Queen’s Speech
Lord West of Spithead Excerpts(7 years, 11 months ago)
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Lord West of Spithead (Lab)
My Lords, the Government are unwittingly destroying our nation’s ability to design and build complex surface warships. That is particularly surprising when one considers that in the 1990s, the then Conservative Government almost did the same to our submarine-building capability. I thought that they had learned the lesson, but clearly not. From the early 1990s, year on year, the then Conservative Government delayed the order for the new Astute class—despite all our blandishments within the MoD—in theory to save money, finally putting in the order two months before the general election in 1997. Skilled men and women—engineers, designers at Barrow and the supply chains all over the country—were laid off and left to try to find other jobs. As a result, getting the submarine programme back on track was immensely expensive. We came very close to being unable to build submarines at all. Now, after 20 years of effort and huge cost, the submarine programme is back on track and able to deliver the Vanguard replacement programme.
Talking of that, Her Majesty’s most gracious Speech referred to the Government acting,
“to secure the long-term future of Britain’s nuclear deterrent”.
Well, hurrah for that, but the Commons decision to go ahead could have been made last year. The decision was postponed and Trident was instead relegated to becoming a political football. We should ensure that the Commons decision to replace our submarines is made this summer. It is crucial to put this whole argument beyond question, and an early vote would clear the air. Does the Minister agree?
The Government are doing exactly the same with the new frigate programme as they did with the submarine programme in the 1990s. I have spoken constantly and, some noble Lords will probably feel, at great length, about our lack of destroyers and frigates. For a great maritime nation, it is a national disgrace. Thirty-four years ago yesterday, the ship that I commanded was sunk in the Falklands. In that conflict, two destroyers, two frigates and 14 escorts were damaged. That is more than the number of destroyers and frigates we have today. Quite simply, we do not have enough and one need only look at the lacklustre responses to my many questions on the subject to realise that the Government know that to be the case. Why have we delayed and delayed the order for our new Type 26 frigates and reduced the number promised? The plan in SDSR 2010 was for 13 to replace the 13 Type 23s, the first to be in service in 2020. In SDSR 2015, the number was reduced to eight, with hoped-for entry in 2023. There was a sweetener—a new class of light frigates would be ordered, but after 50 years in the Navy, I say, let us not delude ourselves: they are on the drawing board and in my experience, there is many a slip twixt cup and lip.
Still, the Type 26s have not been ordered. Why not? Every delay adds to their cost, so when will they be ordered? What is now the planned date when the first will be in service in the RN? When will the last one be delivered? How old will the Type 23 that it is replacing be by then? What is the drum beat of ship orders to ensure the survivability and stability of British shipyards?
I hope to get some clear answers. The series of questions that I have asked trying to establish what, if any, extra money has gone to First Sea Lord’s maritime fighting environment has been given very confusing answers. The reality is that despite much trumpeting about how much extra money there is for defence, the MoD is suffering from a near-term cash crisis, as a number of us on both sides of the House predicted at the time of SDSR 2015. Effectively, there is a £1 billion shortfall in the First Sea Lord’s budget. So the Type 26 programme has been cut and has slipped. Does this remind noble Lords of something? Yes, the submarine debacle of the 1990s.
The delays to the Type 26 programme will come back to haunt us and cost us dear, but more significantly, they are in danger of destroying our complex surface warship-building industry. Without those orders, another major area of British engineering and skill will disappear—we can think of steel and all sorts of things. Sir John Parker’s study is not the answer to this, although I am glad that he is doing the study. The answer is warship orders.
The Battle of Jutland was fought 100 years ago this month. It was a strategic victory because we had out-built the Germans in the number of dreadnought battleships. Today, we cannot even build a frigate, and our nation needs maritime power. The first paragraph of the Queen’s Speech says that the Government will “strengthen national defences”. Again, hurrah for that. That is a great victory for many of us in this Chamber who pointed out that in the last two Queen’s Speeches, defence seemed a real afterthought. Let us put our money where our mouth is. After some pushing, the noble Earl has already admitted in a Written Answer that, far from having more ships in the Navy in 2030, as promised by the Prime Minister in 2015, we will actually have fewer.
We have a choice: to take defence seriously or not. I believe that we must, whether in or out of the EU and, according to the gracious Speech, so do the Government—hurrah. An order of frigates, leading to a steady drum beat of one built per year, will lead to the 30-escort Navy identified as required in much defence policy work, preserve a crucial national capability, reduce costs and lead to export opportunities.
Our great nation is standing into danger. Soft power without hard power to support it is as nothing.
Earl Howe
My Lords, if I may, because I am unsighted on the question, I will write to my noble friend on it. I do not have advice which would enable me to answer him now.
I turn to humanitarian issues, particularly the World Humanitarian Summit referred to by the noble Lords, Lord Collins and Lord Purvis of Tweed, my noble friend Lord Lansley and others, including the noble Lord, Lord McConnell. The Government welcome the UN Secretary-General’s leadership in convening the World Humanitarian Summit, taking place this week. My right honourable friend the Development Secretary is heading the delegation and advancing priorities for a new approach to protracted crisis, a renewed commitment to the protection of civilians in conflict, a reformed humanitarian system, including smarter financing, and a stronger focus on protecting and empowering women and girls. The well-founded passion of my noble friend Lady Perry for education was echoed in a question from the noble Lord, Lord Collins, about the Education Cannot Wait Fund. Today, 37 million children living through conflicts or crisis are out of school. This very day, the UK announced that we will commit £30 million to the Education Cannot Wait Fund for education in emergencies. A generation of young people is missing out on education and being cheated out of their future. Their education cannot wait and neither should our support. We want the international community to step up efforts to reach every child with the schooling they need to make their futures brighter.
The noble Lord, Lord McConnell, referred to the sustainable development goals, as did the noble Lord, Lord Purvis, who suggested the creation of a sustainable development goals champion in the Cabinet Office to ensure effective delivery. The sustainable development goals are a major evolution in the way we think about international development. We have agreed a set of top-level strategic objectives for the Department for International Development to ensure delivery against the goals. DfID will lead a co-ordinated and coherent cross-government approach. The department has a number of review processes ongoing both internally and across government which will inform this strategy. The UK’s decision on the upcoming replenishment of the Global Fund is dependent on the outcomes of reviews which are to be published later this year. We fully support the Global Fund’s funding and allocation model as it currently stands.
The noble Lord, Lord Stone of Blackheath, referred to the use of soft power with the help of the British Council, particularly in education, and referred to building universities with British standards. The noble Lord, Lord Loomba, also spoke on this theme. The British Council makes a major contribution to UK soft power by creating international opportunities and providing access to the UK for the next generation of global leaders, building long-term influence in those countries.
We want an increase in global partnership and networks with higher education institutions in the UK and around the world. To that end, the British Council will do four things in particular. It will promote a dialogue and sharing of practice; it will provide consultancy and services to support development, reform and innovation in higher education; it will promote UK sector expertise and create market opportunities and connections for UK stakeholders and institutions; and it will support international scholarships and alumni networks to build long-term influence in those countries.
The right reverend Prelate the Bishop of Carlisle asked about the use of overseas development aid by departments other than DfID. He will not be surprised to hear that DfID will continue to be a primary channel of official UK development assistance spending, but in order to respond to the changing world more aid will be administered by other government departments, drawing on their complementary skills. As set out in the UK aid strategy, we will continue to make aid more transparent, committing all UK government departments to be ranked good or very good in the international Aid Transparency Index within the next five years.
The noble Earl, Lord Sandwich, asked what we were doing to tackle corruption, which is costing developing countries billions of dollars. The UK aid strategy sets out that the Government will do more to tackle the organised crime and corruption that hit the world’s poorest people hardest. Last week, the anti-corruption summit agreed a global declaration that corruption should be exposed, the corrupt pursued and punished, those who suffered fully supported and corruption driven out. DfID funds two police teams to investigate corruption cases affecting developing countries. A £12 million investment between 2006 and 2015 resulted in £170 million of assets stolen from developing countries and laundered in the UK being restrained, recovered or returned. In 2015, my right honourable friend the Development Secretary announced £21 million of new funding for this work over the next five years.
The noble Baroness, Lady Flather, spoke powerfully about violence against women and girls. Ending all forms of such violence is a top priority for the Government. My noble friend Lady Verma has been appointed the ministerial champion for tackling violence against women and girls. Last week, the Independent Commission for Aid Impact gave DfID a green rating for its work in this area, underlining Britain’s leading role in the global efforts to put a stop to violence against women and girls. By 2020, DfID’s support will have enabled 24 million more of the world’s poorest girls to use voluntary family planning information services and supplies.
My noble friend Lady Berridge referred, again very powerfully, to sexual exploitation. We support the UN Secretary-General’s zero-tolerance approach to sexual exploitation and abuse by peacekeepers and civilians working in conflict zones. We have provided £1 million of funding to support training, vetting and implementation of UN reforms. The United Nations needs to act swiftly on the recommendations in Madame Deschamps’ report on this issue.
The noble Baroness, Lady Flather, referred to the CDC. I can tell her, if she does not know already, that a new investment of £735 million over the next three years represents the first capital injection which the Government have made into the CDC for 20 years. Our new investment will allow the CDC to support many more businesses throughout Africa and south Asia, building on its already considerable successes.
The noble Lord, Lord Collins, asked about the UK’s priorities for the LGBTI conference in Uruguay. The UK Government support the key objectives of the conference: to provide an important opportunity for sharing information, best practice and lessons learned with partners; and to discuss how to better co-ordinate international efforts to support the promotion and protection of the rights of lesbian, gay, bisexual and transgender people worldwide. The change to the proposed date has meant that the UK delegation is not yet finalised. We will keep the level of our attendance under review. We are committed to the issues, which UK officials across government are familiar with and active upon.
The speech of the noble Lord, Lord Hylton, brought us back to a topic of continual concern: the Middle East peace process. We are deeply frustrated at the lack of progress in the process. A just and lasting resolution that delivers peace for both Israelis and Palestinians is long overdue. We believe that a negotiated two-state solution is the only way to end the Israeli-Palestinian conflict. There is no better alternative that can deliver peace and a Palestinian state in reality and on the ground. We do not underestimate the challenges but firmly believe that peace is possible if both parties show leadership. Unfortunately, this month has seen the most serious escalation in Gaza since the 2014 conflict, but the UK welcomes all efforts to drive forward progress between the parties, including the Arab and Israeli peace initiatives.
As I say, peace will come only through negotiations between the parties, but international action involving regional players, the EU and the quartet can play a role in supporting that process. FCO officials have met representatives of the Two States One Homeland initiative. The sort of creative thinking that this initiative contributes is welcome. I hope that that provides the gist of an answer to the noble Lord, Lord Hylton, who asked the Government to put their full diplomatic resources behind the resolution of the process. I assure him that the Middle East peace process continues to be one of the Government’s principal foreign policy priorities and we devote considerable resources, in both diplomatic effort and financial support, to drive forward progress.
The noble Lord, Lord West, devoted some of his speech to the strength of the Royal Navy. The noble Lord is of course correct that the Royal Navy had a larger overall fleet at the time of the Battle of Jutland 100 years ago but let us be clear: our advanced Royal Navy, set out in the SDSR 2015, has a transformed role and capabilities compared to the navy of the First World War. Our two new Queen Elizabeth-class aircraft carriers will transform the Royal Navy’s ability to project our influence overseas, forming the core of our maritime task group, with one available at all times; and with the introduction of our Type 26 vessels, we will have one of the most capable anti-submarine fleets in the world. The Type 26 will be complemented by our new class of lighter, flexible general purpose frigates. The Royal Navy will continue to deliver our nuclear deterrent, provide world-class amphibious forces and project our maritime power around the globe. I will write to the noble Lord on his remaining points about the Type 26 frigate, if I may, in view of the time constraint.
Our submarine programme was referred to by the noble Lords, Lord West and Lord Touhig, and the noble Baroness, Lady Jolly. There will be an opportunity in due course for a debate and vote on our commitment to a successor to the continuous at-sea deterrent. As set out in the SDSR, we have moved away from a traditional single main-gate approach, which is not appropriate for a programme of this scale and complexity, to a staged investment programme.
Lord West of Spithead
I shall be very quick. Is it possible to have a debate in this House on the deterrent before the decision is made in the other place, maybe during the same week?
Earl Howe
I should be delighted to pass that suggestion on to the usual channels.
I recognise that the noble Baroness, Lady Miller, does not support the principle of the deterrent, but on the cost, which she asked about, the only way to ensure continuous patrols is to have a fleet of four deterrent submarines. We were clear on that in our manifesto. We intend to honour that commitment. We estimate that four new submarines would cost £31 billion, spread over 35 years, on top of which we are setting a contingency of £10 billion. We have been clear about the cost estimates published for the successor submarine. We are replacing the submarines and that cost equates to 20 pence in every £100 of annual government spending. The in-service costs remain unchanged: around 6% of the annual defence budget. I will make one more point to the noble Baroness, Lady Miller: the nuclear deterrent will not be rendered obsolete by new technology, including cyberthreats. We dedicate considerable resource to assessing the threats from emerging capabilities and will apply any necessary mitigation through the lifetime of the nuclear deterrent to combat those threats.
The noble Baroness, Lady Jolly, asked about the non-proliferation treaty. The UK is at the forefront of disarmament efforts. Our nuclear deterrence is at the minimum credible level and we hold barely 1% of the global nuclear weapons stockpile. We regularly call for universal adoption of the NPT in the United Nations and other international meetings and in bilateral meetings with non-NPT nuclear-armed states. However, the noble Lord, Lord O’Neill, was right that we have a political and moral responsibility to protect our people and allies. Our deterrent is a sign to NATO and we cannot outsource that commitment. The deterrent is there to deter the most extreme threats to our national security.
The right reverend Prelate the Bishop of Carlisle and the noble Baroness, Lady Jolly, made some powerful points about mental health care for defence personnel. We take the mental health of our personnel very seriously and provide a wide range of effective treatments for those who need them. In the UK, we have a network of military departments for community mental health, located conveniently for major centres of military population. Leaving personnel who have had mental health issues during service are able to access the DCMHs for up to six months after discharge to help them during the transition period.
The noble Baroness, Lady Cox, spoke powerfully and with first-hand knowledge about South Sudan. We remain deeply concerned by the dire humanitarian situation in South Sudan. More than 2.4 million South Sudanese are displaced and almost 3 million people are at risk of life-threatening hunger. All parties must allow unrestricted humanitarian access. We are fully committed to supporting the people of South Sudan and have been a major donor to that country. Cross-border aid is a policy option that we keep under review. We support UN efforts to gain humanitarian access to rebel-held areas and welcome the Government of Sudan’s announcement that they will allow humanitarian aid from within Sudan to reach parts of South Kordofan controlled by the Sudan People’s Liberation Movement-North. We call on all sides to allow immediate and sustained humanitarian access.
As regards Burma, I am sure the noble Baroness will know that the UK has provided £18 million for humanitarian assistance since 2012 for more than 126,000 displaced and conflict-afflicted people, including water and sanitation, as well as work on malnutrition and gender-based violence. We will continue to be active in support of the peace process, both politically and through our development work.
My noble friend Lord Sheikh devoted his speech to Libya. We welcome the Government of National Accord’s move to Tripoli and will be working closely with them as the sole legitimate Government of Libya. We are supporting urgent action by the GNA to reach out to actors in the east of Libya, to assert their authority over Libyan ministries and key financial institutions, and to establish a unified military command structure under a GNA banner. He will know that on 16 May, the US Secretary of State and Italian Foreign Minister hosted a ministerial meeting on Libya in Vienna attended by more than 29 countries. In a communique, they reaffirmed support for Libyan unity and the GNA.
My noble friend Lady Hooper spoke with her typical authority about Latin America, in particular Colombia. I will write to her about that country, and about Ecuador and Brazil. Time prevents me, I am afraid, from addressing the other issues raised by noble Lords, including my noble friend Lord Selsdon and the noble Lord, Lord Collins, who asked me about Saudi Arabia and human rights abuses in Yemen.
I wish to conclude by addressing the amendment tabled by the noble Lord, Lord Owen. I will say at the outset that we are happy to accept this amendment because we want to reassure people that this issue is already adequately dealt with. The Government’s position remains that protection of the NHS is non-negotiable, but in our view there is no threat to the NHS from TTIP. Last week, in response to the legal analysis commissioned by Unite on the impact of TTIP on the NHS, the EU said on behalf of Commissioner Malmström that
“TTIP poses no risk whatsoever to public services in the EU, including the NHS”,
and that nothing in TTIP would affect how the NHS in the UK operates at the moment.
This position was strongly endorsed by the US trade representative Michael Froman. The current draft of the TTIP text includes a wide range of protections for the NHS, including: a general exemption for “a service supplied in the exercise of governmental authority”; a series of exemptions which ensure that government procurement of health services is excluded from the scope of TTIP; an EU-wide reservation allowing member states to take any measures that they see fit in respect of “all health services which receive public funding or State support in any form”; and another EU reservation allowing member states to have public monopolies over activities considered at a national or local level as public utilities—all this with additional UK-specific reservations on specific services such as ambulances and non-hospital residential care. The one thing you will not find anywhere in the draft is a requirement to outsource health services.
At the same time, we are keen to do anything we can to put people’s minds at rest and reassure them that the protection of the NHS is non-negotiable. With that in mind, we are happy to accept the principle of ensuring appropriate protections and exemptions for the NHS in TTIP and, on that basis, we are happy to accept the noble Lord’s amendment, if he chooses to press it. Given the range of provisions already proposed, we do not think it necessary to bring forward domestic legislation, but we are happy to keep that under review as negotiations continue.
The gracious Speech sets out the Government’s stall for the year ahead. We are living at a time fraught with danger and uncertainty, but Britain will not be retreating into her shell. Instead, we are stepping up. We are looking outward, we are being bolder in defence of our interests and we are being tireless in pursuit of a safer, more prosperous world.
Afghan Interpreters
Lord West of Spithead Excerpts(8 years ago)
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Earl Howe
My Lords, anyone who has worked for British forces in Afghanistan and claims to have been intimidated will have their case thoroughly looked into; we have a well-established process for doing that. There is the option at the end of the day to relocate to the UK, but in the majority of cases it is quite safe to relocate such people to other places in Afghanistan, where we know that they will not be at risk.
Lord West of Spithead (Lab)
My Lords, a number of us, particularly the noble Baroness, Lady Coussins, have been pushing the Government on this issue for more than two years. Kicking and screaming, they have got to the position they are in now. The Minister was involved in a lot of those discussions. Why can we not have a default position for this very small number of people that they can come here—for all the reasons that have been given, in terms of future operations and a debt of honour—and we then look at them in detail and if necessary say, “Actually, you don’t really qualify”, rather than making them go through all this in Afghanistan with the results that we have seen?
Earl Howe
As I indicated earlier, the Afghan Government have made it clear to us that they do not want to see a brain drain, so we have to look at it in the light of the Afghan Government’s wishes. The intimidation scheme is not something we have just set up and let run; there is an independent assurance process for the scheme. We have a Danish legal adviser and a barrister review of 20% of the cases. There has been a cross-government assurance committee to provide further independent oversight, which will include in its membership a former Afghan staff member.
Armed Forces Bill
Lord West of Spithead Excerpts(8 years ago)
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Lord West of Spithead (Lab)
My Lords, I am still on the active list. I have been for 50 years now, and will remain on it until I die, unlike the noble Earl. I have been president of a court martial and on a court martial board, and have been court-martialled myself. I have also read Hansard from the previous debate. Although the system is not broke, we do need to look at possible changes, but we need to be very wary about how we move forward. I thought the arguments deployed by the Minister in Committee were very convincing.
Baroness Jolly (LD)
My Lords, in Committee I was happy to support the noble Lords on what is now Amendment 5 and the arguments that I used then still stand.
Looking at Amendment 6, I was trying to find a new angle last Wednesday and I happened to look at the newsreel. Three articles came up. One was about Private Cheryl James, the next one was about the Anne-Marie Ellement case, and there was an article about the British Army moving on from previous problems and being named in the top 50 employers of women. There seemed to be a disjoint there.
Last summer the Chief of the General Staff, General Sir Nick Carter, said that the Army has an overly sexualised culture in which inappropriate behaviour is deemed acceptable. It is not acceptable; young people and parents of young people find it unacceptable, as do the public. The culture needs to change and it is much easier for the Army or any of the services to look at culture change if it is measured. The measuring of behaviour can indicate trends—where there is success, where there is failure, and where work needs to be done. The Minister in the other place, Mark Lancaster, said in Committee there that he was minded to publish statistics. I asked the Minister where we were with that and I wonder whether there has yet been any decision on how and when these statistics will be published.
Lord West of Spithead
My Lords, I support both these amendments. I have huge admiration for the noble Viscount, Lord Slim, and I looked again very carefully at what was being proposed. I have to say, I feel that there is no damage to the chain of command and absolutely no damage to the status of the commanding officer, because these are very special circumstances. I think his concerns in this specific instance are not necessarily valid and I therefore feel that this is the right way to go and it will not have any impact on chain of command or the CO’s position.
Lord Berkeley of Knighton (CB)
My Lords, I have been listening with great interest to this debate and been persuaded by what has been said on all sides of the Chamber, but one thing occurred to me when we were debating Amendment 2. The Minister said he was not really aware of a lack of confidence in the system but I have to say that the noble Lord, Lord Thomas, is right. It is not just in the Daily Mail. Whenever you read about Deepcut or any of these scandals, the people whose families are affected do not have total confidence in the system. They think there are cover-ups. Only on the radio on the way here, I heard the families of people who were at Hillsborough saying they were let down and a chief constable has been sacked because there was a cover-up. It really is not good enough to say that the public have trust and the Minister is not aware of mistrust. I can assure noble Lords that there is mistrust among the general public, who feel that organisations that inspect themselves when there is a problem are deeply suspicious. I am not saying that the military does not often do things very well—or the police or any other organisation—but the general public are concerned about this issue.
Earl Attlee
I support the recruitment of people under the age of 18 into the Armed Forces. It provides a fabulous opportunity for them.
I have no problem with Amendment 7 but I do not expect my noble friend to accept it. It would be a seriously good news report. I would certainly like to write the section on evaluating the effects on young service people. I would be able to write lovely case studies about youngsters coming from disadvantaged circumstances with poor employment prospects. These people will obviously be young, fit, able to read and write, intelligent and have potential. They can join the Armed Forces and have a fabulous career, whereas for their contemporaries in certain areas of the country the prospects are not very good.
The education and training they will receive will, generally speaking, be far better than they get elsewhere. They may leave the Armed Forces fairly soon but, by that point, if they are not in a highly skilled trade, they will probably have a vocational driving licence. As to the financial effects, it is a win-win situation. These youngsters will have an income their contemporaries will not have, so that is a win for them. They will be on the pathway to a decent career. When they become 18, they will be fully trained members of the Armed Forces and deployable.
To be charitable, Amendment 8 is unnecessary. It suggests that a young person recruited into the Armed Forces is practically illiterate. The reality, as my noble friend will tell us, is that a guardian’s consent is needed. More importantly, a young person who is illiterate to the extent that they cannot read and understand the recruitment papers would not be able to pass the service entrance tests. Their potential would be so poor that they would be of no use to the Armed Forces and would not be able to get in on that route. Therefore Amendment 8, to be charitable, is unnecessary.
Lord West of Spithead
My Lords, I have a certain sympathy for the amendment of my noble friend Lord Judd but I feel that allowing people to enter the services at 16 is a good thing. I tried to join when I was 14, which was slightly too young in my mother’s and the Navy’s opinion, but I joined at 17. As my noble friend said, a number of the people who join the services at that age come from disadvantaged backgrounds, and what the military does to those people is quite remarkable. If we were able to show that, everyone would see it, but there is no need to do so. It is right that we still take people into the services at 16. They gain a great deal and it is a useful and good thing for our society, in the same way as the cadet forces add a great deal to our society.
Lord Tunnicliffe
My Lords, I shall speak to Amendments 7 and 8. Whether we like it or not, this is a fundamental debate about whether young people of 16 should be recruited into the Armed Forces. We have to respect that this is a serious debate and that both sides believe with conviction that their position is right. I respect the work of Child Soldiers International and I recognise the persuasive nature of the arguments it makes. It refers to issues of morality, welfare, economic and even diplomatic issues.
But there is the other side of the debate, which is that for many young people the great start they are given in life by being recruited at 16 provides them with opportunities that no other direction would give. They have the best start to adulthood. We believe that on balance, the argument for the opportunities provided is stronger than the argument that there should be no recruitment until the age of 18. We also believe that there should be the maximum practical protection for these young people.
Warships
Lord West of Spithead Excerpts(8 years, 1 month ago)
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Lord West of Spithead
To ask Her Majesty’s Government what is the optimum build rate of surface warships in the United Kingdom to ensure viability of a national complex warship building capacity and the best cost per ship; and what assessment they have made of how many yards are necessary to ensure resilience in case of national emergency.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, the new national shipbuilding strategy led by the independent chair, Sir John Parker, will consider the optimum build rate, the cost per ship and number of yards required to ensure a modern and efficient national warship sector capable of meeting the country’s future defence and security needs. Work on the strategy is ongoing and Sir John Parker will make recommendations to the Government later this year.
Lord West of Spithead (Lab)
My Lords, I thank the Minister for his Answer. It is rather “jam tomorrow”. He will be aware of the direct link between build rate, actual length of time that a ship has to survive, and overall numbers. Since 2010 we have not ordered a single highly complex major warship. If we do not have a constant flow of ships being built in this industry, we will have another fiasco like the steel industry. I ask the Minister, first, why, when the Prime Minister and the Secretary of State for Defence said at the time of the 2015 SDSR that we would have a larger number of warships in the Navy by 2025 than today, in fact we are going to have fewer? Secondly, does he not agree that it is a disgrace that we have so few ships that for the first time in living memory we do not have a destroyer or frigate deployed in the north Atlantic outside home waters, in the West Indies or in the south Atlantic?
Earl Howe
My Lords, I do not accept that by 2025 we will have fewer ships. The strategic defence and security review published last year set out the Government’s plans for surface warship building, in particular the Type 26. We committed to precede that programme with two additional offshore patrol vessels. The work to develop a new baseline for Type 26 is proceeding, as is the work preceding the concept study for the design and build of a new light general purpose frigate. The key aim of the national shipbuilding strategy is to have a sustainable long-term shipbuilding capacity in the UK. The point on which I particularly agreed with the noble Lord is that what many people call a regular drumbeat of production is what is required, rather than peaks and troughs.
Army: Helicopter Pilots
Lord West of Spithead Excerpts(8 years, 1 month ago)
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Earl Howe
My Lords, the Army has done several things. Most importantly, it has implemented a comprehensive manning strategy for building and sustaining the Army Air Corps. There is also now a financial retention incentive for Army Air Corps pilots which has resulted in an 81% take-up rate, including from personnel affected by the recovery of previous overpayments. In addition, a more flexible—and therefore more attractive—career as an aviation specialist will be available, including recruiting some direct entry, senior other ranks aircrew and improving the return on initial training investment.
Lord West of Spithead (Lab)
First, and less importantly, is the noble Earl aware that admirals have been overpaid? That is an interesting point. More importantly, will this impact at all on the increased number of naval pilots that we need to recruit and train for the new Sea Lightning aircraft that are coming in? We have been promised that they will be ordered, and we will need those pilots, so this must not impact on recruiting and training.
Earl Howe
Let me first make it clear that the overpayment referred to in the Question has not affected Royal Navy air crew, nor indeed RAF pilots. I can give the noble Lord the reassurance that he seeks, because the action now being taken is in the wake of mistakes made in the past. The system is now working correctly.
Armed Forces Bill
Lord West of Spithead Excerpts(8 years, 2 months ago)
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Earl Attlee
My Lords, before the Minister and the Opposition Front Bench reply, the noble Baroness made a very important point about the ration packs, which was slightly outside the scope of my amendment, but I have spoken slightly outside the scope of other noble Lords’ amendments. One of the challenges of manufacturing the ration packs is the exact point that the noble Baroness made about packing enough calories into them. It makes it very difficult to find suppliers that can pack that many calories into the packs.
Lord West of Spithead (Lab)
My Lords, I did not intend to speak on this, but I will say a couple of words—not that I try to eat my 6,000 to 8,000 calories a day. That is a real issue, but we are not on operations. I will speak on the concern that the noble Earl, Lord Attlee, expressed about cohesion. There is something in that. In the Navy we are all right. We are on ships and it is not pay as you dine—the food is there and we all eat together. When they are ashore and living in a barracks or a mess, compared with the old system where people went to the mess hall and all ate together, they now, instead of having barrack rooms, have individual cabins, which are much nicer, of course. There is a real danger of a lack of social cohesion. To be quite honest, I do not think there is anything that can be done about it. We have to move down this route, but it is right to be raised as an issue. Certainly, very junior ratings living independently in single cabins have to have particular care taken of them by their divisional officers, because they do not have that factor of living with other chaps and other people to help to support them. That needs very close looking at.
Lord Touhig (Lab)
My Lords, we all agree that having a healthy meal and good food inside us is important for increased productivity and performance. Not for nothing did Napoleon say that an army marches on its stomach. In the Armed Forces, being able to perform at your best is paramount to the role of those we ask to serve our country. Labour introduced the pay-as-you-dine scheme for the Armed Forces in 2006. I cannot remember whether I started it as a Minister, but I was certainly around as they were planning it. As noble Lords will know, I left the ministry soon after that, but that is nothing to do with this piece of legislation.
If required, service men and women who are single and live in service accommodation pay for their own meals when not on active duty, meaning that they would pay only for the meals they actually eat. Under the pay-as-you-dine system, they are responsible for their own meals and making healthy choices, which the Ministry of Defence encourages.
There have been many concerns about the scheme. Some report that it disadvantages the lowest paid in the Armed Forces, as they often run out of money to pay for their food at the end of the month. Others are concerned that individuals may not be following a healthy diet as a result of choosing and cooking their own food, and some, as is highlighted in the noble Earl’s amendment, are concerned that pay as you dine leads to a decline in camaraderie, as personnel of all ranks are not all eating together any more and are instead eating alone or in small groups. I do not want to say more about these concerns at this stage, although I recognise they are perfectly legitimate and should be addressed.
I suggest to the noble Earl that if he is not successful in persuading the Minister of the merits of his amendment, he should press for the information he is seeking to be included in the Armed Forces Covenant Annual Report. That comes out every year. We would then not need primary legislation. It would mean it would be reported every year, people would see it, it would raise the profile of the issue and some of the noble Earl’s concerns could then be better addressed. The Armed Forces covenant is our obligation to the military, and it is likely that this issue will get greater attention if we were to do it that way.
Earl Attlee
My Lords, the noble and learned Lord, Lord Hope, talked about training fatalities. My view is that all training fatalities, wherever they arise, should be subject to an inquest. I think there is a far bigger problem with training accidents than with operational fatalities. Those occur where the enemy has a better position on you and sadly some servicemen are unlucky, but with a training accident, it is quite likely that something has gone wrong.
Lord West of Spithead
My Lords, I have a certain sympathy with what the noble Earl, Lord Attlee, has said. Indeed, I think that the coronial system, certainly when it was first being used for these sorts of events, was giving some very unfortunate results. There is no doubt whatever that one or two of the coroners were going way beyond what was required, and it put the whole thing into dubious territory and people began to think, “Why on earth should we do this at all?” because it was so damaging.
In terms of telling people what has happened, we talk of the next of kin’s need to know, which is absolutely right, but of course we have an established system whereby as a commanding officer you write a letter—I have written many of those letters—to the next of kin, explaining what happened and talking about their son, husband or father. Indeed, on the subject of fathers, I used to write another letter to all the children, to be opened when they were 18, explaining what had happened. I also let it to be known to all the families that they could come and talk to me about it if it happened. I am sure most COs do similar things. Indeed, a number of the next of kin took that up and I was able to sit down and talk it through with them.
I think the coronial system has got better but I still have concerns that there is the risk of this becoming a blame game. That is not what was intended at all and I was very nervous about that. I am not sure about this amendment but I think some of those wider issues that have been talked about are important and I am pleased we have had this opportunity to have this debate.
Earl Attlee
I am grateful for the partial support from the noble Lord. I have read the Army’s casualty procedure and looked at the advice to the commanding officer, and when I last looked at the document—I doubt it has changed that much—it said as little as possible. It certainly went nowhere near the detail that I propose. I am proposing that the next of kin would be able to talk about the circumstances with great knowledge, so that when someone suggested that something was wrong with the equipment, they would be able to say, “No, you have to understand that this was the difficulty”. Also, if perhaps the serviceman was the author of his own demise, they would understand why it was so easy to have an unfortunate outcome.
Lord West of Spithead
In the Navy, the rules are not quite so direct, but you are given guidance to be sure that you do not raise issues that would become extremely difficult. But I always felt that that gave you quite a lot of scope. As we know, rules are for the obedience of fools, and one was able to do quite a lot in those letters.
Lord Thomas of Gresford
I am grateful to the noble Lord, Lord Touhig, who drew my attention to a Scottish television report of September 2012, which says:
“Investigations into the deaths of Scottish military personnel killed abroad will be able to take place in Scotland for the first time from later this month. Up until now inquests into the deaths of servicemen and women have often had to be heard in England, forcing their bereaved families to travel long distances to take part in the hearings. But a change in the law means that from next Monday, September 24, the inquests will be able to be held north of the border”.
The mechanism is that the chief coroner, Peter Thornton, can,
“recommend to the Lord Advocate … that an investigation be transferred to Scotland”.
It arises out of 14 servicemen dying when their Nimrod crashed in Afghanistan; they were based in Moray, at RAF Kinloss, and the inquests were held in England.
Lord West of Spithead
We have gone down the route of the coronial system. As Plato said, only the dead see the end of war. Sadly, I am afraid that at some stage we will be in a war when we lose thousands of people, and I have no idea how the system will work at that stage or what the thought processes are about that.
Viscount Slim (CB)
Just to give noble Lords an example of an incident that might have involved an inquest and lessons learnt, in Korea, in an hour and a half, my battalion lost about—I am giving approximate figures as I do not remember them—probably nearly 30 dead and slightly more than 70 wounded. The reason was that during the battle, when we called for air support, we got some excellent American pilots, but they bombed us with napalm, instead of the enemy. We would call that “blue on blue” today, and you would have an investigation. Of course, it encouraged the enemy, who were the North Koreans at that time, to put in a counterattack, so we really had a very unpleasant time for a couple of hours. In those days, when we had a good number of soldiers, we had a reinforcement system, at the back of the Korean peninsula and in Japan, that sent you, within 24 hours, fully battle -trained soldiers to replace them—and we got about 100 or 110 good new soldiers.
Today, someone would want to have an inquest about why we were bombed. The chaps made a mistake, we had all those casualties—what use is an inquest? You have to get on with the battle. Lessons learnt—well yes, we can learn a lesson in 20 minutes about how to improve on what went wrong. In those early days of close air support, it was a lengthy process—not like today, when it is almost instantaneous. The military is the first to make amends for, and take decisions about, what went wrong and put that right. I do not see how a coroner with no military experience looking at that disaster would have helped at all. You must get on with the war.
The noble Earl was right to talk about what happens when a chap you have with you and who is your responsibility is killed. As the noble Lord, Lord West, said, you write to his mother, father, wife, daughter and whoever there is, and I am not sure that you write just a little—you write quite a lot. Those are the hardest letters to write of any kind. When everyone else is having a night’s sleep, you are up all night writing those letters—it is not just one. The commanding officer will write and so will his platoon or company commander. The wretched widow, mother or whoever gets two or three letters. On the whole, because you must explain how and why the son was killed, you write rather fully. You write in your own hand. When there are 30 of those letters to write, that is quite difficult. Do not tell me that the odd tear does not come down from the officer writing them.
Inquests play into the hands of the opposition nine times out of 10. On lessons learnt, nobody learns them quicker than the Army, Navy or Air Force.
Baroness Jolly
I understand what the noble Earl is trying to get at. Conversations I have had about this suggest that the number of women who are likely to fit the category will be very small indeed. I am sure that they will ensure that they have all the other characteristics that the noble Earl suggests they should have in order to engage.
Lord West of Spithead
My Lords, we know very well that women can be amazingly brave. We have always been willing in wars to let them die. Indeed, when I did my study into the employment of women at sea, it was quite clear that they could do all the jobs in ships at sea. Indeed, quite often they were better at some jobs than young men, particularly some of the computer work that was being done. However, there is a concern when it comes to hand-to-hand fighting and the like. With a volunteer force, we will have to allow women to become part of the infantry and the Royal Marines. What we must not do is lower the physical standards. There must be no lowering of them, so it will be a small number of women who can do that. Certainly, my judgment of women is that a lot of them are probably far better at killing people than men are, so I do not think that that is a problem, either.
However, I have a concern. One speaks in generalisations about training and other things. As I said, we must not lower that standard. When we talk in generalisations, women have 30% less upper body strength than men. That is across the whole population. Yes, in this volunteer service we will get away with this, but we must not let it affect operational capability or cause us too much of a problem administratively because too few women will be able to do it and therefore one makes special rules and it becomes administratively very difficult. Again, it comes to this business where, one day, we will have a war again, I fear—no one can predict it—and in the case of a general war, would we in this country conscript women as well as men into the infantry? That is an interesting question. That is all I have to say on this subject.
Lord Touhig
My Lords, more than 20 years ago, as a parliamentary candidate in Richmond in west London, I addressed a Labour Party women’s group, telling them that as a country we wasted a small fortune on educating girls and women at all. Before they could leap from their seats and warmly shake me by the throat, I went on to say that as a man, I had a family and a career but all too often women were denied this and had to make a choice of having one or the other. We spend a fortune on their education and then put barriers in their way to having a career and a family. For me, that is plain wrong.
Thankfully, as time has passed, more and more opportunities exist for women to enjoy the same lifestyles as men and to have a family and a career, but we are still far from achieving true equality. Where we can take steps to achieve this, we should do so. I therefore welcome the Government’s initial commitment to allowing women to serve in front-line roles in the Armed Forces. This amendment would prevent that and would deny a fit, well-trained, skilled and experienced woman combatant the same career progression as her male counterpart. This will always be a controversial and complex matter, as my noble friend Lord West pointed out, but if we are serious about the equality agenda we cannot deny women the same role that we offer men.
Throughout history womankind has played an exceptional and extraordinary role in our development, almost always against the odds and facing prejudice. Some would argue that in affording women this opportunity we are setting a precedent. Yes, we are—about time, too. I have no doubt that the first human who stood up straight and started walking on two legs was watched by those still on all fours, who tut-tutted and complained that this was setting a precedent. They were proved wrong, and I very much regret to say to the noble Earl, Lord Attlee, for whom I have the highest regard and respect, that I believe that his amendment is wrong, too. On Monday in the House we will debate a Motion to take note of the progress made in the United Kingdom in women’s representation and empowerment, 150 years after the 1866 petition to the House of Commons for women’s suffrage. It is about time we caught up—especially in the Armed Forces.
Lord West of Spithead
“Compensation for veterans with mesothelioma
(1) The Secretary of State must, within two months of the passing of this Act, put in place an armed and reserve forces compensation scheme, through which a person who has served in the armed or reserved forces can claim a lump sum of at least £140,000 in respect of a diffuse mesothelioma diagnosis.(2) The scheme must provide that all persons who have worked in the armed forces and have been diagnosed with diffuse mesothelioma as a result of that employment are eligible to claim the lump sum specified in subsection (1) irrespective of —(a) the date on which they were diagnosed; and(b) whether they are in receipt of a war pension under a separate scheme.(3) In this section, “armed and reserve forces compensation scheme” has the same meaning as in section 1 of the Armed Forces (Pensions and Compensation) Act 2004 (pension and compensation schemes: armed and reserve forces).”
Lord West of Spithead
My Lords, mesothelioma is a most dreadful disease, as we all know—and very difficult to pronounce, if I may say. It is bad enough for a veteran to have it, let alone having to suffer the unfairness of limited compensation compared to his civilian counterpart. What of the armed services covenant?
A campaign has been run by many, not least by my fellow Labour colleagues and the noble Lord, Lord Alton, who I see is sitting in his place. It seems now to have borne fruit: parity of payment for all veteran sufferers now seems to have been agreed. Perhaps the Minister could confirm that this is the case, as no Statement has been made to this effect in the House. The proposals set out in the amendment in the name of the noble Lord, Lord Empey, make sense unless these things are being done by some other means, and I am not sure whether they are.
My last few words relate to the need for much more research into this killer disease and much more emphasis on that. More needs to be done, but, crucially, there needs to be a co-ordination of the results of research, particularly between the four big teaching hospitals that are working in this arena. I am led to understand that some sort of central analysis unit, funded by LIBOR money, is being set up to do this work. Will the noble Earl let me know if this is the case?
Earl Howe
My Lords, without wishing to preclude further debate on this amendment, it may be for the benefit of the Committee if I confirm the announcement made by my ministerial colleague in another place on 29 February. This was that the option of receiving a lump sum of £140,000 will be extended to veterans in receipt of a war pension for diffuse mesothelioma who were diagnosed before 16 December 2015 and also to those who have yet to have a claim accepted. We listened to the views of parliamentarians and ex-service organisations, particularly the Royal British Legion, which commented that the Government had “done the right thing” in announcing these changes to the compensation pay-out.
Lord West of Spithead
My Lords, I thank all those who have spoken. It shows the concern that we all have about this dreadful disease. There has been a lack of understanding about it. The efforts of so many are beginning to make people more aware. I would very much like to be included in the letter of response about the central analysis of research, which the Minister was going to send to the noble Lord, Lord Alton. I am sure he will send it to all Members here, because it would be interesting to know whether that LIBOR funding is available and whether it is going ahead. That would be very useful.
In among all this, this is a most happy outcome for the 60 people who have fallen through the cracks. This is good news and it is so lovely to have unadulterated good news. That so seldom happens. It was urgent, because between four and five of these men die every month. I am glad that this change is happening quickly. It will therefore have an impact and make a real difference. It is in the spirit of the Armed Forces covenant as well. I know that the Minister personally really understands that issue and how important it is. I thank him for that. It is the right result and I congratulate the Government on recognising the justice of the claim and for taking this action. I know that there is still a lot more to be done in other ways, but that is all very good news and I beg leave to withdraw my amendment.
Armed Forces Bill
Lord West of Spithead Excerpts(8 years, 2 months ago)
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Lord West of Spithead (Lab)
My Lords, if I may interject, I have been a president of a court martial board, I have sat on a court martial board and indeed I have been court-martialled, which most people here probably have not. What I wanted to say was that I agree completely with what the Minister has been saying, and it is really important. You could answer the question with the discipline aspect. The knowledge of what instils discipline, and what is important for it, is one of the crucial aspects of this, which makes it different from a case of someone being accused of murder, for example. So much is to do with the application of discipline.
Earl Howe
The noble Lord, as so often, has hit the nail right on the head. What he said encapsulates much of what I have been saying, and I am grateful to him.
Amendment 1 would enable court martial rules to provide that members must be drawn from each and every branch of the armed services. The current law allows for the appointment of members of any of the three services to a court martial panel. Before the 2006 Act, when each of the three services had its own separate system of service discipline, the panel almost always consisted of members of the same service as the accused. The current practice is to appoint lay members, the majority of whom come from the same service as the accused, but this is not set down in law. There is therefore nothing in law to prevent lay members in any particular case being drawn from any branch of the armed services, so I suggest it would not be necessary to amend legislation to achieve the effect required.
The composition of the panel was considered by the House of Commons Select Committee during the passage of the Bill that became the 2006 Act. General Sir Mike Jackson said to the committee at the time:
“For me the default setting would be that the soldier … on the face of it will be more comfortable being tried by members of his own Service”.
The committee considered that where a mixed panel of lay members was appointed, the senior lay member and the majority of members should come from the same service as the accused.
The noble Lord’s Amendment 3, on court martial findings and sentence, would change the law governing decisions of the court martial on findings of guilt or innocence, and sentence. The court martial system allows conviction or acquittal by a simple majority of the lay members of the court martial, with no need for a retrial in the event of a lack of unanimity or a qualified majority.
The judge advocate does not vote on findings of guilt or innocence. In the case of an equality of votes on the finding, the court must acquit the defendant. The lay members are directed, if at all possible, to reach a unanimous verdict, and to decide by a majority only if they cannot all agree. That provides a considerable safeguard against the lay members moving too easily to a majority decision. As the noble Lord, Lord Thomas, indicated, this is a long-established process: the service discipline Acts of the 1950s, which preceded the Armed Forces Act 2006, also provided for majority decisions at court martial. The great advantage of reaching a decision by majority is that it avoids a “hung jury”: there is no need for a retrial in the event of a lack of unanimity or a qualified majority.
The Crown Court process is that unanimity or—with the judge’s permission—a qualified majority is required for any verdict: guilty or not guilty. If unanimity—or a qualified majority—is not achieved, there is a “hung jury”, and this produces a retrial, not an acquittal. Importantly, under the existing court martial process, the accused may be convicted by a simple majority, but he or she may also be acquitted by a simple majority. In the Crown Court, most of a jury may wish to acquit an accused but cannot achieve the necessary unanimity or qualified majority, yet the accused may be retried by a new jury, who may convict.
The court martial process also has the advantage that it allows a decision to be made without it being apparent whether the verdict is unanimous or by majority. As the panel must keep its voting secret and is not required to seek the court’s permission for a majority decision, there are no lingering doubts outside the court about whether an acquittal was correct. It is for these reasons that proposals for unanimous or qualified majority verdicts in the court martial have up to now been rejected.
My noble friend Lord Attlee suggested that we could not show that the current system is satisfactory. The Government have been successful in establishing both in the European Court of Human Rights and in the civilian courts that the court martial system is in principle safe, independent and impartial. The current system for majority verdicts has been considered twice by the Court Martial Appeal Court in the last five years and was on both occasions held to be fair and safe. The Court Martial Appeal Court, which is made up of the same judges as sit in the civilian Court of Appeal, has held that there is no ground for deciding that a verdict by a simple majority of the lay members of a court martial is inherently unfair or unsafe. They noted, among other points, that the overwhelming majority of criminal trials in England and Wales are decided in magistrates’ courts and the process of simple majority verdicts is long established in those courts.
The issue of majority verdicts was raised by Sergeant Blackman—as was referred to by the noble Lord, Lord Thomas—in his appeal against conviction in 2014. He argued that it was discriminatory to apply trial by the court martial rather than trial by jury in the Crown Court because the court martial offered less protection to the accused than jury trial. The Court Martial Appeal Court again held that trial by the court martial on the basis of a simple majority was not unsafe or unfair; moreover it was not discriminatory.
I should add that Amendment 3 would make very different provision in the service system from that in the criminal justice system if it is the noble Lord’s intention that there must be a panel of at least five lay members in all cases in the court martial, even in cases equivalent to those which may be tried in the civilian system by a single magistrate or three lay magistrates, who may make decisions by simple majority. That difference in provision would in one respect be magnified yet further by the amendment tabled by my noble friend Lord Attlee to increase the size of the panel of lay members on court martial cases to 12.
Amendment 3 would also expose the deliberations of the lay members of the court martial. Proposed new subsection (3) would require the president of the lay members to state in open court the number of panel members dissenting where the majority finding is that the defendant is guilty. One important safeguard of the independence of the lay members of a court martial is the confidentiality of their deliberations. The question whether court martial verdicts are unanimous or by majority is not asked or investigated at all. This safeguard is in place to produce a fair trial process. For this reason, the Armed Forces Act 2006 makes provision about offences relating to members of the court martial and their deliberations. It contains provisions which mirror those in the Criminal Justice and Courts Act 2015 which apply to jurors in the Crown Court. Under these provisions, it is an offence for a person intentionally to disclose information about statements made, opinions expressed, arguments advanced or votes cast by members of the court martial for proceedings in the course of their deliberations. It is also an offence to solicit or obtain such information. This is subject to exceptions but these are very limited. For example, the offence is not committed where information is disclosed for the purposes of an investigation into whether an offence of contempt of court has been committed by, or in relation to, a lay member.
In the Government’s view, the confidentiality of the deliberations of lay members should not be compromised unless there is a compelling case for doing so, such as for the purposes of an investigation into whether an offence of contempt of court has been committed. We are not convinced that there is a compelling case for requiring voting figures to be disclosed.
The effect of the proposed new subsection (4) would appear to be to expose whether conviction or acquittal was unanimous or by majority. In our view, it should never be known that a defendant has been acquitted by a majority decision. Consistent with the position which applies with jury verdicts in the Crown Court, we think that it would be wrong in principle for any request to be made of the lay members which identifies an acquittal by a majority where the defendant is acquitted. The acquitted defendant should not be exposed to public ignominy consequent on the recording of the fact that one or more lay members was convinced of his or her guilt. The same arguments may be made in response to my noble friend Lord Attlee’s Amendment 11, which would make provision for academic research into the workings of the board of lay members in court martial cases. We are not, therefore, convinced that there is a compelling case for compromising the confidentiality of the deliberations of lay members by allowing research of the kind proposed by this amendment.
Returning to Amendment 3, another effect of this amendment would be to change the role of the lay members in court martial trials. In response to Amendments 1 and 2, I explained how the role of a lay member in the court martial differs from that of a juror in a Crown Court trial. In the Crown Court, the jury’s role is limited to findings of fact and sentencing is a matter solely for the judge; in the court martial, the lay members and the judge advocate vote on the sentence. In the case of an equality of votes on the sentence, the judge advocate has a casting vote. The judge advocate advises the lay members on the appropriate sentencing guidelines for the offence.
Proposed new subsection (5) in Amendment 3 would change this by making the determination of sentence a matter for the judge advocate alone, although he or she would be required to consult the lay members. We would see that change as an erosion of an important difference between the civilian criminal justice system and the service justice system. The military context and service experience should be considered during sentencing as well as in findings of guilt or innocence. I submit that the input from the board members on sentencing is thus very important.
As I explained earlier, the existing provisions governing sentencing reflect the fact that the court martial is part of an overall system of justice and discipline. I spoke of how all service courts must apply statutory principles set out in the Armed Forces Act 2006 as to the purpose of sentencing. These include “the maintenance of discipline” and “the reduction of service offences”. These principles reflect special aspects relating to the service justice system, which explains why there is direct involvement of the panel in sentencing, and I remind noble Lords of those factors that I listed earlier.
Earl Attlee
My Lords, I am grateful to the Minister for the response to my Amendment 1A. On the point about maintaining discipline, I am not convinced that that would be a problem, especially if the other ranks were no lower than full corporal or equivalent, because they would have a stake in the maintenance of discipline as well. After all, a civilian jury is handling the same problem: they want to discipline other members of society for things that they have done wrong. Therefore, I do not find the maintenance of discipline—
Lord West of Spithead
It is very different from civil society. The whole structure of discipline within the military is, I am afraid, very different. That surely is one of the key points: it is people who really understand discipline, how it is applied and have knowledge of it over many years who are actually making judgments, because most of the cases relate to that disciplinary structure. I know that other amendments are looking at whether courts martial should cover other things, which might be another issue. However, in terms of discipline, civil society is very different from military society.
Earl Attlee
My Lords, I absolutely agree with the noble Lord—I almost said the noble and gallant Lord; he is noble and gallant, but not technically. My slight worry about the amendment proposed by the noble Lord, Lord Thomas, is that a full corporal would be less understanding and perhaps take a much tougher view than an officer. I am not convinced that the noble Lord is wrong on the argument of the maintenance of discipline, but I will leave the main attack to the noble Lord, Lord Thomas of Gresford, because he is far more capable than I am. I beg leave to withdraw my amendment.
Lord Thomas of Gresford
My Lords, I am most grateful to the Minister for his lengthy and very careful response to what I have put forward. I was very amused to learn that rules had been passed that court martial panels may be drawn from across the services. When I proposed that precise amendment to what became the 2006 Act, I was seized by three noble and gallant Lords in the corridor, one of whom said that I should be shot for making such a suggestion.
Lord Thomas of Gresford
I am sure that the noble Lord, Lord West, would have added a keel-hauling or something of that nature.
I am grateful to the noble Lord, Lord Tunnicliffe, for his support for my amendments. No doubt we will have some fruitful discussion on a way forward. I agree with the noble Earl, Lord Attlee, that an investigation into how court martial panels deliberate would be apposite; it is a good suggestion. There are all sorts of problems around it, and if the public do not have confidence in the court martial system, which is what I believe and the thrust of what I am saying—that although I personally have confidence, the public do not—such an investigation would in one way or the other be very good.
However, the noble Earl may have misread my amendments. I am not looking for leniency. I have no reason to suppose that court martial panels that consisted of other ranks would be more lenient; I rather agree with him that they could well be tougher. What such panels would be is more understanding. They would appreciate things more. I know that the Armed Forces regard themselves as a family and I concede to what the noble Lord, Lord West, has said, but there is a gap in understanding between the other ranks and the officers of what motivates people. That is where an extended panel would be useful, helpful and more just. It is not about leniency at all. The noble Earl should not think that I am a particularly lenient person. I have sat as a judge and prosecuted many times, and leniency is certainly not a part of that.
I tend towards the thrust of the noble Earl’s comments, supported by the noble Lord, Lord West, that it is all about discipline. The fact is that if anyone is convicted at court martial of a serious offence, he is out and he loses his pension rights. It is not a question of discipline for a serious offence. As I indicated at the beginning, I have no objection to the court martial system in relation to Sections 1 to 39 of the 2006 Act, which cover mutiny, absence without leave, desertion and issues of that sort. But where I think the court martial system lacks public confidence is when it deals with other criminal offences which are normally dealt with in the Crown Court. The maintenance of discipline is not particularly apposite, in my experience. People who are convicted of serious offences, as I have said, are thrown out.
Many of the Minister’s remarks were addressed to the issue of sentencing. I do not believe that the sentences of the courts martial are particularly wayward, as we have a very good system of judge advocates who assist them in their deliberations. But the noble Earl will know that the current Judge Advocate-General has argued many times—as he did in 2006 before a committee of the House of Commons—that sentencing should be a matter for a professional judge, as judge advocates are, and not left to a panel of officers for whom it may well be their very first meeting with the criminal law in any context. They are not experts. They are appointed to a court martial board—perhaps the noble Lord, Lord West, has more experience of courts martial than most people, from all points of view—but most who sit on a panel do it perhaps once or twice. The president of the court is a more permanent official, of course, but a judge advocate is a professional judge who goes on training course after training course, sits in the Crown Court when not sitting as a judge advocate and has the fullest experience of sentencing and what is appropriate in a particular case. I do not suggest that he should sentence when uninformed himself, nor does the Judge Advocate-General, but that he should consult the members of the panel, listen to their views and take into account the maintenance of discipline, if that is what is required in the case.
Lord Hope of Craighead
Of course we had extraterritorial jurisdiction, but the fact that the crime was committed in Germany was an important factor in deciding the proper course for bringing the case before a tribunal to try the boy for the offence. One has to be careful about the local jurisdiction; I seek to emphasise that point.
Lord West of Spithead
My Lords, I have considerable sympathy for Amendment 4, which stems from my view that I see the composition of the board of courts martial as much more to do with discipline and military things. Clearly with some of these very serious crimes, jurisdiction is very important. I am not clear how that could be clarified to make sure that things do not slip through the net because of it. However, the other aspect is perception. The noble Lord, Lord Thomas of Gresford, talked about public perceptions of courts martial. I think that there is also the perception of the military about the way in which they are put on trial. If we went down this route mitigation would have to be very clearly put, particularly when in what one might loosely call a war zone where there has been fighting and nation building, because the circumstances in which something like the Baha Mousa case happens are different from the normal civilian understanding. We would have to be absolutely certain that we were able to get that sort of proper mitigation into the civil court. However, I have great sympathy with Amendment 4, because some of these things should not generally be tried by court martial nowadays.
Lord Tunnicliffe
My Lords, as I said earlier, I see this debate as being in two parts, of which this is the second part. The development of service law in this country has been going on for several hundred years and we have seen important movements in the past 10 years with the 2006 Act and now with these proposals. I am unsympathetic to what the noble Lord, Lord Thomas of Gresford, proposes in this area, because it goes too deep into the body of military law. There is presumably an argument that you do not need military law on any offence that is covered by an equivalent piece of civil law, but we are not there yet in the minds of either the public or the military. We are on a journey and I think that we are at the right place in that journey, so to carve these offences out of the scope of military law at this point would be wrong. I shall read with great care the speeches that have been made and listen with great care to the Minister’s response. We will ponder on those views but, as a generality, the scope of military law is probably right at this time. I repeat that we should address the courts martial system to make the judgment process analogous but leave the scope substantially as it is.
Baroness Gould of Potternewton (Lab)
My Lords, I support Amendments 5 and 6, which are designed to clarify and reduce levels of rape and sexual assault in the Armed Forces. Fundamentally, I believe that the rights of service men and women are just as deserving of protection as civilians, for whose rights I have campaigned for many years. It is essential that independence and fairness for our troops are at the heart of the military justice system, but the reality is far from that aspiration, and I hope that I will be able to illustrate that.
I repeat the words said only eight months ago by General Sir Nick Carter, Chief of the General Staff, that the Army has,
“an overly sexualised culture in which inappropriate behaviour is deemed acceptable”.
Those words illustrate the problem that many women and men in the Army face. Those words are appreciated, however, as is General Sir Nick Carter’s campaign against rape, with a display of hard-hitting posters that are imaginative, and with messages that are bold, and ensure that all service personnel understand the concept of consent. However, the evidence shows that over the years there has been little improvement, perhaps because the current position in both recording the evidence and the determination of rape and sexual assault is clearly flawed. That situation would be improved by the implementation of both these amendments.
The response to a freedom of information request two years ago showed that in the previous three years military personnel had made more than 200 allegations of rape and other sexual offences against their colleagues. Seventy-five allegations of rape and 150 of sexual assault were made to the Military Police between 2011 and 2013. There were 25 rape allegations in 2013, 24 in 2012 and 26 in 2011—consistent figures throughout. Five servicemen were convicted of rape and 22 of sexual assault. But even getting such information may not be possible in the future if the Government abolish the FoI process, which they seem to be seeking to do.
The 2015 Ministry of Defence report on sexual harassment gives much more detail. It says that women had received unwanted comments about their appearance, body or sexual activities, unwelcome sexual gestures, had been subject to attempts to touch them, and that 10% of the women interviewed had received a request for a sexual relationship. But how accurate are those figures? There are clearly questions about the comprehensiveness and reliability of the data collected, as my noble friend Lord Touhig said. For instance, allegations of sexual assault can be investigated by a commanding officer, the relevant service police force or a local police force. Home Office authorities are not required to record whether an alleged victim or perpetrator of a sexual assault is a serving member of the Armed Forces. This means that the Armed Forces do not possess even basic evidence about the extent of sexual assault or rape within the services. Civilian police forces have to collect and collate such evidence in a consistent and orderly way, so why does this not apply to the military? Without a central register published annually, it is impossible to follow trends and patterns and determine whether improvements are being made. I fail to understand why this proposal might be rejected, not least as the Minister in the Commons said that the system needs to be more robust, as has been said. It would be interesting to know what actions have been taken since that statement was made to set the process going to achieve the aim of making it more robust.
On Amendment 6, a commanding officer has broad discretion to decide whether to investigate allegations of sexual assault or whether to refer them to the relevant police force. The commanding officer has to refer cases in line with the offences listed in the Sexual Offences Act 2003 but, strangely, that legislation explicitly excludes for referral sexual assault, voyeurism and sexual activity in a public lavatory. This means that, if notified of an allegation of sexual assault, a commanding officer is not necessarily required to refer the matter to the police.
Sexual assault covers a wide breadth of sexual acts, some of which may seem less serious to the commanding officer but not necessarily so to the victim, and which, if ignored, may develop into a more serious situation. Commanding officers in the Armed Forces are men and women of skill, professionalism and integrity but that does not mean that they have the same levels of specialist investigatory skills as those who have the necessary professional expertise. It is important that those who investigate, prosecute and manage these processes are professionally trained and have the skills to deal with complex cases and, very often, emotional situations.
Relevant to both the data and the process is the number of victims who do not come forward because they do not wish to be investigated by their commanding officer. Evidence shows that they are discouraged from making a formal written complaint, or that they are told they will be treated better in return for a sexual relationship. One in 10 women who had upsetting experiences indicated that they did not report it because they particularly did not want to report it to their specific commanding officers, having been told by others that it would have an effect on their careers or they could be subjected to negative treatment. That is not a very good background against which to encourage women to take these cases forward.
Finally, I refer to a case that gives an example of the hidden culture in the Armed Forces and illustrates so clearly to me why Amendment 6 is necessary. I have concentrated so far on sexual assaults against women, but Ministry of Defence data following another FoI request reveal that male rape is common in the UK Army. In 2013, three rapes and 22 sexual assaults were carried out against men in the UK military forces. Since then, there have been a further 25 assaults, but these figures relate only to information gathered by the Military Police, meaning that the real numbers could be much higher. The ministry could not say whether anyone had been prosecuted for the assaults disclosed in the latest data.
All this evidence proves what has been known for a very long time: that there is a deep-seated culture, as described by General Sir Carter. Surely it is time that the Government legislate to show that they are genuinely concerned to improve what is a truly dreadful situation. Perhaps the Minister can give an explanation for why the Government have been so reluctant to do so in the past. I hope he will not take the same view today.
Lord West of Spithead
My Lords, I strongly support Amendment 5. In the late 1980s, I was dragged from my destroyer by the First Sea Lord and tasked with doing a study into whether women should serve on the front line at sea. Being an ambitious officer, I went to see the First Sea Lord and asked him what result he wanted from that study—but he told me that I was to do a proper study. I spent six months doing it, and I learned a great deal. At the end of it, I concluded that women could serve in all jobs at sea, that there was no reason why they could not do that on the front line and that it was in the interests of the Navy. I thought that that would ruin my career—my wife said that I could run a well woman clinic if things went really wrong —but in fact it did not affect my career that badly.
What I failed to understand was the level of sexual predation that might result from this. I did talk with other navies around the world but I have say that I did not talk to the Army; it was all naval. I have been really quite shocked by the level of sexual predation which one is aware of now. It is necessary to expose what is happening to make it clear to people that things have to change. It is only by laying down the cases that have happened that this will be thrown into the public eye and the eye of the military, and then action can be taken. I am not so convinced by Amendment 6, but Amendment 5 makes a lot of sense.
Earl Attlee
My Lords, I am grateful to the noble Lord, Lord Touhig, for moving this amendment, which concerns a very serious and important issue. He mentioned Deepcut. I urge all Members of the Committee to get the Blake report on Deepcut, which was commissioned by the last Government, as we may have forgotten the background.
I am not convinced by the new clause proposed in Amendment 5, and I hope that the Minister shares that position. However, I would like to ask the Minister about service police records. We are all aware that there will be serial offenders who are posted from unit to unit. I would even dare to suggest that if a commanding officer knows that someone is “a bit dodgy” for one reason or another, they might rather get rid of them, and so send them off to another unit. Then, that same serviceperson becomes a problem in another unit. If the service police were carefully recording complaints against a serviceman—unit 1 gets a complaint; unit 2 gets a complaint—while it may be only slightly inappropriate conduct, there would be a record so that if something serious happens, and the serviceman already has a record of minor offences, you can be pretty sure that there is a problem. If someone has been serving for 15 years and there is not the slightest suggestion of a problem, you might take a slightly different view. My issue is this: are the service police recording every single complaint against a serviceman? I can assure the Committee that I have seen this in the reserves where we had a problem with a junior officer and it turned out that he had had a problem in another unit as well.
Members of the Committee have suggested that the Armed Forces have a problem. I do not deny that there is a problem, but my question for the Minister is this. Is it a bigger problem in the Armed Forces than it is in the civilian world, such as in industry, for instance?
Lord West of Spithead
I am sorry, but surely that has nothing to do with it. We have to get it right within the Armed Forces, have we not? It is only by exposing it that this can be dealt with. When I did my study, I was shocked at the level of this sort of thing going on in banks. I visited banks and large retail outlets and I was absolutely appalled and shocked by it. I must have been naive being stuck at sea. You might think that sailors are not naive, but my goodness me, it was quite a shock. Surely we have to look at what is right within the military.
Earl Attlee
Once again I absolutely agree with the noble Lord that we have to address our problems and deal with them vigorously. I want just to suggest that we ought to be able to compare how the Armed Forces do with the rest of industry. Although we have a problem that we want to and should deal with, the statistics may not actually be as bad as we think they are. We need to compare. That is not a reason for not doing anything about the problem; far from it.
Amendment 6 seeks to take the matter out of the hands of the commanding officer. I agree with this proposal, although I am at variance with the noble Lord, Lord West, on it. These matters are extremely difficult to determine in terms of what has been going on. As he suggested, commanding officers are not well equipped to deal with them. You might think that someone is a really good person, but then you are disappointed to find out that they are possibly offending in this way, so I do not have a problem with this proposal. I inherited a case of sexual assault and it was exceptionally difficult for me to deal with. I did not have to determine the matter, but I had to manage the aftermath. I heard the two sides of the argument and I was ill equipped to determine it. The Minister should consider Amendment 6 very carefully.
Lord Craig of Radley
My Lords, it was a privilege to put my name to the amendment of the noble and learned Lord, Lord Mackay. I have looked upon it very much as a probing amendment to give the Government an opportunity to indicate how their thinking is going. We have a problem with the Human Rights Act and Armed Forces legislation. Indeed, when the Human Rights Act was debated here in 1998 I drew attention to the potential problems that might arise. My concerns were dismissed then by the noble and learned Lord, the Lord Chancellor. I quote what he said then:
“I urge your Lordships to be of the view that the convention is a flexible instrument. It poses no threat to the effectiveness of the Armed Forces”.—[Official Report, 5/2/98; col. 768.]
Whatever flexibilities the noble and learned Lord had in mind, they have I fear proved to be valueless and ephemeral. Cases against the MoD and individual service personnel affecting our forces on operations overseas have proliferated. Some were settled out of court. Others made the prolonged and tortuous passage up through the courts, with the MoD appealing a couple to the Supreme Court in 2013. The Committee has had a good exposition of what happened in the Supreme Court. It was a thorough and nuanced finding but there was a 4/3 split and they did not really resolve the issue.
Later that year, in a debate led very admirably by the noble Lord, Lord Faulks, I suggested that the Armed Forces Bill before the Committee today would be a suitable vehicle for legislating to ease the problems faced by the MoD and the Armed Forces on operational activity overseas. So, as I made quite clear at Second Reading, I was dismayed to find that no attempt has been made to tackle the problem in this Bill. The Government have had the better part of three years since the Supreme Court judgment to consider what form legislation should take. I have pointed out in debates on this issue that it was not going to go away —it had legs—and that it would be a failure of political leadership not to tackle it.
In recent weeks, the much-heralded Bill of Rights has been mentioned as shortly to be published. Indeed the noble Lord, Lord Faulks, indicated as much in his response to the second Oral Question this afternoon. I thought that the noble Lord also confirmed that it will incorporate legislation to help to resolve the problems created for the Armed Forces by the incompatible legislation that affects them. If so, I very much hope that whatever detailed form the legislation takes, it will introduce further amendment to this Armed Forces Bill when it is enacted. It would be preferable to contain any new legislation within the principal Armed Forces Act, rather than once again having two separate pieces of legislation about the behavioural discipline of the Armed Forces. Indeed, in the debates on the then Human Rights Bill in 1998, I suggested that while the Armed Forces were of course a public body, it was acceptable that they were, and indeed should be, treated separately in legislation. I suggested that any aspects of human rights that were to apply to the Armed Forces should be incorporated into that Armed Forces legislation. If this approach had been adopted then, we might not be facing the present difficulties.
The comments of the noble Lord, Lord Faulks, on the second Oral Question this afternoon seemed to imply that the clauses affecting the Armed Forces were already drafted. If so, surely the Bill before the Committee this afternoon could be an appropriate vehicle for getting this legislation enacted, particularly if the Bill of Rights is to be delayed, and may, as a whole, have some considerable difficulty in reaching the statute book. Has this been considered? If so, can we expect government amendments to this Bill on Report?
Lord West of Spithead
My Lords, I thank the noble and learned Lord, Lord Mackay of Clashfern, for laying out so clearly exactly where this stands, although I have to say that the result does not leave things particularly clear for a number of reasons which he has explained. I will not reiterate what I said in my speech at Second Reading, where I went into the detail of this complex issue, but suffice it to say that the decision by the Supreme Court in the case of Smith and others v Ministry of Defence has, without doubt, raised the spectre of military personnel who take a decision in the heat of action being taken to court to face a claim under the Human Rights Act. As I say, it has raised that spectre. That is clearly wrong and I do not believe that it is what was intended. Indeed, mention has been made of how the case is not against those involved, but the result is that the spectre has arisen. I feel very strongly about this. I have been in action and have taken decisions that resulted in men dying. I believe that I took the right decisions, but it would be wrong for one then to have to go through the courts to explain all of that.
Of course these issues are highly complex, and that is part of the problem. The cases that were being considered looked at a number of different scenarios concerning things like the definition of combat operations, peacekeeping operations within Iraq, the issue of procurement, issues around the tanks and Snatch Land Rovers operating in a different context and being hit by IEDs. The sheer complexity has caused part of the problem. It has been said that some of these matters need to be investigated by the civil courts. That has dragged in the possibility of people fully in action being taken to the courts later for decisions they took, which I do not believe should be looked at in civilian courts. They should be covered by combat immunity.
I shall reiterate what I said before. It is a nonsense that one can use human rights legislation to drag military leaders through the courts for decisions made in war because, in combat, men and women kill and are killed on a regular basis fighting for their country. One has to wonder what exactly the right to life is when you are fighting. You have to make people stand up and do things where you know they are likely to be killed. I have done that. What is the right to life in those circumstances? It is very difficult, and I do not believe that the judgment was making that point, but that could be the result of what has been done.
As has been said, this is a probing amendment. I love it because it is nice and simple. Being a simple sailor, I love a simple amendment, but the complexity is far too great and I know that the noble and learned Lord, Lord Mackay, appreciates that. He has tabled it to probe the Government and find out. We need to know how the Government are going to take this forward. How will we clarify and resolve this position, because it really does need to be resolved? There is certainly concern in the military about this, and it spreads far and wide. There is also, I have to say, concern at times about fighting to win if you feel that some sort of legislative action is going to be taken against you. It would be a dreadful thing if our Armed Forces were to feel constrained.
What I would say to the noble Earl is this: we need an answer as to how this is going to be taken forward. Will it be done in the context of this Bill, as was mentioned by the noble and gallant Lord, Lord Craig of Radley, or will we do it in other legislation that is going through? How can we take it forward, because I do not believe that it can be left as it is? There is too much uncertainty. I know that it was not what the judgment aimed to do, but the uncertainty is there, and that is wrong. We have to clarify this.
Lord West of Spithead
My fear is that this judgment has opened up the spectre of things to be investigated by the civil courts. That is why this comes into train, although I know that they were aiming at high-level procurement.
I have to say as an aside that to start with in a war you always have to fight with the equipment you have got. Almost inevitably, certainly in the two wars that I have been in, the equipment that we had at the time was not what I would have used in that situation, but we had to get on with it. I bloody well—sorry, I knew that the equipment was not up to that task. I knew, for example, that I had put my ship in a position where my anti-aircraft capability would not work, but I was destroying an airfield and supporting Special Forces operations so I had to be there. Still, I knew jolly well that if there were heavy air attacks I would suffer; indeed there were, and I was sunk. I am concerned that something could happen in a court where someone says, “Why did West do that when he knew jolly well that the equipment was not up to it?”, and that is wrong. That is the point that I am making: there could be an unintended consequence. That is what I am nervous about.
Lord Tunnicliffe
I wonder if the noble and learned Lord, Lord Hope, would let me speak before him because I intend to quote him at some length and he can correct any mistakes I make. I make it clear that the Opposition would not support this amendment as set out. I am not talking about little technicalities about wording; I am talking about an erosion of the Human Rights Act. We believe that that is a proper and admirable piece of legislation and that its retention is important. No doubt this will be the basis of a major battle between the parties in the weeks to come when the legislation is published.
I turn to the specific area of the judgment. Before Second Reading, I had not heard of Smith and others v Ministry of Defence. I googled it, thinking, “This will give me the information”, only to discover that the judgment was 72 pages and 188 paragraphs long. At the very moment when I had a sense of doom, I noticed that it had been given by the noble and learned Lord, Lord Hope, whose office is some 50 metres from mine, so I tried to save myself some effort by going to see him, and I thank him for the briefing he gave me.
I looked through the 72 pages to get a wider flavour of the judgment. I will concentrate solely on the Challenger 2 event. The Snatch Land Rover issue is complicated by the fact that it was not formally a combat situation but a peacekeeping one, so while it is important to the debate, it is capable of being part a much wider debate. In my view, however, the tone of the judgment on the Challenger 2 event is straightforward. The noble and learned Lord, Lord Mackay, has already quoted paragraph 76 of the judgment, but if the Committee will forgive me I shall quote a few more paragraphs. Paragraph 82 states:
“The Challenger claims proceed on the basis that there is no common law liability for negligence in respect of acts or omissions on the part of those who are actually engaged in armed combat”.
That is a pretty flat statement. It continues:
“So it has not been suggested that Lt Pinkstone or anyone else in the Black Watch battle group was negligent. Nor, as his decision to fire was taken during combat, would it have been appropriate to do so. The Challenger claimants concentrate instead on an alleged failure to ensure that the claimants’ tank and the tanks of the battle group that fired on it were properly equipped with technology and equipment that would have prevented the incident, and an alleged failure to ensure that soldiers were provided with adequate recognition training before they were deployed and also in theatre. Their case is founded entirely on failings in training and procurement”.
Its final sentence says that:
“The Ellis claim at common law also raises issues about procurement”.
If we delve further into the document, we get what is in a sense the substance of the ruling. Paragraph 95 says that:
“The same point can be made about the time when the failures are alleged to have taken place in the Challenger claimants’ case. At the stage when men are being trained, whether pre-deployment or in theatre, or decisions are being made about the fitting of equipment to tanks or other fighting vehicles, there is time to think things through, to plan and to exercise judgment. These activities are sufficiently far removed from the pressures and risks of active operations against the enemy for it to not to be unreasonable to expect a duty of care to be exercised, so long as the standard of care that is imposed has regard to the nature of these activities and to their circumstances. For this reason I would hold that the Challenger claims are not within the scope of the doctrine”—
that is, combat immunity—
“that they should not be struck out on this ground and that the MOD should not be permitted, in the case of these claims, to maintain this argument”.
Its argument was to rule that it should be struck out through the doctrine of combat immunity.
The tone of the whole judgment is summed up in paragraph 100 where the noble and learned Lord, Lord Hope, says:
“The sad fact is that, while members of the armed forces on active service can be given some measure of protection against death and injury, the nature of the job they do means that this can never be complete. They deserve our respect because they are willing to face these risks in the national interest, and the law will always attach importance to the protection of life and physical safety. But it is of paramount importance that the work that the armed services do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things … go wrong. The court must be especially careful, in their case, to have regard to the public interest, to the unpredictable nature of armed conflict and to the inevitable risks that it gives rise to when it is striking the balance as to what is fair, just and reasonable”.
In other words, over and over again in the findings as I read them—as an amateur and not as a general, although I was made acting pilot officer, and having never been a lawyer, although I was a great employer of lawyers—the noble and learned Lord seems to go out of his way to express that this is not about combat. It is about when it is reasonable and practical to do so that the MoD has a duty of care.
I come back to my question. Where is the harm in sustaining the Human Rights Act as it has been used in this case, and what are the implications? The implications are that it says that simply because the process eventually leads to combat, the Ministry of Defence cannot use the doctrine of combat immunity to avoid its duty of care. Where it is reasonable to exercise its duty of care, it has a duty to do that.
Also in my career, I worked for the Ministry of Defence as a non-executive director of defence and equipment support. As such, I was asked to look into the safety of equipment in the MoD, and I have to say that it was variable. In some areas it did not meet the highest civil standard. I do not mean silly standards; I mean the general duty that you have in civil law to reduce risk to as low as is reasonably practicable. Civil law does not say that you cannot do dangerous things and no one is suggesting that the military should not, but where you have an opportunity to reduce risk, you have a duty to take it. That cannot be an unreasonable duty. My reading of the judgment is that that is where the duty remains: where it is practicable it should be exercised, but where it is impractical, specifically in combat, then a court should not regard it.
The area of harm that does exist is what in other circumstances people would call the chill factor. The Health and Safety at Work Act has been around for so long now that most industries that are subject to it, whatever you read in the press, are mature enough to live with it. However, there are still things like the presumption of guilt—the chill factor that will stop executives from doing their job. In fact people get over it and get used to it, but if it is influencing in combat the decisions that soldiers, sailors and airmen are making, then that is wrong. That is a challenge for the MoD, not a challenge to change the law but in its training, in its teaching of the doctrine and in ensuring that the people who are making decisions fully understand that this ruling does not relate to combat and that they should continue to make their combat decisions as they have been taught to, within the rules of what I loosely call the Geneva convention, and get on with the job.
We will not support this amendment. If it comes up on Report we will oppose it, or in trying to dilute the Human Rights Act, we will oppose it.
Lord West of Spithead
Just before my noble friend sits down, I would like to get clarification. Is he saying that combat immunity trumps the Human Rights Act? In a European Court judgment on human rights, combat immunity will trump it—is that what is being said? That does not appear to be the case, which is one of the worries that I have with what is going on. The French and another nation, for example, have both taken their military out of that and said that they are not liable to the Human Rights Act in action. However, my noble friend seems to be saying that combat immunity trumps the Act, so this is not a problem that we should be discussing. Is that correct?
Lord Tunnicliffe
One of the reasons why I spoke when I did was so that there could be a summing-up of the law by the noble and learned Lord, Lord Hope. My understanding of the judgment is that there is no question that the Human Rights Act applies to military personnel when they are serving overseas. It was a unanimous decision of the court and all seven judges agreed that it was true. What they then asked was, “What does the Human Rights Act require?”. People really should read the Human Rights Act. It is about three or four pages long and is a brilliant document. It refers to the European Convention on Human Rights, which is also well worth every person in our legislature having a read of. The Act is an extremely balanced document, virtually every provision of which expects you to behave reasonably.
What the court said, and I précis, is that the duty in the Human Rights Act to have care for those you are responsible for—the right to life—has to be interpreted reasonably, and the doctrine of the common law right of combat immunity holds good in a combat situation. Where there is proper opportunity to consider actions that may reduce risk then you have a duty of care to consider those actions, but not in combat and in the heat of battle.
Lord West of Spithead
My noble friend’s exposition explains exactly my concerns about what is going on because it is not at all clear. That is why we need this in order to have the issue clarified. What my noble friend has said has actually left me totally confused as a military commander, so we need to have this clarified. That is why I believe that this is important.
Lord Hope of Craighead
My Lords, I wonder whether I could say a word. First, I apologise for the fact that due to other business I was not able to hear the speech and analysis of the noble and learned Lord, Lord Mackay of Clashfern, although he did show me in advance the paper from which much of his speech was drawn. I also expressed my regret to the Minister, the noble Earl, Lord Howe, that I have other business to attend to and might not be able to be here all the time.
I should like to say a few words because I feel a heavy weight of responsibility on my shoulders; I had the responsibility of writing the judgment. It covered an enormous amount of ground. I was not responsible for all the paragraphs because other people wrote as well. The starting point of the analysis was what to make of developments in the European court in Strasbourg, which has been expanding the jurisdiction in a way that I do not think judges in this country entirely welcome. It has always been understood that the European convention applies to our embassies abroad; that is accepted and has never been in doubt.
Gradually the thinking has developed so that, for example, when in Iraq the military set up a detention centre, bringing local people in to be detained and examined there, they had the protection of the human rights convention—the right not to be tortured, the right to life and so on—because we had control over what happens within the detention centres that we set up. What is different about the law which we were trying to analyse and explain is the extension of that jurisdiction, as I think the noble and learned Lord, Lord Mackay, explained, to members of the Armed Forces serving outside the territory—not just outside the territory of the signatories to the European convention itself but outside the territory over which they have control. We are now contemplating Article 2 applying to areas where the Army are not in control of events but nevertheless have some duty, apparently, or have the protection under Article 2. That applies both ways. The amendment by the noble and learned Lord, Lord Mackay, could in fact be read as applying to the need to be protected under Article 2 as well as the right to immunity from challenge under it for things done to other people.
What I was attempting to do, having secured the agreement of all my colleagues on my analysis, was that we had to recognise that Article 2 applied outside the territory, so we had to explain what that meant. It was not an easy task. One of the problems in trying to get across to people like the noble Lord, Lord West, and others was that we were not dealing with a case that put in front of us the kind of situation that he was faced with. They did not bring a case against the commander in the tank or anyone who was actually on the ground that they were in some way subject to criticism under Article 2 or subject to a claim for negligence at common law. I rather wish they had, because we would certainly have struck it out. We would have made it absolutely plain that people in that position, the heat of battle, are not to be exposed to criticism or to litigation because of things done in those circumstances. Decisions have to be taken for all sorts of reasons and it is quite impossible for a court to analyse them as to whether they were properly taken.
All I could do in my judgment—the noble Lord, Lord Tunnicliffe, has been very generous to me by setting out the various paragraphs in which I tried to do it—was to make it as plain as I could that there is an area that the courts will not go into. I did not secure the agreement of my colleagues on what to do about the cases in front of us. There was a four to three majority in favour of allowing the Challenger cases to go to trial to find out more about the facts before a decision was taken, and there was a five to two majority about the Snatch Land Rover cases that they should go to trial as well. There can be different views about this. The advantage of more facts was in fairness to the families that what was actually going on was absolutely clear before a final decision was taken. However, I made it as clear as I could that those who were taking the cases to trial should not think they were going to succeed. They had to get over the hurdles, which I explained in the various parts of my judgments. What the result of these cases will be, I simply do not know.
I cannot add to my judgment; that is not a position that a judge can ever enjoy. My judgment has to speak for itself. All I can say is that I would not change any of the words that I see when I read it over and over again. It is a difficult problem because one has to balance the need for the military to conduct operations without impediment, whether in wartime or peacetime, with, at the same time, the interests of the servicemen and their families. The noble Lords, Lord Thomas of Gresford and Lord Tunnicliffe, both illustrated the other side of the balance. I am not suggesting that legislation should not be resorted to, if the Government think that they can improve on what I attempted to say in Smith. Lord Bingham of Cornhill, one of the greatest judges that we have had in recent times, used to say that the law is made not by scoring boundaries by sixes but that you develop the law in singles. In a way, Smith was an attempt to face up to a problem and explain under modern circumstances what could be made of it. I do not claim that we achieved perfection by any means. I am deeply sorry that it has caused such alarm among senior members of the military for reasons that I certainly did not intend. I cannot do anything about that, except to apologise to them and hope they understand what I was trying to say.
The task that the Minister faces is the very difficult one of trying to analyse exactly how to express in legislation the need for protection of the individuals serving in our interest and, at the same time, giving freedom to those who have to take the decisions not to be impeded in a way that would defeat our national interest.
There is only one other point I wish to make, which I think the noble and learned Lord, Lord Mackay, hinted at in his speech. Any legislation will have to stand up to scrutiny under the European convention itself. It has to be compatible with the convention rights. However, I think that the noble and learned Lord was pointing out the direction in which the Government could go by saying that there is a margin of appreciation, which gives quite a latitude to the Government in deciding how to frame legislation. In a way, I was trying to explain in paragraph 76 that and how the margin of appreciation might lie. Not everyone agreed with me, and perhaps the Minister can improve on what I was trying to say.
Before I sit down, I repeat my apology to the senior officers in the military who think that that are being in some way targeted by what I said. That was certainly not my intention and I did the very best I could to make it clear that they were not to be open to that kind of criticism.
Lord West of Spithead
I certainly do not have the view that that was the aim of the judgment by the noble and learned Lord. However, because he was not able to make a judgment on a case of someone involved in action, this spectre has appeared. It is unfortunate that a judgment was not able to be made. Therefore, there is the spectre of something being done. I generally do not like legislation, but there is merit in trying to achieve something in legislation. I have read the whole judgment and had a nice chat with the noble and learned Lord at lunchtime about the issue—that is one of the great joys of being in this lovely building. I quite understand it, but that is my worry.
Lord Hope of Craighead
I am very grateful to the noble Lord. One cannot invent cases. The trouble with the courts is that you simply have to take what you are given. That is the real problem, which I think the noble Lord correctly identified.
Lord Mackay of Clashfern
My Lords, it was never my intention to press this amendment. It was simply intended to raise these issues, which are extremely complicated. For example, in the case of Smith, Lord Mance pointed out that it is alleged that the major under whose command the firing tank was operating was told of the situation, and that there was a question in relation to the Snatch claims about whether the commander on the ground had chosen the particular vehicle that was involved in the incident. Although there is no question of anyone who was serving being involved in the claim against him, there is difficulty in finding out whether or not there has been a breach—for example, in relation to procurement or supply. You have to investigate the facts on the ground and the decisions of the commanders.
Perhaps I may take the example that the noble Lord, Lord West, gave of his own situation in the Falklands. My understanding is that, if there were a claim in relation to that by someone who had been severely injured and if the application of these principles that are being adumbrated came into play, the question of whether, for example, the anti-aircraft provision on the ship was adequate might have depended on where it was thought the ship would have gone. As I understand it, the difficulty was that when the ship got very closely inshore, the anti-aircraft provision was not adequate. If the ministry were being sued for failure to provide better anti-aircraft equipment—I am thinking of this as a possible scenario—there might be a question as to whether, in the circumstances of the engagement, the commander of the ship was required to go to a place where the anti-aircraft guns would not work properly or whether he could have operated effectively somewhere else. I do not imagine for a minute—
Lord West of Spithead
Perhaps I may interject for a moment. I could not possibly have gone anywhere else. I just want to make that clear.
Armed Forces Bill
Lord West of Spithead Excerpts(8 years, 3 months ago)
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Lord West of Spithead (Lab)
My Lords, military justice has come a very long way since the days—as happened to me many years ago at my captain’s table, waiting to dispense justice—when I heard my regulating petty officer order, “Wheel the guilty bastard in”.
In general, the Bill is uncontentious. Indeed, I think it resolves a number of anomalies. I know that my noble friend Lord Touhig has a number of areas which he might like to see expanded or tightened up and he will talk to those later. There are, however, two issues which I wish to raise and I have given the noble Earl prior notice of my concerns. I thank him for the briefing he gave to all of us on the Bill beforehand.
The first regards the issue of mesothelioma. After considerable pressure from the noble Lord, Lord Alton, and my Labour colleagues, the Government have taken action and announced that veterans exposed to asbestos during their military service and diagnosed with mesothelioma on or after 16 December 2015 will receive compensation. That includes veterans exposed before 1987, ensuring equality with that compensation available to all civilians. The Government are to be congratulated on that. One has to remember that none of us knew that it was dangerous. I can remember having snowball fights with asbestos in the boiler room of HMS “Albion” because we did not know that it was so dangerous.
But the announcement ignores a small number of sufferers who do not meet the qualifying dates. I know that the noble Earl—the Minister—is unhappy with what seems to go against the spirit of the Armed Forces covenant. Action needs to be taken quickly because people are dying as we speak. An article in this morning’s Independent puts it very succinctly: mesothelioma patients survive typically for one year following their diagnosis, so about 25% of those diagnosed will die every three months.
The Government need to act with alacrity and contact the afflicted veterans and their widows and families. Compensation should be available following the precedent of the mineworkers’ scheme for chest diseases. More than three months ago, the Prime Minister at PMQs undertook to look at this matter. I ask the Minister: can we now resolve this issue once and for all? I believe that it is the right thing to do.
My next concern stems from the Supreme Court’s decision of 2013 in the case of Smith and others v the Ministry of Defence, in which, by a majority of four to three, the court concluded that a claim should go to trial so that a judge could decide on the evidence whether it was covered by the doctrine of combat immunity or could give rise to a claim based on the Human Rights Act. The judgment has, not surprisingly, raised considerable concern in the military and the noble and gallant Lord, Lord Craig of Radley, asked in a Question on 25 June 2013 for reassurance about the relationship between human rights legislation and military law in war. The noble Lord, Lord Astor of Hever—the government Minister at the time—did not give the cast-iron reassurance that one would have expected.
The noble Lord, Lord Faulks, in the Armed Forces legal challenge Motion of 7 November 2013, said that he was driven to agree with the noble and learned Lord, Lord Mance, who gave a minority judgment in Smith. The noble and learned Lord, Lord Mance, said that the approach taken by the majority,
“will in my view make extensive litigation almost inevitable after, as well as quite possibly during and even before, any active service operations undertaken by the British Army. It is likely to lead to the judicialisation of war, in sharp contrast with Stark J’s dictum in Shaw Savill (1940) that ‘war cannot be controlled or conducted by judicial tribunals’”.
The noble and learned Lord, Lord Mance, added:
“To offer as a panacea ... that courts should be very cautious about accepting such claims is to acknowledge the problem, but to offer no real solution”.
The noble Lord, Lord Faulks, stated:
“I have real difficulty in understanding what Article 2, the ‘Right to Life’, really means in the context of armed conflict. There is something strangely poignant when the mother of a soldier says to the press, after the decision in Smith, ‘Now all those soldiers have the right to life’. Perhaps that is the effect on the public’s mind of the decision”.—[Official Report, 7/11/13; cols. 393-94.]
I have to say that I share the views of both the noble and learned Lord and the noble Lord.
Thirty-four years ago this May, my ship was bombed and sunk during the amphibious landings in the Falkland Islands. I knew that my anti-aircraft armament was insufficient to counter air attacks so close against land. But it is the duty of military men to fight the war they are in with the equipment they have. The Smith judgment could see me taken to court for taking the correct military decision. This cannot be right.
It is total nonsense that one can use human rights legislation to drag military leaders through the courts for decisions made in war. In combat, men kill and are killed on a regular basis fighting for their country. Civilian norms cannot possibly apply. Yet there is a growing tendency, particularly in the European courts, to make judgments as if events on the battlefield were taking place in the halcyon days of peace.
It is not just the pernicious effect on the individual. In 2013, the Policy Exchange think tank produced a study entitled The Fog of Law, which showed clearly that such legal mission creep could paralyse the effectiveness of the military. In simple terms, our military will cease being able to win wars for us.
If health and safety at work were always to prevail, our military would be unable to fight. In combat, a sailor, soldier or airman might be ordered to take action that could result in virtually certain death. On the battlefield the right to life is not certain. I remain concerned about a possible wave of litigation and the impact it could have on our people and our military effectiveness. Parliament should intervene, and I ask the Minister: what can be done to stop the pernicious effect of this judgment and the pressures from the European Court of Human Rights?
Perhaps something can be done in this Bill. The noble and learned Lord, Lord Mackay of Clashfern, intends to put down an amendment. He asked me to mention this. He will propose a clause that says something along the lines of, “The Human Rights Act 1998 will apply to a conflict operation in time of war only to the extent that is consistent with the provisions of the Geneva Convention”. The amendment is with the Public Bills Office at the moment. I would support it. If it is not in the Bill, I ask the Minister where such legislation can be enacted. How do the Government intend to get us out of this mess?
Earl Howe
My Lords, as I said, and I hope the noble Lord will agree, it is very important that we get this right. I was reassured by the comments of the noble and learned Lord, Lord Walker of Gestingthorpe, who said he did not feel personally that this was the right Bill in which to enact any changes. I am as eager as the noble Lord, Lord Bilimoria, to see this matter sorted out and I have no doubt that we can return to it in Committee—in fact, I think it would be useful to do so—but I am not yet persuaded that we are in the right place to legislate in the time available to us for the Bill.
The vast majority of UK service personnel have conducted themselves highly professionally and have acted in accordance with policy and legal obligations. However, in the context of the work done by the Iraq Historic Allegations Team, or IHAT, which has been mentioned by a number of noble Lords, the law requires that allegations that crimes have been committed by members of the UK forces should be investigated. In our view, the IHAT is necessary, given the unprecedented number of allegations. Having this independent investigative body has enabled us to defeat the claimants’ attempt to persuade the court to order a single public inquiry, which would have taken many years and costed an estimated £200 million. The IHAT investigations can be completed more quickly and cheaply, ending sooner the uncertainty faced by service personnel.
It is true that the IHAT’s investigations have not yet resulted in any prosecutions. However, it has completed a number of investigations. The lack of prosecutions is because in some cases the evidence showed that no criminal offence was committed, while in others the evidence did not meet the domestic test for bringing a prosecution. It has taken a long time because it is far more difficult to carry out investigations into events in Iraq then events in England. Witnesses are often difficult to locate and to interview. The solicitors representing those claimants have also been extremely unco-operative, even though they called the investigations in the first place. I can assure the House that the IHAT is getting on with its job as promptly and professionally as it can. I urge the House not to interpret the absence of any measures on this in this Bill as an indication of our intent to do something. Work is in hand and we will set out proposals as soon as we are able.
Lord West of Spithead
Will the Minister say something about the firms, one of which, Leigh Day, has, I think, gone through the Solicitors Regulation Authority already, and PIL? Where do we stand in terms of what has been going on in Iraq with what is loosely termed “ambulance chasing”?
Earl Howe
These are matters currently under scrutiny. The firms that the noble Lord mentioned are, I understand, being quizzed by the regulatory authority for the solicitors’ profession. I am not aware of the outcome of those proceedings, but the noble Lord is right to pinpoint the issue of the way in which those firms received their instructions in the first place. That is a matter that we are as keen to get to the bottom of as he is.
Lord West of Spithead
I am sorry to intervene. That sounds very good news but I stress again that three to five people are dying each week. That is the only point I make.
Earl Howe
That is a very pertinent point to make and the Government are fully aware of the need to make speed as far as we can.
The right reverend Prelate the Bishop of Portsmouth, my noble friends Lady Hodgson and Lady Scott, and the noble Lords, Lord Ramsbotham and Lord Judd, all referred to the importance of service families. The families of our Armed Forces personnel play a vital role in enabling them to do the job that they do, for which the Government are extremely grateful. We have already taken a number of important steps to that end, but, following feedback, we have started to develop a new UK Armed Forces family strategy to review and improve the support we provide to families. That will be launched by the end of 2016. I could say a huge amount on the topics covered by my noble friend Lady Hodgson, especially on housing and veterans’ mental health, but the key question she posed, which I will briefly address, is how well we think the covenant is working.
At the start of the year, we consulted all three single services to understand how they perceived they were disadvantaged. The result has been a comprehensive assessment of delivery in the five key areas of healthcare, local services, spouse employment, education and commercial support. We have also undertaken a challenging package of work to check that our processes and procedures are working. The results were clear: the covenant is working but we need to make it clearer and easier for members of the Armed Forces community to access the support that is available, and delivery is not uniform. We are also aware that we need a mechanism to identify and address localised problems. Better metrics will help and for the first time the Armed Forces covenant annual report includes assessments of our performance in a number of areas. But we also need to be able to measure how the covenant is working at a local level, so the Ministry of Defence will continue to work with other government departments and the devolved Administrations and relevant charities to identify and develop relevant data.
I hope the noble and learned Lord, Lord Brown, and the noble Baroness, Lady Jolly, will forgive me for not addressing the points they made about the Armed Forces Compensation Scheme. As time is short, I will write to them on that. I would, however, like to make two points in response to the noble Lord, Lord Ramsbotham, who indicated that the MoD has no clout with other departments and that the covenant is in danger of fading from the public eye. First, this year the Prime Minister will personally take the helm of the Home Affairs (Armed Forces Covenant) Sub-Committee and ensure that departments work together effectively. Secondly, the Government have committed to a £10 million annual fund in perpetuity to support delivery of the covenant. The existence of that fund will surely keep it in the public eye.
Vanguard Submarine Replacement
Lord West of Spithead Excerpts(8 years, 3 months ago)
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Lord West of Spithead
To ask Her Majesty’s Government what is the planned timescale from start of fabrication to commissioning of the first Successor Vanguard replacement submarine, and how much will have been spent on designs, long lead and other items of the total programme, including upgrade to Faslane Naval Base, by April.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, I regret that I must withhold planned build times, as they relate to the formation of government policy. Although the department will consider a number of planning assumptions for build times when conducting concept and assessment studies on projects, build times are not confirmed until projects are approved. Information on the annual spend on the programme is updated each year in the successor annual report to Parliament, which is due to be published this year.
Lord West of Spithead (Lab)
My Lords, I thank the noble Earl for that rather disappointing Answer. If one digs around in all the documentation that has been produced, it is quite clear that the build time for the first successor submarine will be something like twice as long as it was for the first of the Vanguard class. There was no real answer on the costs but, again, one has from open source the fact that almost £4 billion has either been spent or is committed to be spent already.
I know that the noble Earl understands how crucial the replacement of the submarines and the maintenance of the deterrent are to the security of our nation, yet the decision which has to be made in the other place is being delayed and delayed. It could have been made at any time since last November. I know that it is fun to watch Labour wriggling in anguish, and that having cartoons such as that in the Times, with pictures of Spitfires and Fokkers—I hasten to add that that is a type of aeroplane, in case people get confused—is very amusing, but this is too important for scoring party-political points. The British public, for whom I have great respect, understand that and will not be impressed.
Has there been a ministerial direction to the Permanent Secretary in the Ministry of Defence authorising him to spend, so far, £4 billion, which will grow and grow, when he knows that a decision will be taken in the House of Commons about whether it should go ahead?
Earl Howe
My Lords, I have no wish to score party-political points on a matter as serious as this. The noble Lord may remember that Parliament voted in 2007 to support the programme to replace the Vanguard-class submarines. That authorised the investment in the programme, including the design work and the long leads. This is the stage we are at now. If we had not commenced the work when we did, it would not have been possible to design and construct the successor submarines before the Vanguard class left service. We are moving ahead with all speed. We are committed to a parliamentary vote because it is only right and proper to give the democratically elected Chamber of Parliament the opportunity to endorse the principle of the deterrent.
Syria: Brimstone Missiles
Lord West of Spithead Excerpts(8 years, 3 months ago)
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The Lord Privy Seal (Baroness Stowell of Beeston) (Con)
My Lords, we have not yet heard from the Conservative Benches.
Lord West of Spithead
My Lords, I apologise to the noble Lord, Lord Hamilton, for not giving way. The Minister will be aware that a number of Syrian refugees got into the sovereign base area on Cyprus where our air attacks go from without being detected. Can he assure the House that security there has been tightened up? Clearly there is huge vulnerability to terrorists trying to get at our aircraft and our aircrew before they can be in the air being looked after properly.