Single Source Contract (Amendment) Regulations 2024

Debate between Lord Tunnicliffe and Baroness Smith of Newnham

Tuesday 19th March 2024 Grand Committee

[Baroness Smith of Newnham (LD)]

My Lords, I am grateful to the Minister for introducing this statutory instrument and explaining very clearly the purposes of the regulations being proposed.

Unlike so many of the statutory instruments linked to defence, this is quite a weighty document. Some of the amendments are relatively straightforward, although one wonders why nobody scrutinising the 2014 Act spotted the difference between percentages and percentage points. The Minister and I can be exonerated because I joined your Lordships’ House only in October 2014 so I was not party to any scrutiny at that point. I suspect that the Minister was not in the House at that time either and I am sure that the noble Lord, Lord Tunnicliffe, bears no responsibility. However, we clearly always find things that have been omitted. We have already heard that another slight error was found even when these regulations were being laid; that makes it clear how important it is that we scrutinise things properly.

First, what sort of reporting is envisaged for the single source procurements that are being talked about? The Explanatory Memorandum makes reference to

“reports to the Secretary of State”

but is there any scope for parliamentary scrutiny of the procurements that will be in place?

A second major item that I want to ask about is the substitution of Regulation 3, on the meaning of “defence purposes”, with Regulation 4, on the meaning of “defence purposes” and “substantially for defence purposes”. Something that puzzles and worries me somewhat is this statement:

“‘Defence purposes’ means the purposes of defence (whether or not of the United Kingdom), or related purposes”.


Can the Minister explain to the Committee how extensive that can be? Does it relate to the procurement of defence capabilities that we would then export as part of our defence industrial strategy and defence exports? Should we be concerned about aspects of this that could be linked to the export of arms to regimes about which Parliament might have some reservations, for example? Some clarity on that would be most welcome.

The general points that the Minister outlined on flexibility, speed and clarification in the light of the users of single source contracts are sensible, but I wonder whether we could hear more about the extent of the changes; they are to bring in not just “defence purposes” but “substantially for defence purposes”, which can mean 30% or more of a contract. What is that likely to mean for the number of contracts that might be brought within the purview of these regulations and the scale of the value that we would be looking at? Will a significant change arise from the Procurement Act?

On primary contracts and subcontractors, the changes to profitability and moving things to the cost line make a lot of sense, but could we understand a bit more about how the decisions on what should be dealt with at market rate are determined? If we look at market rates and the defence supply chain, where is the competition? Are we looking internationally? Are we looking to comparators—for example, if we buy a widget, are we looking at what it costs in Germany, the United States and South Korea—or are we looking at a wider civilian market? All these things, almost by definition, are not outlined in the regulations but it would be useful for the Grand Committee to have sight of them.

[Lord Tunnicliffe (Lab)]

I rise with a heavy burden because I was the party spokesman in 2014 when this document was created. If you think that this document is a problem, you should compare it to the Yellow Book that preceded it. I thank the Minister for presenting this instrument, but I must confess that I am not going to say anything terribly new. He has touched on the issues already; in a sense, all I am going to do is ask for a few comments on the converse of the goodness, where we are raising problems. I am also responsible because I was a founding director of DE&S, which managed this. It is an old friend; it requires old glasses as well.

The Government recently made a Statement in which, at long last, they admitted to a number of problems in defence procurement and set out some rather vague ambitions to fix them. Although these regulations are not relevant to the whole of defence procurement—just those contracts that are awarded to a single supplier without competition—there are, as the Minister said, 575 single sources adding up to a total spend of around £90 billion. These are sizeable chunks, and it is important that they are taken in the wider context. We know that there are times when single source contracts work well, particularly for more traditional procurements such as ships, aircraft carriers and submarines. However, for less traditional contracts, such as in the digital sphere, they are less effective; in this case, I expect that the respective difficulties in establishing precise timeframes, specifications and knock-on effects are a big reason for that, but I would welcome the Minister’s further thoughts.

I will not spend too long reflecting on last week’s Statement but, as the noble Lord, Lord Coaker, said in his response, it is important that we get defence procurement right not just for the sake of being careful with taxpayers’ money—although that is of course important—but because of the message that it sends to the world in terms of our sovereignty, economy and obligations to our allies. This may sound slightly ridiculous in the context of a single statutory instrument but it is an important principle.

I turn to the specific details of these regulations. As the Minister explained, they amend the Defence Reform Act 2014 and the Single Source Contract Regulations from the same year, which, in combination, provide the rules for these single source contracts to ensure a fair agreement between the taxpayer and the supplier. This instrument intends to increase the flexibility of these contracts so that more can be done without compromising that fair agreement. So far, so good.

The regulations achieve this in three ways. The first relates to pricing. Currently, there is a bottom-up formula. Reasonably simply, you determine the costs, add a profit margin and there is your price. These regulations allow for a contract to be priced in relation to market rates instead. This is where things get a bit more complicated, with seven new pricing mechanisms. This will certainly bring additional flexibility, but it is hard to see a situation where it does not come by trading off the simplicity of the previous system.

I ask the Minister: how exactly will the Government quantify this trade-off, when there is a loss of simplicity, which is in itself a rather abstract concept? How can the Government be sure that it is beneficial? This was raised during the consultation, to which the Government’s answer was that additional clarity and further explanation of how this will work in practice will follow in guidance. That is not ideal either for the suppliers that are responding to the consultation or for those of us contributing to this debate and attempting to scrutinise this instrument. What is the Government’s plan if, in practice, these new mechanisms do not work as intended? I understand that this dilemma has been shared with the industry and will be published in a few weeks, but perhaps the Minister will take this opportunity to set out a bit more detail and even share any feedback received from those with whom it has been shared.

I have fewer concerns about the other two ways in which flexibility is increased. Allowing contracts to be split up into different components so that they can benefit from different profit rates may again reduce simplicity, but it certainly seems to make sense. Have the Government made any assessment of the negative impact of not allowing this in the past 10 years? Would this apply only to bottom-up pricing or to the new mechanisms too? Could different components be priced entirely differently? Can the Minister assure the Committee that the pricing is the full extent of how components are split? I ask these questions on a similar basis to my previous concerns that every layer of additional complexity could undermine the benefits of additional flexibility. To check against this, what steps are the Government taking to ensure that, in practice, the mechanisms work as they hoped?

The third key change is widening the definition to qualify under the 2014 Act. As I see it, this has the potential of making quite substantial differences to the significance of this instrument. Even a reasonably small adjustment in the number of contracts could be worth many millions. Given the variability of how well single sourcing contracts work, which this instrument may improve through additional flexibility, our biggest concern, which the instrument does not necessarily address, is that widening this scope could draw in contracts that have no benefit being processed in this way. Have the Government considered this? Have they made any assessment of the qualitative widening in this way and, if they accept it, are other steps being taken to prevent it, or is it also an accepted trade-off?

Finally, and more generally, it is not long at all until these regulations come into effect on 1 April. When they were considered in the other place just under two weeks ago, the Minister for Defence Procurement said that the guidance will be published in four weeks. I put it to the Minister that that is after the implementation date. Whether that is correct or otherwise, if a movement on the contract needed to be made, nothing has been taken away from the old regime, so I am sure that this would not be a critical issue, but it raises a wider question. Consultations on these changes began in 2019 and a lot has happened since then. After all that time and all that has happened, it is not exactly reassuring for things to be pushed so close to the wire. Will the Minister comment on that and perhaps reassure us that this SI will work as planned?

From what I hear, the regime that we are talking about has been a great success. It is a vast improvement on what happened before 2014, and therefore my comments are not meant to be unsupportive. To be even more supportive, I shall be entirely content with a longish letter.

Pensions Appeal Tribunals (Late Appeal) (Amendment) Regulations 2022

Debate between Lord Tunnicliffe and Baroness Smith of Newnham

Tuesday 17th January 2023 Grand Committee

[Baroness Smith of Newnham (LD)]

My Lords, often in your Lordships’ House—and I mean your Lordships’ House, not Grand Committee, as I have not forgotten where I am—we spend a lot of time looking at primary legislation and saying that we need better scrutiny, that we should not have Henry VIII clauses, that we do not want framework legislation and that we need to be able to scrutinise statutory instruments very closely. The assumption is that the Government, on occasion, are perhaps trying to pull the wool over our eyes.

We do not get framework legislation with lots of Henry VIII clauses from the MoD, but we do from other ministries, so we will perhaps exonerate the MoD from this. Here we have a statutory instrument that looks so straightforward that one almost wonders why it needs to be here, other than that we had agreed in the Armed Forces Act 2021 that we should scrutinise such a statutory instrument. In asking whether this should be considered debated and approved, it is a straightforward statutory instrument, as it is only right that service personnel and veterans who are seeking to appeal, whether they are from Scotland, Wales or Northern Ireland, are treated in the same way. The basic principle seems straightforward: everyone in the four nations of the United Kingdom should be treated the same.

I have a similar question to one from the noble Lord, Lord Jones, about the number of appeals we are thinking about—not necessarily in 2021 or 2022. Are we talking about very large numbers or is this seem primarily as a tidying-up exercise? It would be useful to know that and have a sense, looking back 15 years from 2008 to 2023, of whether many people have been done a disservice because they were in Scotland and Northern Ireland and were not able to appeal between months 13 and 24, whereas they would have been able to in England or Wales.

I like the idea of the Lord Chancellor’s steering group but agree that it would be interesting to know more about its basis and whether it is intended as a long-term body.

I have a final question. We have occasionally had other tidying-up amendments. Is the Minister sanguine about the fact that other tidying-up legislation might need to be brought forward if there are other disparities that could be doing a disservice to service personnel or veterans from one part of the United Kingdom compared to those from other parts?

[Lord Tunnicliffe (Lab)]

My Lords, I thank the Minister for introducing this instrument. It seems simply to bring appeals in Scotland and Northern Ireland into line with those in the rest of the United Kingdom, which is a good thing. I am curious, because this anomaly presumably sprang up in 2008, which was 15 years ago, about why it has taken so long to alight upon it and address it. That is the first of my two questions.

Secondly, the hierarchy for whether an appeal is allowed involves a step at which the Secretary of State may choose not to allow it. Does the Secretary of State have to respect any criteria in making this decision or is it absolutely at his discretion? I cannot see any guidance on the criteria in the instrument, but there may be a general criterion. I recall some discussion of this in the past and the requirement of Secretaries of State to behave reasonably, but I cannot see any criteria. Clearly, the stopgap—the thing that makes this reasonable —is that the tribunal may override the Secretary of State in the interests of justice, so it is not that important a point, but I am curious.

Just to make sure I have not got this completely wrong, would the Minister confirm that this measure is favourable for appellants in Scotland and Northern Ireland?

National Shipbuilding Strategy

Debate between Lord Tunnicliffe and Baroness Smith of Newnham

Tuesday 15th March 2022 Lords Chamber

[Lord Tunnicliffe (Lab)]

My Lords, the latest iteration of the Government’s shipbuilding strategy is overdue. Funding contained in it was first announced two years ago. However, it is welcome, and I am grateful to the Minister for coming to the House this evening to answer our questions.

The Defence Select Committee’s report last December highlighted how stretched the Navy’s capabilities are, with a danger that it will not be able to cope with the increasingly complex international security environment. It warns that an unexpected crisis could break it. It is vital that the Government do what is needed to avoid that dire outcome. The report urges collaboration with the UK shipbuilding sector by providing an assured pipeline of work and actively intervening to support the modernisation of yards to support the delivery of new vessels into an expanded fleet capable of fulfilling the ambition of the integrated review.

However, the strategy does not confirm the total number of ships the Royal Navy will receive. Can the Minister confirm today how many Type-32 frigates and multi-role support ships will be built and delivered? Does the “more than £4 billion” of government investment over the next three years cover any of the cost of the 150 ships in the 30-year pipeline to which the Statement refers? How much of this is new money?

Beyond this, there are two major problems with the strategy. First, why does the strategy not promise a British-built by default approach to procurement? This, as the GMB and Unite have highlighted, will kill investment and put UK jobs and skills at risk. A commitment to ensure that ships are built in UK yards, with targets for using UK steel, would build resilience in our supply chains and protect our security.

Steelmaking is a crucial component of our national security and our ability to act in our own interest. What steps will the Government take to improve the public procurement of UK-made steel in shipbuilding in order to preserve and promote jobs that are of vital importance to steel communities and the UK’s strategic independence? What is more, with foreign bidders supported by their own Governments, British shipyards are not even able to compete on a level playing field. None of this feels in line with the Government’s levelling-up strategy.

We know that a British-built by default strategy would create more jobs, but frankly, we do not know how many new jobs there will be a result of the strategy as it is. Can the Minister tell us? The Government seem to keep updating their excuses as to why we continue to procure from elsewhere, such as with a £10 million contract awarded to a Dutch yard last week. No other shipbuilding nation would act in this way. What the Defence Secretary has said is that fleet solid support vessels will be built by “British-led teams” following the decision to award the competitive procurement phase design contracts earlier this year. How is “British-led” defined? What percentage of the construction and manufacture of fleet solid support vessels will take place in British shipyards?

Secondly, the strategy does not tackle long-lasting issues of mismanagement and delivery at the Ministry of Defence. As it stands, no major shipbuilding programmes are rated on time or on budget by the National Audit Office. The number of projects rated amber or red is increasing. We know from previous experience how easy it is to underestimate both the resources and time needed for large contracts to be delivered. Can the Minister tell us what specific initiatives will be put in place to achieve on-time and on-budget outcomes? Moreover, while on the subject of contracts, I am curious about the minimum 20% weighting for social value that the strategy says will be applied for MoD shipbuilding competition. Can the Minister explain what this means in more detail? How will social value be assessed?

On a wider point, the strategy assumes a level of investment from the private sector into research, development and manufacturing. The mood seems to be that a forward-looking strategy providing a glimpse of the future to the sector will be enough to generate investment. I find this optimistic. Can the Government confirm their belief that the private sector will invest at the levels necessary without direct funding from Government? As I mentioned earlier, not having a British-built by default strategy makes this optimism even more farfetched. Is the Minister not concerned?

Those are my two main areas of concern, but I have some further questions on other aspects of the strategy. The strategy establishes the Maritime Capability Campaign Office within the Department for International Trade as the export arm of the National Shipbuilding Office. This will supposedly turbocharge UK shipping exports. Given that this has such a prominent role in the strategy, it is neither unexpected or unwelcome, but without a commitment to using UK materials and shipyards, it seems hollow. Can the Minister therefore indicate what role she expects exports to have in maintaining our shipbuilding industry? Without a commitment to using British materials, does she see the UK as simply a processing centre, to import materials from abroad and sell them on as finished vessels; or perhaps the idea is to contract foreign shipyards and then sell their finished products elsewhere, with the UK acting only as an intermediary?

Finally, with the Spring Statement now only eight days away, can the Minister confirm a big boost for defence funding, both to fulfil the ambition of the integrated review and to respond to the growing threat of Russian aggression?

[Baroness Smith of Newnham (LD)]

My Lords, I agree with many of the comments and questions from the noble Lord, Lord Tunnicliffe. It is obviously welcome to have this refreshed National Shipbuilding Strategy, but one might wonder what has happened to the ships.

We recently looked at the Type 45s. Before we get to the actual shipbuilding, ship maintenance and repair perhaps need to be thought about, so I have one very direct question for the Minister. How many of our Type 45s are currently at sea? How many are in dock? How many are seaworthy? It is surely important for the UK’s position in the world that we have ships available now, not in many years’ time.

In particular, I wonder whether this shipbuilding strategy is as ambitious as it needs to be. The Statement says:

“We have committed to procuring a formidable future fleet including up to five Type 32 frigates”—


as the noble Lord, Lord Tunnicliffe, asked, how many are envisaged?—

“alongside the Type 31 and Type 26 programmes. We will be growing our fleet of frigates and destroyers over the current number of 19 by the end of the decade.”—[Official Report, Commons, 10/3/22; col. 505.]

What does that actually mean? Will we have 20 ships by the end of the decade—an additional one? What sort of message do the Government think that sends to the international community? The Prime Minister currently says that he will lead activity against Russia. If we have only 20 ships by 2029—or does that mean 2030?—I am not sure that is terribly credible.

We have a quotation in the strategy from the Prime Minister:

“If there was one policy which strengthens the UK in every possible sense, it is building more ships for the Royal Navy.”


That is clearly welcome—as would be increasing the number of our troops—but, realistically, what are the projections for the size of the Royal Navy? How far do the Government plan for these to be British-made ships with British steel? How far do they really think any defence expenditure settlements will enable us to deliver on time? As the noble Lord, Lord Tunnicliffe, pointed out, it is very rare for defence procurement to arrive on time and on budget. With the current rates of inflation, given that defence inflation normally rises much faster than ordinary inflation, what is the realistic prospect of our increasing the number of ships and doing so on time?

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

My Lords, I first thank the noble Lord, Lord Tunnicliffe, and the noble Baroness, Lady Smith, for their observations. Although their questions, quite rightly, are penetrating, I think there is an understanding that this is an exciting document. It is not empty, vacuous flim-flam, but a very serious, holistic approach to how within the United Kingdom we sustain and grow a prosperous indigenous shipbuilding industry. I remember that one of the first tasks I had as a Defence Minister, back in 2019, was to present to your Lordships the review by Sir John Parker of the 2017 shipbuilding strategy. I remember thinking at the time that the review document was exciting and visionary.

Coming from Glasgow—or coming from Renfrewshire, near Glasgow—and having personally visited Upper Clyde shipbuilding yards when they were on the brink, I do wish to pay tribute to the trade union movement operational at the time for its assiduous work in making sure that politicians understood what the threats and challenges were. They were well informed and persuasive and I thought they did a splendid job in persuading the political process that, back then in the early 2000s, we had to make a better job of how we approached shipbuilding. I know noble Lords will remember Kvaerner on the Clyde, which was completing one order when there was no certainty about where the rest of the work was coming from. As I say, I pay tribute to the trade union movement for its determined and resolute work to try to get greater sense to prevail.

That is why, stepping forward to what Sir John Parker did in 2019, I drew a deep breath of fresh air and thought that this was really going somewhere. I have to say to your Lordships that I think this shipbuilding strategy really does pick up the baton and run with it. What I see in here are the components for a serious, well-funded, well-researched, well-supported, buoyant, competitive shipbuilding industry within the UK, and we should all be heartened and encouraged by that.

The noble Lord, Lord Tunnicliffe, echoed by the noble Baroness, Lady Smith, asked about the size of the Navy. As they are both aware, there are good things happening. For the first time in 30 years, unbelievably, we have two different types of frigate being built simultaneously. We are satisfied that the number of Royal Navy frigates will be sufficient, and we do not anticipate that number dropping below 10 this decade. That is because, in addition to the Type 23s currently serving, we will have the first Type 26s coming in, and we will start to see the Type 31s being delivered, which will all be delivered by 2028. I would observe to your Lordships that the level of shipbuilding investment by the MoD is hugely significant and puts flesh on the bones of this strategy. MoD shipbuilding will double over the life of this Parliament and rise to over £1.7 billion a year. That will certainly allow us to increase the number of frigates and destroyers beyond the 19 we currently have by the end of the decade.

The noble Lord, Lord Tunnicliffe, asked specifically about the Type 32. That is an exciting project. It is at the moment still at the concept stage, but it will be the first of a new generation of warships, with a focus on hosting and operating autonomous offboard systems. So that is a really innovatory, visionary concept. The early preconcept phase has commenced; the focus is now on developing the operational concept, and the procurement programme strategy will be decided following the concept phase, which has not yet been launched. I can confirm these ships will be UK-built, with the exact shipyard, obviously, still to be determined—that will be subject to commercial competition.

The noble Lord, Lord Tunnicliffe, also asked about the Fleet Solid Support. It is an interesting concept. It will be either a sole British build or a consortium, but the predominant interest will be British. The noble Lord asked how that fitted in with levelling up and the union. I would say to the noble Lord that I was very interested to see the graphic depiction of the map in the document itself, because it gave one of the most visual confirmations of just how critical, right across the United Kingdom, shipbuilding is. It is not just the yards building the ships; it is the huge number of small and medium-sized enterprises that are in the supply chain for that activity. All that plays its role in levelling up and in adding value to communities, which can all expect benefit from the fruits of this strategy rolling out.

The noble Lord, Lord Tunnicliffe, asked about the role that the private sector will play. As he will be aware from the strategy, there has been close consultation with the industry, as is absolutely right. We will establish a shipbuilding enterprise for growth, which will be an industry-based organisation, and we will learn from similar approaches taken in sectors such as the automotive, aerospace and space industries how to take that forward. The private sector has an important role to play in this but, as I say, it has been engaged throughout the refresh of the National Shipbuilding Strategy and is absolutely engaged on the vision contained in it.

It is also interesting to look at the definition of “shipbuilding enterprise” because it gives a good encapsulation of what we are talking about. For the purposes of the refresh:

“The term includes the design; build; integration; test and evaluation; repair; refit; conversion; and support of warships; commercial vessels; workboats; leisure vessels; systems and sub-systems.”


That is a huge range of activity, which, as I said earlier, reaches out right across the United Kingdom.

The noble Lord, Lord Tunnicliffe, asked about exports, which are an important component. As he is aware, in relation to the Type 26, we have had an export of design to Canada and Australia. It is important to acknowledge that this is an important departure from the old concept, where you designed a ship and built it so it was solely British and everything remained in the control of the British shipbuilder. The shipbuilding industry has recognised—Sir John Parker identified this back in 2019—that to have resilience and appeal to all sorts of markets, whether they are indigenous markets here or export markets abroad, we need to be able to create things that other people have an interest in acquiring. That is a really exciting development.

The Type 31 has already seen export success, with the announcement in September last year that Indonesia has selected the Arrowhead 140 design for its programme. The UK Government are working closely with Babcock on a number of other export opportunities for the Arrowhead 140; of course, the results of the Miecznik frigate programme in Poland were recently announced, so there is activity there. It is an exciting reflection of what shipbuilding is currently achieving and what the strategy recognises and can build on.

I referred to the defence funding settlement. Both the noble Lord, Lord Tunnicliffe, and the noble Baroness, Lady Smith, were interested in what lies ahead for defence. We have had the integrated review, the defence Command Paper and what most people regard as a very significant financial settlement for defence. We take nothing for granted. We live in the business of identifying and addressing threat. We have a very engaged Secretary of State who will, I am sure, be alert to how we do that and ensure that the funding is appropriate to whatever we need to deploy to address threat in future.

The noble Baroness, Lady Smith, asked whether the strategy is ambitious. Again, I was struck by a section in the document on our ambitions for the shipbuilding sector. I will not read it all out but, when I read through it, I felt as though I had had a good glass of gin—I felt uplifted. Look at the headings: “green technology”; “productivity”; “skills”; “autonomy” —developing a domestic regulatory framework for maritime autonomy so that we can lead the way on international maritime organisation—and “exports”. There are a lot of ambitions in here. Perhaps the more pertinent question is: how do we know that we are achieving them? Again, I will not bore your Lordships with the detail but there is a series of metrics which would be a useful device in measuring how we are getting on.

The noble Baroness asked particularly about Type 45s. The power improvement project has been applied to HMS “Dauntless”. She has moved into the test and commissioning phase of her programme. All three new diesel generators have been run. Initial load trials have been completed successfully, and that is a precursor to the rigorous trials programme in harbour before returning to sea later this year for sea trials.

HMS “Daring” has moved to Cammell Laird. It arrived there in September in readiness for commencement of her PIP conversion, which will be carried out during this year. This is a process whereby, as each ship is done, we learn. The other Type 45s will come in depending on operational activities and commitments. They are hugely capable, much-admired ships and are regarded as significant members of the Royal Navy fleet. I think that is a positive picture, and I am satisfied that there will be a good story to tell.

I hope that I have answered all the questions that the noble Lord, Lord Tunnicliffe, and the noble Baroness, Lady Smith, raised.

Armed Forces Bill

Debate between Lord Tunnicliffe and Baroness Smith of Newnham

Report stage
Tuesday 23rd November 2021 Lords Chamber

[Lord Tunnicliffe (Lab)]

My Lords, we welcome the increased parliamentary scrutiny for the statutory guidance on the application of the duty for due regard. This was a recommendation of the Delegated Powers Committee, which we thank for its work on this. Could the Minister give us some indication of how the consultation with the devolved Administrations on drafting the guidance is going? We also welcome the Government’s acceptance of the Delegated Powers Committee’s recommendation to ensure that regulations defining “relevant family members” are subject to the affirmative procedure.

[Baroness Smith of Newnham (LD)]

My Lords, from these Benches, I echo the comments of the noble Lord, Lord Tunnicliffe. The amendments that have been brought forward all seem sensible and, as the Minister said, we owe a debt of gratitude to the Delegated Powers and Regulatory Reform Committee for looking in such detail at this legislation, as in so many cases, and particularly for being glad, as always, to have any changes made with affirmative assent rather than negative approval. There is little to add at this stage. We look forward to the Minister moving these amendments and then moving to other groups that might be a little more contentious.

--- Later in debate ---

[Baroness Smith of Newnham (LD)]

My Lords, the noble Lord, Lord Lancaster, brought a similar amendment forward in Committee, which we discussed. He has made very clear why there is a case for expanding the role of the Veterans Advisory and Pensions Committees. He seems to be exhorting various people to think about Private Members’ Bills but, as that is not the role of your Lordships’ House today, could the Minister say how far the Government would be willing to explore his ideas? Is there a neat way in which she might be able to bring forward a suitable amendment at Third Reading which means that, while he does not need to divide the House today, the intentions could be brought on to the face of the Bill?

[Lord Tunnicliffe (Lab)]

I thank the noble Lord, Lord Lancaster, for tabling Amendment 15. I have not much more to add than my comments in Committee, so I will not hold up the debate for long. I again thank everyone involved with the Veterans Advisory and Pensions Committees across the country. These committees help to ensure that veterans and their families receive the help and care they need on pensions, allowances and other issues, and act as an important bridge between the veteran community and national government.

Overseas Operations (Service Personnel and Veterans) Bill

Debate between Lord Tunnicliffe and Baroness Smith of Newnham

Consideration of Commons amendments
Wednesday 28th April 2021 Lords Chamber

[Baroness Smith of Newnham (LD) [V]]

My Lords, between the two items of business on defence matters, the Government Chief Whip pointed out that there are three pieces of legislation still going back and forth between your Lordships’ House and the other place. With regard to the Overseas Operations (Service Personnel and Veterans) Bill, I suspect that this will be the last iteration in either Chamber because, as the noble Lord, Lord Robertson, so eloquently pointed out, the Government’s amendments in lieu of this particularly important amendment basically give everything that we have been asking for at various stages.

I will not rehearse the litany of people that the noble Lord, Lord Robertson, said, had either supported the amendment or given advice on it, other than to say, in line with his sentiments, that the omission of genocide, war crimes and crimes against humanity and torture had potentially created a lacuna in the Bill that could have been detrimental to service personnel and veterans. While the stated intention of the Bill, to deal with vexatious claims, was a good one, the original framing of the Bill was less good. With this amendment, we have moved a long way towards making the Bill fit for purpose and we certainly support the amendments that the Government have brought forward at this stage. I thank the noble Lord, Lord Robertson, for his tenacity in bringing the amendment again and again, and I thank the Minister for listening and for the representations that have gone back and forth between the Chambers. At this stage, I welcome this Motion and expect to see the Bill passing relatively soon.

[Lord Tunnicliffe (Lab) [V]]

My Lords, we welcome the Government’s amendments to ensure that serious offences, including war crimes under the jurisdiction of the ICC, are excluded from the presumption against prosecution. These amendments give full effect to the amendments passed on Report in this House, which were signed by noble and gallant Lords who have much wisdom and guidance, both on military matters and human rights.

It has taken a lot of work to get to this point and is a testament to the important work we do. I thank the noble Lord, Lord Robertson, for his leadership on this issue, as a former head of NATO and former Defence Secretary. I also thank colleagues for the collaborative approach that all sides have shown on this issue. I remind the Minister that this mistake was not discovered at the last minute; it was a glaring issue when the Bill was first published, an issue that threatened our international standing, including that of our Armed Forces, and could have led to British service personnel being called in front of the ICC.

The Government’s amendments mean that our international reputation will not be trashed, but it has been damaged, just like it was by the internal market Bill and by the cut in development spending. It leaves me wondering what message this Government want to send to the world, because the world watches what we do. As the noble Lord, Lord Robertson, said, this would have set a terrible precedent, likely to be grabbed on by many of the worst regimes in the world. I close by imploring Ministers, if they really want Britain to be a moral force for good in the world, to not be so reckless. With this Bill, which still has many flaws, we got there in the end on this issue, and for that, I am grateful.

--- Later in debate ---

[Baroness Smith of Newnham (LD) [V]]

The noble Lord, Lord Dannatt, has exhorted us not to play party politics with this issue, and I certainly have no wish to do so. Our duties to our service personnel are crucial. It is absolutely right that the MoD and, by extension, the Government, should be a good employer, and I agree with the noble Lord that that should be a matter of principle.

The issues that the noble Lord has sought to put on the agenda and which we have debated on several occasions now, to ensure legal, pastoral and mental health support for service personnel, are crucial. However, the amendment to the Bill was for a duty of care in very limited circumstance: that for service personnel involved in investigations or litigation arising from overseas operations. That is clearly appropriate within the confines of a narrowly defined Bill. However, the issues are much wider. I am therefore grateful that the noble Lord is not pressing this amendment to a Division this evening, because it would be wise to be able to have a fuller and well-informed debate on a duty of care to be considered in the context of the Armed Forces Bill.

Whether that then takes a statutory form will depend on negotiations and, as the noble Lord suggested, not necessarily party-political discussions, but an understanding of the likely consequences, intended and unintended, of such a duty of care. From these Benches, we absolutely agree with the noble Lord that it is vital that the MoD provides legal, pastoral, and mental health support for service personnel. We must get this issue right, and clearly it is appropriate that we do not divide the House again this evening, but that these issues come back in the next Session and that we keep raising them with the Minister.

[Lord Tunnicliffe (Lab) [V]]

My Lords, again, after another overwhelming majority in this House, the Government have rejected a duty of care standard for personnel and veterans who face investigations and litigations. This legislation is still very far from doing what it says on the tin: protecting British forces personnel serving overseas from vexatious litigation and shoddy investigations. It still fails to incorporate a duty of care for forces personnel who are faced with allegations, investigations, and litigation.

The gap was identified by veterans faced with investigation or litigation consistently saying that they are cut adrift by their chain of command and abandoned entirely by the MoD, with no legal, pastoral, or mental health support. Major Bob Campbell made that point so powerfully, from his own dreadful experience, in evidence to the Public Bill Committee in the other place. As the noble Lord, Lord Dannatt, has said,

“when this new Bill passes into law it will singularly fail to provide the protection that serving and veteran members of the Armed Forces believe it should provide.”—[Official Report, 26/4/21; col. 2109.]

The Government’s arguments have been weak against this amendment. They argued that they already provide this support, yet a gap has been clearly highlighted time and again. They also argued that it could lead to more troops being caught up in litigation—when all the Government need to do to avoid this is to fulfil their responsibilities—and that the duty of care amendment has drafting issues, when the Government have failed to produce their own version, as with the amendment tabled by my noble friend Lord Robertson.

With prorogation fast approaching, I accept that we should not divide on this amendment tonight. I will be entirely happy if the noble Lord, Lord Dannatt, withdraws his amendment for now, but I urge the Minister to think hard about this, as we will return to this issue in the Armed Forces Bill.

Carrier Strike Group Deployment

Debate between Lord Tunnicliffe and Baroness Smith of Newnham

Wednesday 28th April 2021 Lords Chamber

[Lord Tunnicliffe (Lab) [V]]

My Lords, we welcome this first major deployment of the “Queen Elizabeth”. The “Queen Elizabeth” and the “Prince of Wales” are the most powerful surface ships ever constructed in Britain. They will strengthen our maritime forces for decades to come, and this maiden mission for the “Queen Elizabeth” is a great achievement for the Royal Navy and a proud moment for our country. Britain has not had a carrier strike force since 2010, when the defence review scrapped all three of our aircraft carriers. This deployment fills a big gap in Britain’s military capability over the past decade. I hope the Minister can confirm that the “Queen Elizabeth” is fully crewed and that the carrier strike group is fully combat ready.

The successful design and build of our two new aircraft carriers is a tribute to the UK’s shipbuilding industry and our UK steelmakers. Can the Secretary of State confirm how much UK-produced steel will be used in the new Type 26s, Type 31s, Astute, Dreadnought and fleet solid support ships?

The new Defence and Security Industrial Strategy states that the Government will publish an updated shipbuilding strategy which

“will set out how the government intends to create the conditions for success for all parts of the enterprise, from shipyards building warships”.

Can the Minister update the House on when the new strategy will be published and how we will be able to monitor its success? This is a big opportunity to back British industry and jobs. The carrier strike group will sail east with the support of US and Dutch naval warships, and with US F-35 fighters on board. It is good that the HMS “Queen Elizabeth” sails with allies, but it is not good if she can sail only with allies. When, if ever, will there be enough British warships to sail with our own British carriers?

This deployment comes on the back of the integrated review, which rightly said that Russia remains

“the most acute threat to our security”.

Can the Minister confirm that the return of HMS “Queen Elizabeth” to military business will involve patrolling the north Atlantic, the high north and the Mediterranean, our NATO area, where Russia poses the greatest threats to our vital national interests?

[Baroness Smith of Newnham (LD) [V]]

My Lords, like the noble Lord, Lord Tunnicliffe, I welcome the fact that HMS “Queen Elizabeth” is now ready to lead the carrier strike group. Clearly, we are in a new phase of British maritime history. We are obviously in a phase in which the Government are seeking to “go global”, as the Prime Minister has put it on so many occasions, and to do so with a ship that is extraordinary in many ways. The Secretary of State, in his Statement, pointed out that it was truly a step change in capability and that to appreciate the enormity of the vessel, you must stand on its vast deck.

I have not stood on the HMS “Queen Elizabeth” but I did have the opportunity to visit HMS “Prince of Wales” in dock when it was under construction. It is a most incredible ship. However, when the ships were being announced, Russia was very scathing about the size and visibility of the Queen Elizabeth-class aircraft carriers. I am sure that the Minister will be very quick to say that this is nonsense and that the ships are very well defended, but can she give us some indication of the way in which HMS “Queen Elizabeth” is being supported? It is very clear that this carrier strike group, as laid out in the Secretary of State’s Statement, has, as is suggested, a ring of capability. Most of the ships—the destroyers and the anti-submarine frigates—are British vessels, but how far into the future have the Government thought and planned about the support that can be given?

There is a great deal of emphasis on the work with the Dutch and the Americans. To what extent do the Government see this carrier strike group as being a way of having more multilateral deployments, or is HMS “Queen Elizabeth” intended to be part of a solely British force in future? It is obviously important that bilateral training is going on. Can the Minister tell the House a little more about what is envisaged with our European allies? There is a very clear statement that the carrier strike group will demonstrate our enduring commitment to NATO, but a little more about the links with Europe would be very welcome.

The Statement talks about this being sovereign territory. Clearly it is important in terms of many of our international commitments that the Queen Elizabeth class carriers are indeed able to travel to the Pacific. We have recently seen issues of navigability, with the problems in Suez, and we know that shipping is so vital to trade. It is clearly welcome that HMS “Queen Elizabeth” is leading this carrier strike group, but can the Minister tell us a little bit more about its aims? The Secretary of State talked about being a projector of hard and soft power. Many people listening from outside the Chamber—who maybe do not have any defence experience—might wonder how on earth the Queen Elizabeth class carriers can project soft power. I suspect I know the answer but it would be interesting to hear the Government’s perspective on that.

This is an interesting deployment, but it is notable how important the UK says it is that we do not allow countries to breach international law. We note then that the carrier is going close to China but not seeking to be provocative. What signals do the Government wish to send to China with this deployment?

Overseas Operations (Service Personnel and Veterans) Bill

Debate between Lord Tunnicliffe and Baroness Smith of Newnham

Consideration of Commons amendments
Monday 26th April 2021 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, like noble and gallant and noble and learned Lords, I welcome the Minister’s further concession. One of the most welcome things in the final stages of this Bill is that we are gradually beginning to see its most egregious bits removed. We have lost Clause 12; this was most welcome. A very welcome amendment was tabled in the Commons, although it did not go far enough. However, it began to pave the way for the amendment brought again by the noble Lord, Lord Robertson, which the Minister has agreed to accept. This is extremely welcome.

I will not rehearse the arguments made by other noble Lords about the International Criminal Court. I merely want to say that we on these Benches support Amendment A1 in the name of the noble Lord, Lord Robertson. We also look forward to the government amendment in lieu and to seeing that war crimes—as well as genocide, torture and crimes against humanity—are excluded from the presumption against prosecution. This will tidy up the Bill in a most welcome way and, hopefully, will lead us to a piece of legislation that does what we need it to do and what our service personnel and veterans need it to do.

[Lord Tunnicliffe (Lab) [V]]

My Lords, following the overwhelming defeat in this House a couple of weeks ago, the Government’s decision to accept parts of the amendment of the noble Lord, Lord Robertson, to exclude torture, genocide and crimes against humanity from the presumption against prosecution was a welcome step forward. This was testament to the efforts of the noble Lord and the vast coalition of supporters inside and outside this House. I pay tribute to them all today.

We should not forget that these serious offences are illegal and immoral. Under all circumstances, they must be investigated, and if there are grounds for the allegations, there must be prosecutions and punishment. Not including them in Schedule 1 from the beginning was a mistake, and one that could have led to British personnel and veterans being dragged before the ICC, as the ICC’s chief prosecutor herself said. Now, she has written another letter about the current government concessions, saying:

“I remain concerned that many war crimes within the Court’s jurisdiction would still be subject to the envisaged statutory presumption … any gap between the scope of coverage in the excludable offences under the proposed legislation and conduct which might otherwise constitute a crime within the jurisdiction of the Court would risk the persistence of … rendering relevant cases concerning such conduct admissible before the ICC.”

Therefore, it was clear that there remained a serious problem and that the Government were still picking and choosing some crimes that are covered by the Geneva conventions.

We still believe that war crimes must be excluded and strongly support Motion A1 to exclude everything covered by Article 8.2 of the Rome treaty. We are therefore delighted with the Minister’s speech. Essentially, I believe the Government accept the essence of Motion A1, and we will see that in the new amendment from the Commons. I thank the Minister for her efforts and her willingness to talk to many interested parties. We have got to the right place.

It might be useful to lay out what I expect to happen now. As I understand it, Motion A1 will be pressed by the noble Lord, Lord Robertson, and the Government will accept it on the voices. It will then go back to the Commons, and an amendment in lieu will be moved by the Government. It will have substantially the same effect as Motion A1, and it will be approved in the Commons. The new amendment will then be returned to us, where we will unreservedly welcome and approve it. That will be a happy outcome to this complex debate.

I join other Members in celebrating that there have been a variety of speeches looking at this subject in this session, in previous sessions and outside the House. I accept that getting the balance right is a matter of some subtlety, but I believe we have got to the right place, and I look forward to the amendment in lieu coming back to us.

--- Later in debate ---

[Baroness Smith of Newnham (LD)]

My Lords, this amendment from the noble Lord, Lord Dannatt, raises an important issue. Although we did indeed receive the Written Ministerial Statement, it did not go far enough. It is absolutely clear that the Government wish to make commitments to service men and women—the Bill was intended to do so—yet, when we get down to the details and requests to support the Armed Forces covenant and to ensure that the rights of service men and women and veterans are respected, the detail seems to disappear.

This amendment from the noble Lord, Lord Dannatt, perhaps does not go far enough. Such a duty of care should arguably be for all service personnel, whether overseas or at home, and for all activities. Had the noble Lord tabled such an amendment, he would almost certainly have been told it was out of scope of the Bill. Therefore, this is in many ways a modest amendment but a very important one. If the purpose of the Bill, as the Minister has pointed out—and pointed out so many times in the earlier stages of the Bill—is to stop vexatious claims, investigations and so on that are deleterious to the health and well-being of service personnel and veterans, the least the MoD can do is to commit to supporting service personnel and veterans going through the difficulties of investigations and prosecutions.

It is a limited but very important amendment. I am sure the Minister has been listening, because she has done a fantastic job of listening to us over many hours of debate. But if she has been listening, she has not yet yielded any ground whatever. Might she feel able to move at all? Otherwise, I suspect I will follow the noble Lord, Lord Dannatt, through the virtual Lobby to support this amendment.

[Lord Tunnicliffe (Lab) [V]]

My Lords, we remain four-square behind the important amendment from the noble Lord, Lord Dannatt, to provide a duty of care standard for personnel and veterans who face investigations and litigations. It remains unclear why the Government will not accept this limited proposal. If it is simply because they fear being sued for not fulfilling their responsibilities, I simply say to the Minister that all the Government need to do is to make sure their duty is fulfilled in the first place.

It has been suggested that it is unreasonable to single out the Armed Forces for this protection but, as the noble Baroness just pointed out, the covenant shows that the law recognises that being a soldier or serviceman in a combat situation is special and different. In no other job can you require somebody to go into a potentially lethal situation and, in the final analysis, die for their country. This amendment recognises that there needs to be something special when people have worked under conditions that those of us who have never been in that level of tension, responsibility and fear probably cannot understand. We can at least partly understand how difficult it must be. Surely, there should be a reciprocal movement by government, the command and the MoD to support those in such danger when they come under the aegis of the law and have the difficult job of defending themselves. This amendment merely makes sure that they are properly looked after and that anybody making decisions about how they are looked after recognises that, at the end of the day, there is hard legislation.

Since we last debated this amendment in this House, we have had a change of Minister for Defence People and Veterans—the ministerial lead for this legislation. While there are certainly mixed opinions about him, no one can fault Johnny Mercer’s passion or sense of mission. His resignation letter to the Prime Minister lays bare the failings of the Government on veterans’ concerns by saying that

“we continue to say all the right things”

yet

“fail to match that with what we deliver”.

Clearly, there is an issue and we believe that having this duty of care on the face of the Bill will allow the Government to deliver while being reminded how Ministers come and go but statutory protection remains in place. We have heard how troops and their families who have been through the trauma of these long-running investigations have felt cut adrift from the Ministry of Defence. When Major Campbell was asked what support the MoD gave him, he replied simply: “There was none”.

We believe that the Government should think long and hard about this amendment. It is an unlikely coalition of three former Chiefs of Staff of their respective parts of the Armed Forces, politicians from around this Chamber, and many outside, who recognise the value of looking after our troops when they are in difficult times. This has to change and we believe that legislative change is the right way. We therefore support the noble Lord, Lord Dannatt, in asking the Government to think again. If the noble Lord feels that he has had an unsatisfactory response and wishes to divide the House, we will support him.

Commonwealth War Graves Commission: Historical Inequalities Report

Debate between Lord Tunnicliffe and Baroness Smith of Newnham

Monday 26th April 2021 Lords Chamber

[Lord Tunnicliffe (Lab) [V]]

My Lords, I thank the Secretary of State for his apology on behalf of both the Government of the time and the commission. This is an important moment for the commission and the country in coming to terms with past injustices and dedicating ourselves to future action. The report is a credit to the commission of today, but its content is a great discredit to the commission and the Britain of a century ago.

It is estimated that up to 54,000 casualties—predominantly Indian, east African, west African, Egyptian and Somali personnel—were commemorated unequally. As many as 350,000 were not commemorated by name or not commemorated at all. The report found that the failure to memorialise these casualties adequately was rooted in

“the entrenched prejudices, preconceptions and pervasive racism of contemporary imperial attitudes.”

Today, belatedly, we aim to commemorate in full the sacrifice of the many thousands who died for our country in the First World War and have not yet been fully honoured. We will remember them.

In response to the report’s recommendations, I want to ask a few questions. Does the commission have sufficient resources to undertake the next stages of the work and continue the search for these men and women? What role will transparency play in order for today’s commission to be up front about former mistakes? How will Britain’s embassy staff, including our defence attachés, communicate this public apology widely? When can we expect the completion of the investigation into the way in which the commission commemorated the dead from these countries during the Second World War? No apology can atone for the injustice, indignity and suffering set out in this report. While we need an apology today, we need continued action tomorrow.

[Baroness Smith of Newnham (LD)]

My Lords, like the noble Lord, Lord Tunnicliffe, I have a few questions.

This report is clearly very serious and raises issues that need to be explored, perhaps in a wider context. The work of the Commonwealth War Graves Commission in the 2020s is hugely important and valuable. I have visited certain Commonwealth war graves that are exclusively linked to World War II in Europe, so I suspect that the memorialisation I saw was a fairly accurate reflection of what had happened. However, if the intention of the Commonwealth War Graves Commission is to reflect everybody’s contribution equally, regardless of rank, nationality or faith, it is absolutely crucial that the war graves actually do that. In particular, if one visits war graves and assumes that what one is seeing gives a full picture of the loss of life that was incurred during the First or Second World War but we then find that that is not the case, it is a problem not just for those who were lost and their families but for everybody seeking to understand the contribution made, particularly in the First World War, by citizens of the Empire.

There is often a tendency to talk about the United Kingdom, or Britain, winning the war; that is, a tendency to talk about British history as if it is about servicemen—it was essentially men in those days—who came from the United Kingdom or mainland Britain losing their lives. However, many hundreds of thousands from across the Empire and the countries that are now part of the Commonwealth gave their lives. It is crucial that they are remembered.

Like the noble Lord, Lord Tunnicliffe, I welcome the Secretary of State’s apology and this report. However, I also want to know what the Government are planning to do to ensure that the Commonwealth War Graves Commission has the resources to try to rectify some of these inequalities. It goes beyond simply saying, “Have we managed to identify people or are we just going to put up another plaque saying ‘Plus 10,000 others, identities unknown’?” Will the Government help the commission to look for ways of being more creative about how we understand the past, how we acknowledge the gaps in our history and our understanding of history, and how we understand the debt that we owe to so many Commonwealth countries?

The reasons why so many people were not named and not commemorated are particularly shocking. As the noble Lord, Lord Tunnicliffe, pointed out, when you get into the depths of the report, it is not 54,000 or 170,000: it is potentially another 350,000 people. If we did not know who they were—if people had been buried in mass graves, for example—that is one thing, but if there was simply a sense that, somehow, some lives mattered less, that is another. Perhaps that was the view 100 years ago but it absolutely should not be the view now.

We need to look for ways to ensure that history, as it is taught in 2021, can be understood in its global context. Can the Minister tell us what the MoD plans to do? There are 10 recommendations, including going beyond statues and stone memorials to film and other things. Have the Government begun to think about how we can look again at our history and ensure that we pay honour to all those who gave their lives, regardless of their creed, colour, country of origin or rank in society? All those lives—all the fallen—matter equally.

Overseas Operations (Service Personnel and Veterans) Bill

Debate between Lord Tunnicliffe and Baroness Smith of Newnham

Report stage
Tuesday 13th April 2021 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, this amendment has had no opposition. I thought very briefly that the noble and gallant Lord, Lord Stirrup, was perhaps going to speak against it because he raised concerns about the nature of some aspects of what has been said. The Minister has heard nobody from her own Benches, or rebel Labour, Liberal Democrat or Cross-Bench Peers, speaking against the amendment. Nobody has given any reason why this amendment should not be supported. That has been true at virtually every stage. The only noble Lords who perhaps could have given the Minister some succour at an earlier stage, at Second Reading, were the noble Lord, Lord Lancaster, and, in particular, the noble Lord, Lord King of Bridgwater, who listened very carefully to what the Minister said. However, even the noble Lord, Lord King, said that maybe the Government needed to think again about torture and genocide.

If there is a presumption that sexual violence and exploitation should be left out of Part 1 of the Bill, what possible justification can the Government have to leave out genocide, torture, war crimes and crimes against humanity? As the noble Lord, Lord Dubs, said, the Minister, at previous stages of the Bill but also in her written response to the Delegated Powers and Regulatory Reform Committee, has said that the Government would never ask our Armed Forces to perpetrate crimes of sexual violence or sexual exploitation. Good—that is obviously what we want to hear. However, the Minister does not say the same thing about war crimes and torture. She merely says that the Government take them very seriously. While, clearly, the Bill does not make it impossible that prosecutions could be brought against allegations of torture, genocide, war crimes and crimes against humanity, surely the logic of the Minister’s response to the Delegated Powers and Regulatory Reform Committee is that the Government, if not endorsing or requesting that people perpetrate torture and war crimes, somehow do not view them in the same way.

Occasionally on these Benches we have very different views from the Minister. We know that we are never going to change the Minister’s mind; nevertheless, we listen and we understand where the Government are coming from. Perhaps the Government have a point of principle. On this occasion, it is almost incomprehensible what the Government’s point of principle can be. If somebody has committed torture or a war crime, that needs to be investigated and prosecuted. The fact that the Government merely take it very seriously simply is not good enough. This amendment rights a complete defect in the Bill. We support the amendment and I believe that many noble Lords from all sides of the Chamber support it.

I ask whether the Minister did go away and think carefully after Committee. As several noble Lords have said, we respect the Minister but we have not yet heard any sense of reflection from the Government. We have not had a scintilla of a change. We have heard nothing that makes anybody feel that the Government are likely to change their mind. If the Government cannot find a way of changing their mind, it is essential that this House asks the other place to think again.

[Lord Tunnicliffe (Lab) [V]]

My Lords, there is almost universal support in this House for ensuring that torture, genocide, war crimes and crimes against humanity are excluded from the presumption. It is clear what the ICC thinks: if we do not do so, as has been quoted many times, the UK would

“forfeit what it has described as its leading role, by conditioning its duty to investigate and prosecute serious violations of international humanitarian law, crimes against humanity and genocide.”

That is why there is such strong support for Amendment 3 and, importantly, for its approach to protect these offences so that they cannot be removed by statutory instrument at a later date. I hope that the Minister has listened closely to the powerful debate and the broad coalition that spans military figures and human rights experts, and will promise that government amendments will come forward at Third Reading. Otherwise, we support my noble friend Lord Robertson in his important amendment and urge him to divide the House.

--- Later in debate ---

[Baroness Smith of Newnham (LD)]

My Lords, we have heard some important speeches making it clear why this amendment is so important. However, I confess that, having listened to the noble Lord, Lord Faulks, and the noble and gallant Lord, Lord Houghton of Richmond, I almost got to the point that my noble friend Lord Thomas of Gresford got to on the previous group: ought we to be killing the Bill, or asking the Government to kill it? Although I did not think at the previous stage that this amendment was necessarily a probing amendment, the more I looked at Amendment 14, the more it looked like the Government needed to be thinking about these issues more generally, not just in the context of overseas operations.

The Liberal Democrats will be supporting the amendment, but I think it raises issues which, if the Government have thought about them, have not yet been made clear to your Lordships’ House and perhaps to the other place. As the noble and gallant Lord, Lord Houghton, pointed out, since the Bill was introduced in the other place, we have had the integrated review, the defence White Paper and the defence industrial strategy. There seems to be a whole swathe of legislation coming forward. We also, I assume at some point, are going to have legislation dealing with historic issues associated with Northern Ireland, and surely the duty of care links to the issues of Northern Ireland.

I did not speak on the second group of amendments, but it was interesting to hear the very different approaches to saying that we need to think about Northern Ireland again. They did not fit into a Bill on overseas operations, quite clearly, yet some of the issues, and that sense of repeated investigations, apply as least as much to Northern Ireland as to overseas operations. Are the Government proposing at some point to bring these themes together? Are they going to be in the Armed Forces Bill 2021? Are we going to see questions of duty of care that ought to be embedded not just in this Bill but more broadly? If not, could the Minister take this away and talk to her colleagues in the MoD Main Building and in the other place?

The Armed Forces Bill is coming up this year. As we have heard, issues about hybrid warfare and artificial intelligence need to be thought about, and potentially thought about differently, but this Bill does not really get into them. I fully understand that the Minister might say that this is intended to be a very small and discrete Bill. That may be so, but if those matters are not being considered in this Bill, are they being considered elsewhere? If not, could she undertake to go away and think about them?

[Lord Tunnicliffe (Lab) [V]]

My Lords, we fully support Amendment 14.

By my count, the noble Lord, Lord Dannatt, and the noble and gallant Lords, Lord Boyce and Lord Stirrup, have about 120 years of service in the Armed Forces between them. They have all argued passionately for a duty of care standard to be in the Bill. As a former acting pilot officer, I have to say that I am very proud of the stance they have taken. It shows that the former leadership of the Armed Forces is capable of being both compassionate and wise. When colleagues of such experience speak, we should listen. I am unsure why the Government remain so resistant to this. We stand foursquare behind our troops and a duty of care would ensure that our Government did so too. We will support the amendment if it is pushed to a vote.

As Amendment 14 refers to legal support, I want to seek some clarity on legal aid. I thank the Minister for writing to me on this issue, but the position stated in the letter is a little different from the position of the Minister in the Commons. The letter says:

“We cannot categorically say that Service personnel will receive legal aid”


but Johnny Mercer said:

“There is … full legal support, paid for by the MOD, for everybody swept up in these investigations.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 22/10/20; col. 351.]


Can the Minister confirm that? The letter also says that cuts which were applied to the national legal aid system were also applied to the Armed Forces legal aid scheme as they mirror each other, but the Armed Forces Minister said that the Armed Forces system is “bespoke”. Can the Minister confirm how much money for legal aid has been cut in the last decade from the Armed Forces legal aid scheme? This confusion between Ministers demonstrates exactly why we need protection in the Bill.

Ministers say they have made progress, but ultimately Ministers move on. Let us put a duty of care in the Bill so that personnel have full confidence that Ministers are serious about helping them through difficult times. I look forward to the noble Lord, Lord Dannatt, seeking the decision of the House. We will undoubtedly fully support the amendment.

Defence and Security Industrial Strategy

Debate between Lord Tunnicliffe and Baroness Smith of Newnham

Wednesday 24th March 2021 Lords Chamber

[Lord Tunnicliffe (Lab) [V]]

My Lords, the publication of this strategy is welcome, especially since companies across all sectors have had an extremely tough year. The Government have noted that businesses have cut back on research and development, training and other investments in future capacity and productivity, due to Covid-19. However, the impact of the pandemic on the defence and security sectors is not explored in detail in the strategy. How many jobs have been lost? How many people remain on furlough? How much government support has been awarded to these sectors?

Labour welcomes the publication of this strategy. Indeed, the very use of “strategy” is a victory in itself. We welcome the confirmation that global competition by default, begun by the White Paper in 2012, has gone. It is high time that we put an end to a British Government being just as happy buying abroad as building in Britain. We also welcome the change in naval procurement policy and the commitment to invest £6.6 billion in defence research and development over the next four years. We welcome the Prime Minister’s extra £16.5 billion in capital funding after the last decade of decline, but 30,000 jobs in the defence industry have gone since 2010, and nearly £420 million in real terms has been cut from defence R&D. In many UK regions, the money promised today will still be well short of what has been taken away over the last decade.

The strategy

“aims to establish a more productive and strategic relationship between government and the defence and security industries.”

This is welcome, since the weapons of the future are just as likely to be developed in the private sector as in an MoD lab. We now need to ensure that this is the start of a new era, with the aim not only of making and maintaining in Britain but of developing the technologies and companies that we will need in 10 years’ time to procure in Britain. Innovation and growth are driven by our precious SMEs, and this is certainly true in these sectors. The defence supply chain is made up of highly specialised SMEs and the strategy even states that SMEs make up 95% of the security sector. We must ensure that these businesses are supported as well as protected.

It is welcome to see that the SME spend is going in the right direction, but it is not fast enough. The current MoD SME action plan states that the Ministry of Defence has a target of 25% of its procurement spend going to SMEs by 2022, but that target is not mentioned in the new strategy. Can the Minister confirm whether the target has been dropped?

The strategy says the Government will be publishing a fresh SME action plan to set out how the department will maximise opportunities for SMEs to do business with the MoD. The current SME action plan is due to last until the end of next year. Will the refurbished plan start after that?

The strategy also alludes to other new strategies, so it would be helpful for the Minister to give more details about when the new defence, science and technology collaboration and engagement strategy and the AI strategy will be published. How will the AI strategy seek to catch up with the long-standing AI investments in China and the US?

The National Security and Investment Bill is also currently progressing through this House, and it is interesting to see more detail about how it relates to the MoD, which was probed in Committee. The strategy reveals that a separate MoD directorate will be established, focused on broader economic security and supporting the implementation of the National Security and Investment Bill. How will that new directorate work with the investment and security unit in BEIS? Will the new directorate help businesses with the processes of mandatory and voluntary notifications?

Today the Government are asking industry to do more with more. Ministers have to get this right. The next step is to focus clearly on delivery. The document contains a wealth of detail, most of which is about the new initiative and changes in direction. Will the Minister commit to reporting to the House on progress in 12 months’ time?

[Baroness Smith of Newnham (LD) [V]]

My Lords, another day, another defence Statement repeat, and an opportunity for us to probe the Government’s thinking about wider issues of the integrated review in terms of security, defence and, on this occasion, the defence industrial base.

Like the Labour Front Bench, we broadly welcome this paper. However, I would be a bit more cautious than the noble Lord, Lord Tunnicliffe, and I have a few more questions that might sound a little more concerned about the Government’s thinking in terms of the future. As the foreword to the report states

“our forces require equipment which is state of the art. Just as we are refreshing what we require of our Armed Forces, we are reviewing the equipment they will need to face tomorrow’s threats and setting out a path for innovation for the future.”

That is absolutely right. However, should we be thinking about tomorrow or more about the day after tomorrow? I ask that in particular because yesterday’s Statement in the Commons reaffirmed the Government’s commitment to spending another £85 billion over the next four years on equipment and support for our Armed Forces. That spending is clearly very welcome, but it essentially takes us to the end of this Parliament. What is the longer-term thinking? Research and development is clearly important, but there is a danger that the Government are still thinking in parliamentary cycles and not necessarily about the wider defence procurement situation, which is very different and runs into decades, not merely two or three years. What thinking is going into longer-term planning? The Statement that has been repeated today gives some important insights, but it gives us tomorrow, not the day after tomorrow.

Unlike the noble Lord, Lord Tunnicliffe, I have a slight concern that the new approach signals a shift away from global competition by default. It is right that the UK is resilient, that it has a secure industrial base, that we are able to engage in research and development and that we should be able to have first-class building of ships and other equipment, as stated, right across the United Kingdom. The defence industrial base is clearly very important.

The Statement talks about exports. If the UK is saying that it is no longer going for global competition by default, what work are Her Majesty’s Government doing to persuade our partners and allies, and others who might consider purchasing from the UK, that they should not also pursue a domestically focused agenda? While it is clearly important that we develop things domestically, that export market is flagged up, so there are some questions that may need further exploration.

I ask the Minister to give us a bit more information about the proposals on procurement. Over the past decades—this is not a problem of any individual Government; it is systematic—there have been issues about major capital projects being prone to overspend and overrun, with knock-on effects on the defence budget. How will the changes to procurement affect this? Will we not have so many bespoke projects? How does that fit with the discussions that the Government are having with our defence industry? Can the Minister reassure us that the proposals put forward in the Statement and the strategy document are led by defence needs, not defence industry priorities?

Integrated Review: Defence Command Paper

Debate between Lord Tunnicliffe and Baroness Smith of Newnham

Tuesday 23rd March 2021 Lords Chamber

[Lord Tunnicliffe (Lab) [V]]

My Lords, as we mark one year since lockdown began, I start by thanking the Armed Forces for their help during the pandemic. They have been essential to our response, from building hospitals to assisting with the vaccine programme, and we owe them a great deal.

In the last defence review, the Government identified the risk posed by pandemics. That document claimed that the Government had

“detailed, robust and comprehensive plans in place”.

But, after one of the world’s worst death tolls and worst recessions, clearly the Government were not prepared. Covid shows that resilience cannot be done on the cheap. Full-spectrum society resilience will require planning, training, and exercising that must be led by the Government and involve the private sector, local agencies and the public, so the reference to,

“Building resilience at home and overseas”


in the Command Paper is welcome, but it is disappointing to see how little there is on lessons learned from Covid. Can the Minister tell the House that the comprehensive national resilience strategy will be published, at the latest, before the autumn, when a further wave is a real possibility?

Turning to the rest of the integrated review and Command Paper, we want them to succeed, to keep our citizens safe and to secure Britain as a moral force for good in the world, but we cannot escape how the two previous reviews, as well as recent actions of the Government, have weakened our foundations. Some £8 billion cut from the defence budget, 45,000 personnel cut from the Armed Forces, £5 billion cut from international development, and this review is set to repeat many of the same mistakes, with more reductions in the strength of our forces and crucial military capabilities. How will the loss of 10,000 personnel affect our relationship with our key allies and NATO? In total, how many jobs in the defence industry will be lost as a result of axing Warrior vehicles and Challenger tanks? I fear that the “era of retreat”, as the PM called it, will not end but be extended.

The Secretary of State says that he wants to

“match genuine money to credible ambitions”,

but it is not clear from the paper how that will be done. Ministers like to talk about the rise in capital funding, but not the real cut in revenue funding over the next four years. Can the Minister guarantee that core programmes will be fully funded? With a black hole of £17 billion in current programmes, how much of the extra money will be swallowed by this? What new processes have been installed to allow the MoD to learn the lessons of previous overspending?

The review also marks a new shift in the UK approach to nuclear. Labour’s commitment to the renewal of our deterrent is non-negotiable, alongside our multilateral commitment to nuclear disarmament and greater arms control. But the reversal of 30 years of all-party non-proliferation policy for the UK is a serious decision, and this Command Paper does not clearly explain why it is necessary. What is the strategic thinking behind lifting the cap? How are we going to use our P5 status to press for new generations of arms-control treaties? As the Command Paper rightly identifies, threats are proliferating and becoming increasingly complex and continuous, so we should recognise the new domains of cyber, AI and space—but new technologies take years to come on stream. China has invested $31 billion in AI since 2016 and the US is already spending more than $10 billion a year on AI. Will the Government’s investment allow us to catch up?

It is also right that we recognise climate change as a “threat multiplier” that will

“drive instability, migration, desertification, competition for natural resources and conflict.”

Yet, despite it being launched over a year ago, we are still waiting for the MoD’s sustainability and climate change strategy. When will this be published?

There are clear inconsistencies at the heart of the review. The Command Paper says that Russia

“continues to pose the greatest nuclear, conventional, military and sub-threshold threat to European security.”

But the Government have still not fully implemented any of the Intelligence and Security Committee’s Russia report’s 21 recommendations. This has left a big gap in our defences which must be filled.

The ambition has been laid out, but it is the actions of the Government that will keep the country safe and allow Britain to be a moral force for good in the world. These actions need to be taken in response to national security threats in co-ordination with allies in order to grow national resilience and jobs back home, and in line with our international commitments. We will continue to hold government actions to these standards in the years ahead.

The Statement and Command Paper are full of fine words—defence Statements always are—but the question is whether there is substance behind the words. To answer that question, we need a full day’s debate to mobilise the wisdom and experience of our Back-Benchers. Accordingly, I have made requests through the usual channels and I hope that the Minister will be able to support me in that request.

[Baroness Smith of Newnham (LD)]

My Lords, from these Benches I echo many of the words of the noble Lord, Lord Tunnicliffe, and there are certain questions that I will therefore not reiterate. However, one area that I would like to reinforce is our gratitude to our Armed Forces. The second point that I shall reiterate to the Minister and, in particular, to the Government Chief Whip and the usual channels is that we need a serious debate on defence, covering at least a day. At Second Reading of the Overseas Operations (Service Personnel and Veterans) Bill, I believe there were 67 speakers. Many Members of your Lordships’ House have expertise and would be able to contribute very effectively to serious debate and scrutiny of the integrated review and the defence Command Paper. Two Statements, one last week on the integrated review and one today on the defence Command Paper, will only touch the surface.

The integrated review was supposed to bring together security, defence, foreign policy and development. However, for defence, we had a Statement on funding at, I think the end of the last calendar year; today, we have the Command Paper; tomorrow, an industrial policy paper is coming forward; and the Armed Forces Bill is coming, as is, according to the Command Paper, a defence accommodation strategy. All are clearly welcome, but it would be even more welcome if we had a real sense and belief that the review that came forward last week was truly integrated, truly strategic and genuinely provided a review of all our international and security challenges, capabilities and commitments.

The Statement, which the Minister has not had to repeat, raises a set of questions about the future of our defence. The Secretary of State started with his time in the Army and referred to a whole series of reviews over the past 30 years. It is clear that the increase in defence expenditure announced last year is important but, as the noble Lord, Lord Tunnicliffe, pointed out, there are questions about value for money. What work have the Government put in to ensure that defence procurement will provide value for money? Will we be able to ensure that the long-term capital expenditure is scrutinised and delivers for the country?

I want also to ask about our co-operation with partners and allies, which is touched on throughout the paper. The commitment to working within NATO is absolutely clear, but there is talk of a tilt towards the Indo-Pacific. What conversations have Her Majesty’s Government had with India? Does it have the same views as the Foreign Secretary or the Defence Secretary about the importance of co-operation, or are we trying to catch up and persuade India that it is important to work with the United Kingdom?

The threats from Russia and China are made explicit in this Command Paper, yet there also seems to be an attempt to work with China in terms of trade. Can the Minister tell us what is more important—trade or defending ourselves against China? Is there a real strategy here?

I turn finally to the nuclear deterrent. There is a suggestion on page 7 that our adversaries are breaching the terms of international agreements. What about breaches made by our allies, and indeed, what is the danger if the United Kingdom threatens to breach them? Like the noble Lord, Lord Tunnicliffe, and the Labour Benches, we are committed to multilateral disarmament. While we are committed to the deterrent, we are also committed to multilateralism. Does the proposal to increase the number of warheads not fly in the face of the United Kingdom’s multi-lateral commitments? Should we not think again in that regard?

Overseas Operations (Service Personnel and Veterans) Bill

Debate between Lord Tunnicliffe and Baroness Smith of Newnham

Committee stage
Thursday 11th March 2021 Lords Chamber

[Baroness Smith of Newnham (LD) [V]]

My Lords, like other noble Lords—and noble and gallant Lords—across the Chamber, I welcome the amendment, even if, like the noble Lord, Lord Faulks, I regret that it is necessary. As the noble and gallant Lord, Lord Stirrup, pointed out, it is in many ways necessary to try to deliver what the Minister said the Bill was intended to do, which is to demonstrate to all our service men and women, and veterans, that the MoD and the Government have their backs. The amendment seems to be delivering on the stated aims of the Bill in a way that much of the content of the Bill does not quite seem to do.

Perhaps I have misread the amendment and the noble Lord, Lord Faulks, has read it perfectly, but my reading of it is a little different from his. The first point is:

“The Secretary of State must establish a duty of care standard”.


It does not say, “The only purpose of this amendment is to write a report”; the report comes later. The really crucial thing is that the Secretary of State is to establish the “duty of care”; the annual reports are then supposed to look at certain things, but it is the duty of care itself that matters.

So the amendment does not say, “There’s got to be a report every year”—which, I agree, might look a bit like window-dressing. This really gives the opportunity for the Secretary of State—hopefully with advice from the leading members of the military and taking into consideration the evidence from the many organisations that have been lobbying the Government and Parliament over this Bill—to begin to ensure that we have an appropriate duty of care and that support is given to service men and women under investigation. As my noble friend Lord Burnett said in his powerful speech, there is a whole set of issues that might affect people acting overseas on operations that would not necessarily be the case when people are in normal circumstances.

So this is an important amendment. I very much hope that the Minister will be able, for once, to consider supporting an amendment. If she cannot, I hope that she can look for ways of delivering in the Bill the sort of support for our service men and women that is the intention of this amendment.

[Lord Tunnicliffe (Lab) [V]]

My Lords, we stand four-square behind our troops and, therefore, four-square behind Amendment 31. We want to work with government and colleagues from across the House to get this legislation right. Our country owes a huge debt to our service personnel, yet many have not got the pastoral, mental and well-being support that they require when it is most needed.

Troops and their families who have been through the trauma of these long-running investigations have too often felt cut adrift from their chain of command and the Ministry of Defence. As the noble Lord, Lord Dannatt, said, this gap was clearly identified by multiple people in Committee in the other place, but it has not been identified in the Bill.

When asked if the MoD had offered any support when he was facing eight criminal charges, Major Campbell said: “No, there was none”. General Sir Nick Parker said that

“one of the key things that we have to do is to produce mechanisms that establish a really effective duty of care for those who are placed under the spotlight by malicious claims.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 96.]

He stated that, as drafted, the Bill does not do this.

When asked if the MoD does enough to provide a duty of care to those service personnel who go through investigations and litigations, BAFF executive council member Douglas Young said:

“In our opinion, the answer is no ... we are simply appalled by the experiences of some people who have absolutely been through the wringer for many years.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 6/10/20; col. 5.]


Lieutenant Colonel Chris Parker said that there was certainly a need for

“a broad duty of care with some resourcing for the impact on families and the individuals themselves … It is something that the MoD would have to bring in.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 108.]

The MoD has let down too many personnel with a lack of pastoral, mental health and legal support when they face investigations and pursue rightful compensation. For every member of the Armed Forces who does not receive the proper support and advice during an investigation or litigation, it is not only sad but a failure of the MoD’s responsibility to its employees. We cannot deny that the MoD has lost trust among our brave service personnel, and a statutory duty of care, with regular reporting to Parliament, is a key step in rebuilding that trust. Only then will personnel have the confidence that the MoD will be on their side and support them through the difficulties and stress of an investigation or litigation.

We owe it to our excellent Armed Forces to do better. The MoD owes it to them to provide a statutory duty of care standard for legal, pastoral and mental health support, and that is why we strongly support this amendment.

--- Later in debate ---

[Baroness Smith of Newnham (LD) [V]]

My Lords, both these amendments are important but quite different. They come together as a final hurrah for the Committee stage of the Bill. Amendment 34, in the names of the noble and gallant Lords, Lord Craig of Radley and Lord Boyce, makes perfect sense as a tidying-up measure. As I understand it, we are expecting the next Armed Forces Bill after Prorogation, which would become the 2021 Armed Forces Act. I wonder whether the Minister could indicate whether that would be the time to bring together all relevant legislation on the Armed Forces. Assuming that the Bill that we are debating at the moment is passed—I hope, in a seriously amended form—it may be appropriate to put it within the purview of the 2021 Armed Forces Act.

Beyond that, I had initially thought that the British Overseas Territories, the Isle of Man and other places seemed slightly tangential. The noble Lord, Lord Lancaster, made it absolutely clear why that amendment is so important. On Monday evening, I was speaking to officer cadets at Sandhurst about the challenges of leadership in civilian life. I cited, from my time in local government, the dangers of being a new executive officeholder—equivalent to being a Minister—listening to what officials say. Saying “We consider this situation very unlikely to arise” is not something that a Minister or elected politician should necessarily listen to. I hope that the Minister listens to the noble Lord, Lord Lancaster, and considers this amendment carefully.

As the noble Baroness, Lady Chakrabarti, pointed out, this appears to be the last group of amendments in Committee. Like her, I thank the Minister, her noble and learned colleague on the Front Bench and other noble Lords for participating. I look forward to the next stages of the Bill.

[Lord Tunnicliffe (Lab) [V]]

My Lords, I do not know whether it was a sense of exhaustion but, until the noble and gallant Lord, Lord Craig, and the noble Lord, Lord Lancaster, set out what their amendments meant, I did not fully understand them. I understand them a little better now, and we will give them consideration. The noble Baroness, Lady Smith of Newnham, said that they may find a better home in the 2021 Armed Forces Act. The Minister may give an indication of whether that is sensible.

As this is the last group, I will use it to ask this of the Minister. She has committed to writing a positive library of letters; it would help if she could copy them electronically to all noble Lords who have taken part in Committee so that we can all share her wisdom. With that, I thank her and her colleagues, and all noble Lords, for making this a civilised and thoughtful debate over the last two days.

Armed Forces Act (Continuation) Order 2020

Debate between Lord Tunnicliffe and Baroness Smith of Newnham

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?

Armed Forces Act (Continuation) Order 2019

Debate between Lord Tunnicliffe and Baroness Smith of Newnham

Wednesday 20th February 2019 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, unlike my noble friend Lord Thomas of Gresford, I have not been involved in any of the Armed Forces Bills going back to 2006 or before, nor indeed to the equivalent statutory instrument last year. However, last year the equivalent debate was in Grand Committee in the Moses Room, where I listened to my noble friend Lord Campbell speaking on behalf of the Liberal Democrats.

When I went yesterday to get the draft statutory instrument, the Printed Paper Office was a little overtasked. In the end, I was given six copies of a draft that said “2018”. I thought that did not seem quite right, but I read the draft. I went in this morning to see whether that was really what I was meant to be reading, and got the draft defence statutory instrument for 2019. The phrasing of the two statutory instruments is almost equivalent, but two paragraphs have been added to the Explanatory Memorandum. There is paragraph 8, to which the noble Lord, Foulkes, has already referred, and paragraph 9, which says, under the heading “Consolidation”:

“This instrument does not amend any other legislation so no consolidation is needed”.


However, paragraph 8 on the EU, headed “(Withdrawal) Act/Withdrawal of the United Kingdom from the European Union”, says that it does not relate to this—and the noble Lord, Lord Foulkes, said “Hallelujah”. If one looks very closely at the Explanatory Memorandum, the footer indicates that it is from DExEU. I assume that this is simply because the Civil Service is so overwhelmed by statutory instruments at the moment that the assumption is that nothing can come as a statutory instrument that does not relate to Brexit. It says “DExEU/EM/8-2018.2”. I assume that DExEU is not really involved with this statutory instrument, and that it is the normal MoD statutory instrument and Explanatory Memorandum.

We have already heard that whether the Armed Forces, starting with the Army, can go forward requires the consent of Parliament. This year, of all years, it is essential that Parliament gives its consent to ensuring that the Armed Forces can move forward. If we are to believe some of the preparations for Brexit and a no-deal Brexit, we are led to understand that Her Majesty’s Armed Forces might be brought into some sort of action to ensure stability, not just of the realm externally, but within the United Kingdom.

Since this order appears to be being used a bit like a Christmas tree Bill, to enable noble Lords to talk about various defence issues, clearly it is important to stress, alongside the noble Lord, Lord Judd, our support for and gratitude to the Armed Forces for everything they do in the service of our country. On this occasion, however, I should also like to ask the Minister whether the Armed Forces are being prepared for action in the event of a no-deal Brexit, and what work Her Majesty’s Government are doing to ensure that the Armed Forces have the resources that they require.

The Minister has told us that the statutory instrument and these rules allow for command, disciple and justice, all of which are important, but it is also important to think about the well-being of our Armed Forces, and ensure that they are able to do their job as effectively and efficiently as possible. If we are thinking ahead to the need in due course for another Armed Forces Bill in 2021, what work is the MoD doing to think about the future, and is there some way in which your Lordships’ House can assist the Minister and the MoD to ensure that the Armed Forces have all the resources they require?

[Lord Tunnicliffe (Lab)]

My Lords, I thank the Minister for introducing this instrument. The Labour Party supports Her Majesty’s Armed Forces, and I am sure that support goes across the whole House. My boss in the other place, Nia Griffith, used this order to comprehensively review the present position of the Armed Forces. I will restrict myself to quoting two paragraphs of her speech, the first on,

“forces numbers and the alarming downward trend across each of the services. When Labour left office in 2010, we had an Army of 102,000 … an RAF of 40,000 and a Royal Navy of 35,000. Now they are all substantially smaller. The Army and RAF have been cut by 25% each and the Navy is down by nearly 20%”.

The second paragraph states:

“The steady decline in service morale is a significant worry. The proportion of Army personnel reporting high morale in 2010 was 58% for both officers and … other ranks, but that fell to 46% for officers and … 36% for other ranks in 2018”.—[Official Report, Commons, 18/2/19; cols. 1229-30.]


I have never had the privilege to serve full-time in Her Majesty’s Armed Forces, but I have been involved with them over the years. I was taught that effective armed forces come from good equipment, good training and good morale, and the drop in morale since 2010 is sapping away the capability of our Armed Forces. I hope the Minister will agree and give some indication of how this will be addressed in the future.

I have just two specific questions about the law.

Armed Forces (Terms of Service) (Amendments Relating to Flexible Working) Regulations 2018

Debate between Lord Tunnicliffe and Baroness Smith of Newnham

Wednesday 10th October 2018 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, it seems a long time ago that we debated the Armed Forces (Flexible Working) Act, partly because it was introduced into your Lordships’ House before it went to the House of Commons. I went back to my files and noted that I had talked about the devils in the detail, although I did not come up with that idea first; several Members of your Lordships’ House had talked about that. In particular, the noble and gallant Lord, Lord Walker of Aldringham, said that,

“the devil is going to be in the detail of the regulations drawn up to operate the system”.—[Official Report, 11/7/17; col. 1187.]

It would be fair to say that while on balance your Lordships’ House was supportive of the ambitions of flexible working, some concerns were articulated across the House—I suspect even by the noble Earl, Lord Attlee. In particular, the noble Lord, Lord Dannatt, raised one of the concerns that has just been raised by the noble and gallant Lord, Lord Craig of Radley, about whether flexible working would be imposed rather than chosen voluntarily. While it may appear this evening to the noble Earl, Lord Attlee, that somehow this is a simple Act and that these regulations look straightforward, the reason for wanting them to come through the affirmative procedure was precisely because there were concerns that the devil could be in the detail. There were slight suspicions that the regulations would lead to a situation where flexible working could be required of people in circumstances where perhaps the Regular Forces seem overmanned—that might seem unlikely, but that was the sort of concern raised by the noble Lord, Lord Dannatt—which was why we thought this needed to come through the affirmative procedure.

The regulations as we see them look straightforward, although I am delighted to see that the Explanatory Memorandum is rather clearer and in ordinary English, for those of us who are not used to reading legislation regularly. I hope that the advice that will be given to service men and women will be even clearer than what we see in the Explanatory Memorandum. The rules look slightly opaque, and to put them into some sort of citizen’s English—even if it includes lots of three-letter acronyms that are much more familiar to the RAF or the Royal Navy than perhaps to the rest of us—would ensure that the information given to service men and women will make them want to look at using these provisions, and would be welcome.

The regulations look straightforward and very much in line with what the Minister outlined to us at various stages during the passage of the flexible working Act. That is perhaps not surprising, because, as the noble Earl, Lord Attlee, said, essentially we expect the Minister to listen and to respond. But we do not always know whether Secretaries of State or Chancellors of the Exchequer will manage to do likewise. While it is important that these regulations are discussed this evening, I do not see a reason to do anything other than affirm their progress.

[Lord Tunnicliffe (Lab)]

My Lords, we will, of course, support these regulations. I fear the noble Earl, Lord Attlee, has in many ways the wrong challenge. The requirement that these be subject to an affirmative order has an effect that one comes across again and again in complex organisations: the knowledge that something will be scrutinised at the highest level produces very high-quality work. One of the key factors noticeable in these regulations—I take them together with the notes for the service personnel who will use them—is that virtually every question left unanswered in the primary legislation has been answered in them. Therefore, I welcome and support them. I have only one question related directly to the regulations, which is about the reporting procedure: will the frequency of their use be reported in the public domain, and if so, where?

The problem of being a Minister in your Lordships’ House is that nobody is here to enforce the rules. Accordingly, I looked at the Explanatory Memorandum to see if I could find something to say. I noted that one reason for these rules was to improve recruitment and retention in the Armed Forces. Essentially, it was an important piece of morale-boosting, which this Government certainly need. Total outflow from the Armed Forces has exceeded intake every year since 2011. I looked into this a little bit further; the way to find out what morale is like in the Armed Forces is to go to the regular Armed Forces continuous attitude survey. It is a brilliant document in terms of information—and a deeply depressing one for anybody who reads it. I will quote one or two statistics from it: satisfaction with pay has gone from 52% in 2010 to 31% now; satisfaction with service life in general has decreased—among both officers and other ranks—from its peak of 61% in 2009 to 41% now.

Dissatisfaction has been particularly acute in the Royal Marines. Members of this House have fought a little battle to keep ships retained for the use of the Royal Marines, yet we find that service morale among officers—that is, ratings for high morale—has gone from 64% two years ago to 23%; for other ranks, it has gone from 32% two years ago to a staggeringly low 9% now. I would defend the right of the Minister not to respond to this, but I hope he will rise to the occasion and give us some indication of how this crisis is being addressed. I put it to him that one of the reasons is leadership—I am not talking about people in uniform; I am talking about the politicians. SDSR 2015, which was published on 23 November 2015, promised annual reviews. That was a good thing, as I think it has emerged that the SDSR was underfunded.

The Government met their commitment and, roughly a year after that publication, they produced an annual review—the first annual report. The second annual report should have been published on 23 November 2017 but it was overtaken by, of all things, a review by the Cabinet Office. There must have been some squabbling because that metamorphosed into something called the Modernising Defence Programme. We were told that its main points would be published by the time of the NATO summit of 2018, and indeed we got a letter from the noble Earl. As ever, it read brilliantly the first time—these letters are always well drafted—but the second time you read it through you realised that it said absolutely nothing. There was not a single concrete piece of action in it.

If the noble Earl wants to rise to the occasion, I hope he will say when we will see real progress on the review and when the Armed Forces will recognise that they have a serious morale problem, with a programme to address it directly. Although I have served in the VR, I am not a military man in the sense that I have not served full time or been presented with any hostile forces, but I have talked to a lot of people who have. My summary of what they have said to me is: if you want effective forces, you have to have leadership, equipment, training and morale. These are not additives; they are multiplicities, and if any of them is at a low level, that affects all of them and you have wasted your money. We are not at all happy with the equipment area or the training area, and now we are not at all happy with the morale area, and I hope that the Minister will be generous enough to provide some answers.

Afghanistan Update

Debate between Lord Tunnicliffe and Baroness Smith of Newnham

Wednesday 11th July 2018 Lords Chamber

[Lord Tunnicliffe (Lab)]

My Lords, I thank the Minister for repeating the Statement, and join him in paying tribute to those who have served in Afghanistan. We remember in particular the 456 service personnel who died and those who have suffered life-changing injuries.

I too believe that Afghanistan is a better place as a result of our efforts. We have achieved this through co-operation with our NATO allies. Nevertheless, a further commitment of 440 personnel is significant, and it is our duty to probe this. Noble Lords will understand that 440 on the ground will involve many times that number, as personnel are trained, deployed and rested.

It is appropriate to pause at this point. We will be sending people into harm’s way, and we civilians do not really understand what that is like. This place is enriched by the number of people who have done that; we even have one who has been in harm’s way. Afghanistan is a dangerous place, and NATO personnel were killed in the early days of these training missions. I wonder whether the Minister can give us a sense of the risk involved by telling us how many NATO personnel have been killed since the end of NATO ground operations, which I believe was at the end of 2014.

I shall now turn briefly to the Chilcot inquiry, if I may. I am told that it contained 2.4 million words, but I felt that it really had only two key recommendations: first, that the decision to commit military personnel should be taken by due process; and secondly, that before taking the first step one should have a plan for the second and subsequent steps.

On the first step, can the Minister explain the process by which the decision was made? Who was involved? Was the FCO or DfID part of the decision? Was the Prime Minister? What criteria were set to measure success? How were the risks to our troops’ lives assessed? Can the Minister assure us that the risks are indeed minimal, and that there are no scenarios in which our people will be drawn into combat operations?

Secondly, how long will the deployment last? Is there an end date, or at least a set of criteria to measure success and, hence, lead to withdrawal? Have all scenarios been considered?

We all hope and pray that the mission is successful but, sadly, history is littered with limited military interventions turning into full-scale war. Can the Minister assure us that in no circumstances will that be allowed to happen? I have complete faith that our people will be able to help the Afghans fight more effectively, but could the Minister give us more detail on the training that will be provided? Will it be complemented by softer essential skills such as policing, particularly with respect to corruption, and governance? Will the further input to produce those skills come from the FCO and DfID, or will our allies provide the resource?

[Baroness Smith of Newnham (LD)]

My Lords, like the noble Lord, Lord Tunnicliffe, I thank the Minister for repeating the Statement, and I echo the words of the Secretary of State and the noble Lord, Lord Tunnicliffe, on the commitments that this country has made to Afghanistan and the tributes paid to the service men and women who have given their lives in Afghanistan.

This is clearly a serious decision that is being announced today. As the noble Lord, Lord Tunnicliffe, pointed out, 440 service personnel is a significant number. It increases the personnel that we currently have in Afghanistan by two-thirds. It is noticeable that the decision has been made, we are told, in response to a NATO request, at the time of a NATO summit and on the eve of a visit by the President of the United States. What is not clear is when the request was made. When was the United Kingdom asked to make this additional commitment and when was the decision actually taken? Is the confluence of timings just ahead of the NATO summit intentional? Is it intended in any way to send a signal to the President of the United States that the United Kingdom at least is keeping up to its NATO targets?

There is a whole set of other issues associated with the nature of the contribution and some of the key decisions that need to be considered, which, as the noble Lord, Lord Tunnicliffe, has pointed out, have not necessarily been answered in the Statement. How long is this additional deployment intended to be? We have been told that about half the troops are due to be deployed in August 2018 and the rest by February 2019, but we are not told how long this is intended to last. The more deployments that we have, the more questions there are about the sustainability of deployments and the pressures put on Her Majesty’s services. While we pay tribute to the service men and women who are deployed to Afghanistan and everywhere else around the world, there is a question of the impact that this will have on forces morale. Is the Minister content that the resources are there to ensure that this additional deployment can be managed? Can he tell us a little bit more about what the Government’s exit strategy might be?

Finally, the Secretary of State commented that this shows our commitment to NATO, which,

“must remain the cornerstone of our defence”.

Nobody in your Lordships’ House would disagree with that, but does the Minister think that the President of the United States feels similarly? What discussions might the Prime Minister have with the President to try to ensure that, by the end of this week, the United States’s commitment to NATO is strong as that of the United Kingdom?

Single Source Contract (Amendment) Regulations 2018

Debate between Lord Tunnicliffe and Baroness Smith of Newnham

Monday 9th July 2018 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, I am grateful to the Minister for introducing this statutory instrument and apologise for arriving momentarily after he started. He mentioned that the changes introduced in 2014 were intended to improve value for money and MoD procurement arrangements in general and that, since then, £19 billion had been spent using the single-source procurement mechanism. Will he explain a little more how the changes proposed in the SI will benefit the MoD and the taxpayer? I heard him say that the changes will be of benefit to the supplier. While we do not want to do down the suppliers, it would be helpful to understand how the changes will benefit the taxpayer as well.

[Lord Tunnicliffe (Lab)]

My Lords, I thank the Minister for presenting the regulations. Part 2 of the 2014 Act and the subsequent Single Source Contract Regulations 2014 are supported by these Benches. Unfortunately, I have lived through every bit of their creation and evolution. The key thing is: are they effective? The way to judge their effectiveness is, first, to understand the mechanisms, which the Minister has been invited to expand on, and, secondly, to look at how extensive they are. Does the Minister have at hand how much is being spent on equipment and infrastructure in a typical year, say, 2017-18? How much of that is single sourced? I believe the answer is nearly half. What proportion—and this is the key issue—are qualifying defence contracts? I wonder if he has similar figures for contracts with BAE.

The Explanatory Memorandum says that three of the five categories are “working well”, meaning that they describe the exclusions clearly. Two relate to land, I believe, and the third to government-procured equipment. Three are new or modified. The first, Regulation 7(b), is where there is international co-operation. The modification is that there should not be an exclusion if all parties agree. I have great trouble working out why parties would want to agree, because the mechanism is designed to give the Government, the SSRO, the MoD or whoever a better understanding of what is happening in the contract, giving them rights to challenge the suppliers. Why would anybody want to agree to this? Have any firms actually agreed to this?

The second modification relates to “intelligence activities”. This is clearly a case of unintended consequences because all intelligence activities are currently excluded. This turns it on its head to require only those contracts that are a risk to national security to be automatically excluded. Paragraph 7.9, I think, of the Explanatory Memorandum effectively defines “risk to national security”; that is, reports that would normally be required by the SSRO would contain information above a certain security level. Am I right in that understanding? Am I right that the key test will be the security level of the information that the SSRO would naturally demand if they became qualifying contracts? Otherwise, how is national security defined and who defines it?

The final modification relates to what one might loosely describe as novation. That does not give me any pain at all.

The key question about the modifications is: how many more, or what greater proportion of, single-source contracts will be brought into the ambit of the Single Source Regulations Office by these changes? Will the number be trivial or substantial? My final question relating to the order is: when will the MoD respond to the other SSRO recommendations?

Lastly, I have a question that is completely out of order. I point out to the Minister that the NATO summit is, I think, on Wednesday and Thursday. Will he give some indication of when he will give an overview of the defence modernisation programme promised before the NATO summit?

European Union (Withdrawal) Bill

Debate between Lord Tunnicliffe and Baroness Smith of Newnham

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Baroness Smith of Newnham]

My Lords, we have been told frequently that this Bill is about providing legal certainty on the day that we leave the European Union. We have already heard from three noble Lords a whole range of issues that will be extremely difficult in the transport sector when we leave the EU. If we cannot stay in the European agencies, are the Government doing to do at least as much as proposed new subsection (2) suggests and establish,

“an effective equivalent within the United Kingdom”?

If we are to have legal certainly, it is not enough simply to enshrine EU law into United Kingdom law. We need to know what the standards will be on the day that we leave. This is not something that is just hypothetical; this is not about widgets—it is about how our transport system functions on the day we leave. So far, we have not had sufficient answers on this, so I hope that the Minister might be able to tell us something that goes beyond the idea that this is simply going to be about the negotiations.

[Lord Tunnicliffe (Lab)]

My Lords, I look at this amendment and note that it is about the continuity and safety of transport. I have fewer fears than my colleagues about the matter of safety, because the industries concerned were moving towards standardisation decades before the EU was formed. The area where I am very alarmed is the whole issue of traffic rights. I spent 22 years in aviation, 20 of them working for BOAC and British Airways and, towards the end, as the number 2 in British Airways’ marketing department. That was the world pre-open skies and pre-EU, and it was horrific. Literally every city pair had a different agreement about it. All of them had to be agreed. Those were the days when Hong Kong was a colony, which was a golden card in negotiations. The idea of having to start from scratch and do all 134 city-pair negotiations is very difficult to understand.

Similarly, we have the same problem on the roads. The professionals who talk about the port of Dover say that the slightest delays through the port will cause chaos to the point where we have to worry about fresh food getting to our plates. The noble Baroness, Lady Sugg, laid on for interested Peers a meeting with the Secretary of State. He gave a very smooth presentation, which I would précis as, “It’ll be alright on the night”. He justified this by saying that it would be in both parties’ economic interest to conclude sensible and rational agreements. I think he is a bit heroically naive; I have spent most of my professional career in negotiations, and I have always found rationality to come a rather poor third place after emotion and power. The reality of these negotiations is that they will be conducted by politicians and bureaucrats.

The great thing about the EU is that it is refreshingly transparent. Perhaps more people should read what it produces more frequently. From time to time, in this negotiation, it produces guidelines. The first sets of guidelines were more or less delivered as agreed by the Council, and the latest set was agreed on 23 March. A six-page document was published with those guidelines adopted by the European Council at the meeting on 23 March; one paragraph says that,

“the European Council has to take into account the repeatedly stated positions of the UK, which limit the depth of such a future partnership. Being outside the Customs Union and the Single Market will inevitably lead to frictions in trade. Divergence in external tariffs and internal rules as well as absence of common institutions and a shared legal system, necessitates checks and controls to uphold the integrity of the EU Single Market as well as of the UK market. This unfortunately will have negative economic consequences, in particular in the United Kingdom”.

They are very clear about just how firm their position is. One has to recognise that they are representing the EU 27. They are there to meet their demands, and every member has a veto on this agreement. We have left the club: they are not looking after us anymore; that is not their responsibility.

So where do we stand? We have an emotional battle to fight—emotional or political, call it what you like—and we also have a power battle to fight. Do we have any cards? One card that we have with the EU is money, but we more or less agreed that anyway, so that one goes away. The other thing that we used to fight on over the decades after World War II when establishing air rights was reciprocity. That means, “You can’t come to our airfield unless we can come to yours”. The problem with that is that we are a bit of everybody else’s aviation activity. For us, the world is where we need to be and the world, at the moment, is determined and available through the European Union. If we cannot have access to the world, then our industry will be seriously damaged.

I hope that my pessimism is not justified, but I think that getting a better deal than the status quo is, sadly, highly unlikely. I hope that the Minister will be able to assure us that the energy is there to try to achieve the status quo, because otherwise it will damage us and it will damage our EU friends, but it will damage them a great deal less than it will damage us.