief Whips in both Houses—Sir Alan Campbell in another place and the noble Lord, Lord Kennedy, in this House—the Minister for Europe, Stephen Doughty, the Lord Chancellor, Shabana Mahmood, and the Attorney-General, the noble and learned Lord, Lord Hermer, who is in this House, that we need a complete and utter reset. We need quality people on the parliamentary assembly and, from the party in office, really strong leadership, not dissimilar to the leadership Sir Roger Gale gave very effectively prior to 2019.

I end with a tribute to those in Strasbourg, our ambassador Sandy Moss and his outstanding team, who support and give the United Kingdom a voice probably beyond the degree of input that we give it. I also pay tribute to Nick Wright and his team here in Whitehall, who enable us to take part so effectively.

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.

--- Later in debate ---

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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

--- Later in debate ---

[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.

--- Later in debate ---

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

--- Later in debate ---

[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.

--- Later in debate ---

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.