Overseas Operations (Service Personnel and Veterans) Bill

Lord Tunnicliffe Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 20th January 2021 Lords Chamber

[Lord Tunnicliffe (Lab) [V]]

My Lords, I thank everyone who has contributed to today’s debate. I am struck by the overwhelming support for the Armed Forces on all sides, the desire to stop troops being plagued by vexatious claims, the passion to respect our international obligations, and the need to get this legislation right. I join colleagues in paying tribute to all the men and women who keep our country safe, especially those currently helping with the Covid-19 response. They make us proud to be British.

Labour and the Armed Forces ultimately want the same thing: to protect troops who might be sent overseas. We recognise that there has been a long-running problem of baseless claims arising from Iraq and Afghanistan. We need to overhaul investigations, and set up safeguards that are consistent with our international obligations and that ensure troops have the right to compensation. But the Bill, as it stands, is not the solution.

During today’s debate, I have been struck by the broad coalition of concerns around the Bill—a coalition that spans from the Royal British Legion to Human Rights Watch. On the main oversight—the failure to tackle endless investigations—the former Judge Advocate-General, Jeff Blackett, has said:

“The presumption against prosecution does not stop the investigation”.—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 127.]


The former Commander Land Forces, General Sir Nick Parker, has said:

“The emphasis appears to be on prosecution. In reality, it should be on what is happening in the investigative process”.—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 96.]


Why was the Bill drafted to be entirely silent on investigations?

On presumptions against prosecution, Human Rights Watch has said that

“this Bill, unamended, would probably significantly increase the risk of UK service personnel … facing investigations from the International Criminal Court”.—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 6/10/20; col. 65.]

Does the Minister want to see British troops being dragged to the ICC?

On the failure to exclude other crimes against humanity, Conservative MP David Davis said that the Government were

“right to exclude sexual offences, and the Government should exclude torture on exactly the same grounds.”—[Official Report, Commons, 3/11/20; col. 227.]

Why are torture and genocide not already included in exclusions?

Concerning civil claims against the MoD, the director-general of the Royal British Legion has said that

“the six-year longstop could be a breach of the armed forces covenant”.—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 83.]

The Association of Personal Injury Lawyers has even said that the longstop means that service personnel will have fewer rights than prisoners. Why do the Government continue to ignore the impartial advice of the Royal British Legion that the Bill risks breaching the Armed Forces covenant? These concerns come from former service personnel, organisations representing our troops, and human rights and legal experts. Their concern—as is Labour’s concern—is for Armed Forces personnel. The Government need to listen.

Ministers also need to recognise that important parts of this Bill are missing. My noble friend Lord Touhig outlined how the Bill does nothing to tackle repeat investigations. But, as well as this, when legal steps are taken, we need to make sure that troops have the support they need. We will be supporting a new MoD duty of care in relation to legal, pastoral and mental health support for personnel involved in investigations or litigations. Legal aid, too, is an essential part, and there needs to be a review of access for service personnel.

We also need to improve the transparency of derogation and decisions taken by the Attorney-General. We will therefore be arguing that derogations from the ECHR should be approved by Parliament and that the Attorney-General should also lay out to Parliament why they granted or refused consent to prosecute. These steps will enhance the accountability of such important decisions.

Britain’s Armed Forces are renowned worldwide for their dedication, professionalism and skill. We owe it to them to get the Bill right, but we cannot do that if the hard-line, and somewhat naive, position the Government took in the other place continues. No Government will get legislation right when it is first presented to Parliament. As legislators we seek improvements; that is our job. I say with admiration for the Defence Minister in our House that I hope she will change tack and engage with all colleagues positively on the Bill. Those of us on this side of the House strongly wish to do so, and to build a constructive consensus for our troops, our international commitments and our reputation, to solve the problem for good.

Armed Forces Act (Continuation) Order 2020

Lord Tunnicliffe Excerpts

Monday 16th March 2020 Grand Committee

[Baroness Smith of Newnham (LD)]

My Lords, I welcome this statutory instrument which, as the Minister has pointed out, is a short but crucial piece of legislation. She has rightly highlighted the importance of our Armed Forces and the crucial role they play both in the United Kingdom and abroad, highlighted by their response to flooding, piracy, terrorism and challenges to fisheries. I realise that I might be going slightly beyond the remit of the legislation, but if we did not have any Armed Forces, they would not be able to do what I am about to ask. Might she be able to say a little about what the Armed Forces might be expected to do in the coming months and years?

We are now being asked to ensure that the Armed Forces can continue for a year. That is clearly important, but this is a year when we may, for example, see Parliament being prorogued. My one question is: given that the Minister said that the Armed Forces would essentially cease to exist if Parliament did not authorise their continuation, what would happen in the event that Parliament were prorogued at a time when such a statutory instrument was needed? Clearly, at the moment we are sitting and able to give our views, but this is an important issue for the longer term. I would be really interested to know to what extent the Government are assuming that the Armed Forces may be deployed domestically in the coming weeks and months. What provisions are in place for that?

Further, what do the Government have in mind for the integrated security and defence review? We were told that it was to take place ahead of the comprehensive spending review but that was all on the assumption that it was business as usual. However, the current situation is far from business as usual.

The Prime Minister has just announced that we should be suspending social contact, and, as far as possible, working from home. It is difficult to see how the Grand Committee could work from home. It is even more difficult to see how most of the Armed Forces could work from home. Obviously, civil servants and Ministers could work virtually when they are thinking about the integrated security review. Is that the plan or is there a possibility that the longer-term thinking about security and defence could be deferred so that Ministers and civil servants can give sufficient thought to what we might require? That is because what we might have expected to be the security challenges if we had been heading towards a review on 30 November 2019 will look quite different on 31 March this year. Are the Government thinking about any alternatives? However, we are obviously very supportive of this statutory instrument to make sure that the Armed Forces can continue at least for the next year.

[Lord Tunnicliffe (Lab)]

My Lords, I too thank the Minister for introducing this continuation order. I think it is about the sixth or eighth time I have dealt with something like this order from these Benches. We tend to reflect on the Bill of Rights, and so on and so forth, and take a general view of the Armed Forces and how they are faring. But the order allows for the continuation of the Armed Forces Act 2006 and the service justice system, which I want to comment on in particular.

However, first I will say a few words about how the Armed Forces are working now. I lay no criticism at the feet of the men and women of the Armed Forces, and I join the Minister in praising them for what they do. My criticisms are, of course, about what the Government have done.

The Armed Forces represent some of this country’s best of the best. Across the world, they work hard to liberate and keep civilians safe from terrorist organisations, serve on peacekeeping missions, and step in to provide humanitarian relief in the wake of hurricanes and other disasters. Therefore, Labour supports the Armed Forces Act (Continuation) Order. But we do not support the way the Government have been treating personnel and the recruitment process or providing housing to Armed Forces families over the last 10 years.

There has been an alarming downward trend in the number of personnel in the Armed Forces. In 2010, there were 102,000 regulars in the Army, 40,000 in the RAF and 35,500 in the Royal Navy. They are all substantially smaller now. The Army and the RAF have been cut by 25%, and the Navy is down nearly 20%. The trajectory is quite worrying: every single service has fallen over the last 10 years. It is no surprise that the Government have removed the 82,000 Regular Army personnel commitment from their manifesto. Will the integrated review set personnel targets like the 2015 SDSR?

The steady decline in satisfaction with service life is also a significant worry. The proportion of all personnel reporting satisfaction with service life in general was 60% in 2010. In 2019, it had fallen to 46%. Will the Minister set out what plans they have to improve morale and retention?

Labour remains concerned about the future accommodation model and the possibility that it may be used to push more personnel and their families into the private rented sector, with all the associated uncertainty and added cost. Research from the Army Families Federation has found a number of flaws in the information provided on the future accommodation model. Some 48% of respondents said they had received no information about it at all, with only 2% saying that they had received a great deal. We have not been updated on progress with the defence estate for more than a year. It is particularly urgent, given that troops will return from Afghanistan within 14 months, following the recent deal. Our troops and local communities need to be kept updated. Will the Minister update us on progress with the defence estate?

--- Later in debate ---

The noble Lord, Lord Tunnicliffe, raised a number of interesting points. He referred to the service justice review report. If I understood him correctly, he is concerned about the continuing jurisdiction of the court martial for certain crimes. He wondered if it would not be preferable to deal with these matters under the civil justice system. I wish to assure him on two counts. First, there is no evidence to suggest that defendants dealt with in the service justice system are not treated as well as they would be in the civil justice system. We recognise that there are areas in which we can do better. We are committed to making the service justice system more effective and efficient to provide a better service to those who use it, particularly victims and witnesses.

[Lord Tunnicliffe]

Can I address that point? These are not my conclusions. A High Court judge and a chief constable, working for the Government, have produced a report basically saying that it is not appropriate for these crimes to be tried by court martial because they are so serious. Surely if one is accused of murder, going in front of a civil court where the “beyond reasonable doubt” concept is reinforced by either a unanimous or significant majority jury decision is different from a military court where at the moment a guilty verdict in such a case could come about through a simple majority where one number is one greater than the other.

[Baroness Goldie]

I was coming to the point that is of concern to the noble Lord on the issue of which system of prosecution is used. As we say in our response to the review, we will adopt the alternative approach identified in the review of assessing the prosecutors protocol and relevant supporting documents to ensure that they support the principle that the service justice system should deal only with those cases where there are good reasons for doing so. In other words, cases will ordinarily be tried in the civilian system unless there are good reasons why they should be tried in the service justice system. The main principle in deciding who has primacy is whether the offence has any civilian context, especially a civilian victim.

The other aspect of the review which the noble Lord raised was recommendation 4. He had a number of questions about that, such as the five-to-one qualified majority. He asked why the MoD has had this report for over a year and yet still has not come to a decision on these recommendations. Again, I reassure him that we have been working with our stakeholders on all aspects of the review. Some of the changes will require primary legislation, so we must wait for an appropriate opportunity to deal with them. We are considering these matters for the next Armed Forces Bill, which must be passed by Parliament before the end of next year. I hope that has gone some way towards reassuring the noble Lord that matters are under consideration.

The noble Lord also raised the issue of recruitment. My understanding is that the recent Army recruitment figures contain some rather encouraging information which suggests that there has been a marked increase in uptake on investigating the Army as a career. However, the noble Lord is right that getting the application figures up is only part of it; retention is another major issue which the Government are well aware of. Everything is being done to ensure that if applicants are successful and subsequently recruited, they will be given a career prospect which is conducive to their wanting to remain in the Army.

The noble Lord is absolutely correct about the very important matter of accommodation, which is connected to this. An attractive and affordable accommodation offer helps to deliver military capability and contributes to attracting and retaining service personnel. He may be aware that the MoD has developed the future accommodation model to improve choice about where, with whom and how service personnel choose to live, reflecting modern family life with entitlement based on need, not rank. We very much hope that this model, which is being piloted at HM Naval Base Clyde, Aldershot Garrison and RAF Wittering—the latter from 31 May—will provide productive examples of what works and what does not. I can reassure him that efforts are being made to look at providing accommodation suitable to modern living; he is quite right that we should give reasons to people who join the Armed Forces why they should stay.

[Lord Tunnicliffe]

Before the Minister continues, perhaps I may record my concern about her answers. The MoD commissioned a report using the best people available. As far as I can see, the recommendations of that report will not come before Parliament unless a particular recommendation suits the Government and they bring it forward for primary legislation. The failure to act on the recommendations, as far as I can see, will not come into the public domain unless I find some way of raising it in Parliament in the future.

[Baroness Goldie]

I am sorry if I have failed to reassure the noble Lord. I have tried to cover the points he raised. I will certainly look at Hansard to see whether there is any more detailed information which I can provide for him. Any government review is always the subject of scrutiny by such vigilant observers as the noble Lord. It is always available to parliamentarians to look at what a review says and, where subsequent legislative proposals may not seem to reflect that, it is the right of parliamentarians to raise that with Government. I have tried to reassure him that the Armed Forces Bill will cover certain aspects of the matters he has raised, but I will look at Hansard and, if there are any areas where I can provide further information, I shall undertake to do so.

I am very grateful for the debate we have had. I have already moved the order and hope the Committee will agree that it should be passed.

Security, Defence, Development and Foreign Policy: Integrated Review

Lord Tunnicliffe Excerpts

Wednesday 4th March 2020 Lords Chamber

[Baroness Goldie]

The noble Baroness asks a serious question. In an endeavour to reassure her, let me say that the review is a serious, substantive proposition. As I have indicated, it examines areas of policy, defence strategy, alliances, international partnerships and so forth. The review is deliberately wide-ranging, as it has to be, but it will be underpinned by our existing commitments to contributing 2% of our GDP to NATO and 0.7% of GNI to development and, of course, to maintaining our nuclear deterrent, which will be a core part of the review.

[Lord Tunnicliffe (Lab)]

My Lords, there is a general consensus that the 1997-98 strategic defence review was serious and thorough. It involved 14 months of consultation and included a panel of 18 external experts, submissions from 450 MoD civilian and service personnel, seminars with defence and foreign affairs specialists, written public submissions, and base visits so that 7,500 staff could express their views. If this is the biggest review of our foreign, defence, security and development policy since the end of the Cold War, as the Government keep repeating, can the Minister unambiguously confirm that the consultation will be at least equal to the 1997-98 process?

Reserve Forces and Cadets’ Associations

Lord Tunnicliffe Excerpts

Monday 27th January 2020 Lords Chamber

[Lord Tunnicliffe (Lab)]

My Lords, I thank the noble Lord, Lord De Mauley, for securing today’s debate, and join noble Lords in praising the work of the Reserve Forces and Cadets Association. Its 13 regional associations play an important role in local communities by recruiting cadets and volunteers, building close ties with different people and organisations and promoting the Armed Forces covenant. The tailored regional approach is a great asset and their popularity is clearly seen by a volunteer membership standing at around 8,000.

We know that the Government are currently conducting a review of the RFCAs. When will it be published? We understand the MoD must reconstitute the RFCAs’ schemes of association every five years, and with a March deadline this year, surely the report must be published soon. While associations have Crown status, I understand there is confusion about their administrative classification. Could the Minister explain how they are classified by the MoD?

Associations are closely involved in building up the cadets. Labour strongly supports this work, as cadets continue to offer new horizons for young people who learn teamwork, resilience, confidence and self-esteem through their involvement. Last year, I spoke in a debate about the important cadet expansion programme. How do associations operate in relation to that? I also stressed that there has been a 2% decrease in the number of young people involved with cadets, as well as a 7.5% decrease in the number of adult volunteers. Can the Minister give an update on what the Government are doing to reverse this trend? Will the review into associations also consider best practice for safeguarding?

I am sure the whole House would like to commend the associations’ work on the Armed Forces covenant. The covenant represents the solemn and enduring commitment that we owe to members of the Armed Forces community. Regional associations help different businesses and organisations fulfil their covenant pledges and, in 2019, the total number of signings of the covenant passed 4,000. It was great to see even large multinational companies, including Facebook, signing up and demonstrating their responsibility to communities.

Labour supports the covenant and the important guarantees that underlie it. Building on the Queen’s Speech, the Government have said they will

“progress proposals to further incorporate the Covenant into law to mitigate any disadvantage faced by the armed forces community due to the unique nature of military service.”

Are they consulting on these proposals and when will they be published? Importantly, will these proposals include a provision to place greater responsibility on public authorities to ensure greater consistency in the implementation of the covenant?

On the central point of the noble Lord, Lord De Mauley, I am unable to make a Front-Bench judgment. However, it is clear from the debate that the present system works well. The Government should require change only if they can clearly show that there is real advantage. Should they introduce a new system and performance declines, we will certainly hold them to account. Change for change’s sake is a dangerously overrated policy.

Drones: International Law

Lord Tunnicliffe Excerpts

Thursday 16th January 2020 Lords Chamber

[Lord Tunnicliffe (Lab)]

My Lords, I thank the noble Lord, Lord Hodgson, for securing today’s important debate. I have been watching developments between the US and Iran with great concern, as we all have. First, I stress the need for de-escalation, the restoration of relations between countries and for international institutions to be the primary mechanism for defusing the situation. Diplomacy not drones must be the priority when it comes to the Middle East, but the US strike assassinating Qasem Soleimani marks a new chapter. Despite the use of drones increasing, this was the first time the US had used the technology to kill another country’s senior military commander on foreign soil.

I fear that we are moving toward a dangerous world where drones are believed to be a quick and easy solution to complex problems—but, as the assassination demonstrates, any use of military force has serious knock-on consequences. These have ranged from retaliatory strikes on two Iraqi bases housing US troops to at least 400 UK troops in Iraq being placed in immediate danger and a commercial plane being shot down by Iran, killing 176 people. While shooting down a passenger jet is a despicable act, the incident illustrates the impact that escalating tensions can have on totally innocent civilians. I will take this opportunity to express my condolences to the families and friends affected.

The use of drones outside armed conflict often rests on the legal argument for self-defence under international law. Indeed, the US initially stated that the drone strike was justified as a self-defence measure. However, this shifted in the days after the strike, with Secretary of State Mike Pompeo pointing to previous actions of Soleimani as justification. Since the UN’s special rapporteur on extrajudicial killings said that the attack “most likely” violated international law, can the Minister confirm whether the Government consider that the use of drones must be in accordance with international law? The Joint Human Rights Committee has called for the UK to take the lead in building a consensus on how legal frameworks are applied, and I reiterate this today.

Despite legal questions, drones and other autonomous weapons will continue to reshape warfare. Jane’s Information Group estimates that more than 80,000 surveillance drones and almost 2,000 attack drones will be purchased around the world in the next 10 years. The country that invests the earliest and most aggressively may end up in a position of military supremacy. People have argued that we should welcome such weapons systems because of their increased accuracy and the removal of harm for not only military personnel but civilians. While this can be the case, civilian casualties can never be ruled out, and autonomous weapons will continue to raise numerous concerns around oversight, accountability and human rights. In the short term, a definition of autonomous weapons would help lead to the creation of norms, even in the absence of the clear application of legal frameworks. Can the Minister explain why the UK Government are yet to adopt any internationally recognised definition of autonomous weapons? We should also use parliamentary committees to increase scrutiny of the MoD’s use of drones and emerging technology.

The long-term question is whether humans will be removed from the loop, allowing AI-powered drones to select and kill targets with no human oversight. While the UN Secretary-General has described such machines as “morally repugnant”, the UK spoke forcefully against regulation on lethal autonomous weapons at UN talks last year. Can the Minister explain why the Government are so against regulation? The UK should be taking a lead on this issue internationally and considering how arms treaties can be upgraded to stop the development of fully autonomous weapons.

Drones, machine learning and AI have already started an arms race between nations that will reshape geopolitics in the years to come. While I welcome the Prime Minister calling on parties to “dial this thing down” to de-escalate tensions in the Middle East, the oversight and accountability of drones must be dialled up.

Nuclear Weapons

Lord Tunnicliffe Excerpts

Tuesday 14th January 2020 Lords Chamber

Asked by

[Lord Tunnicliffe]

To ask Her Majesty’s Government what assessment they have made of the (1) management of, and (2) overspend on, the United Kingdom’s nuclear weapons programme.

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, as the National Audit Office has acknowledged, nuclear infrastructure projects are often large and complex, with bespoke designs. We are carefully examining the report’s conclusions and shall respond formally in due course. We are committed to strengthening the management of nuclear programmes, including investing significantly in infrastructure and working closely with regulators and industry partners.

[Lord Tunnicliffe (Lab)]

My Lords, the recent National Audit Office report on nuclear deterrents found that the UK’s nuclear weapons programme is overrunning by £1.3 billion, partly due to poorly written MoD contracts which resulted in the Government paying for mismanagement and delays, rather than the companies responsible. Will the Minister explain where the money will be found for these extra costs? I hope it will not be from the dreadfully overstretched MoD equipment budget. Will she confirm that the integrated security, defence and foreign policy review will examine how the MoD negotiates? Will she set out what has been done to build up departmental skills in nuclear capacity?

[Baroness Goldie]

In relation to the noble Lord’s second-last question, the review will be broad-ranging and its remit will become clear. The MoD expects to have a relevant role to play in responding to that review. The National Audit Office report is not an easy one for the MoD; we are quite clear about that. At the same time, as the report itself recognises, these projects are at the top end of technical, contractual and structural complexity; they do not come much tougher than these. It is important to get this into some kind of timescale perspective. It is good to see that the report recognises, under the heading of acknowledging MoD improvements, that the department has made improvements since the establishment of the DNO in 2016. These are important improvements, because they include material changes to the organisational structure, to improving relationships and to contract renegotiations.