Afghan Interpreters: UK Relocation

Lord Lancaster of Kimbolton Excerpts

Tuesday 6th July 2021 Lords Chamber

[Baroness Goldie (Con)]

I thank the noble Baroness for her question. I also thank her for her continuing interest in this issue. As she said, a relocation has already taken place. When I use the phrases “case-by-case basis” and “exceptionally compelling and compassionate circumstances”, these are not empty words because I can tell the noble Baroness by way of reassurance that we are currently investigating a request from another third country; however, for reasons of security, I cannot provide her with more specific information. What I can say is that there is easy access—I checked this out for myself this morning by going online and on to the government website—to the scheme for those who may be in third countries. They can get advice on an online advice link and a telephone number is also provided. We are doing everything we possibly can to facilitate the provision of information.

[Lord Lancaster of Kimbolton (Con)]

My Lords, much of the progress that has been made on this cause is down to the championship of the noble Baroness, Lady Coussins, and the noble and gallant Lord, Lord Stirrup. I acknowledge that. Equally, I am delighted that Ben Wallace, the Secretary of State for Defence, has committed not only to speeding up the repatriation process but to widening the criteria. However, our duty of care does not end when the interpreters arrive in the United Kingdom. Can my noble friend the Minister simply confirm not only that appropriate accommodation will be found for them but that this can be done without a detrimental impact on the availability for our service families?

[Baroness Goldie (Con)]

Yes, I can reassure my noble friend. The leasing of MoD houses to local authorities to assist the Afghan families is a short-term expediency until appropriate properties for longer-term resettlement can be found. From the point of view of the supply of service families accommodation to service families, there should be no effect because the houses that have been identified to local authorities for this provision are surplus to the MoD’s present requirement. They are excess stock that would otherwise have been disposed of and are not required in the short term.

Secret Documents

Lord Lancaster of Kimbolton Excerpts

Wednesday 30th June 2021 Lords Chamber

[Baroness Goldie (Con)]

It is within the rules to remove documents from the building in certain limited circumstances, so long as they are recorded and secured in the appropriate fashion. In short, as I indicated to the noble Lord, Lord Coaker, there are policies and procedures in place that allow for the removal of classified information. It will be for the investigation team to determine whether these procedures were followed correctly.

[Lord Lancaster of Kimbolton (Con)]

This was indeed an important security breach and really quite concerning, but we bandy the word “secret” around without necessarily understanding what it means. There are different levels of classification, of which “secret” is just one. For example, “UK eyes only” is not a classification; it is a national caveat. However, if it genuinely was a secret document, why did it leave the building when it never should have? Does that imply that we should make this inquiry wider, looking at what exactly the procedures are, to ensure that this really does not happen again?

[Baroness Goldie (Con)]

The loss of MoD documents of this classification is extremely rare and I reassure my noble friend that there has not been such a loss within the last 18 months. Despite that, we take the matter very seriously. We have launched a full and thorough investigation and will look at the actions of individuals, as well as the procedures, policies and processes in place. I reassure your Lordships that any recommendations or lessons identified by the investigation will be considered as a matter of urgency.

Defence: Continuous At-sea Deterrence

Lord Lancaster of Kimbolton Excerpts

Wednesday 23rd June 2021 Lords Chamber

[Baroness Goldie (Con)]

It is not a new royal yacht; it is a new national flagship. I think that is a very good thing, if I must make my opinion clear. The noble Baroness is correct that the MoD will be responsible for the initial cost of taking the flagship through the procurement process, but the source of government funding for the rest of the project is still to be determined. To the cynics I would say: this ship will have an important national security and foreign policy function. It is not a warship, and its primary role will be to promote trade and protect the nation’s economic security.

[Lord Lancaster of Kimbolton (Con)]

My Lords, if our nuclear deterrent is to be credible, it must also be viable. My noble friend mentioned two aspects of that viability—the continuous at-sea deterrent and having a suitable number of warheads—but is not a third aspect that we must not hand the advantage to our adversaries by being overly prescriptive about the circumstances in which we would use that nuclear deterrent?

[Baroness Goldie (Con)]

As my noble friend is aware, the UK has neither a first-use nor a no-first-use policy, and to avoid simplifying the calculations of our potential adversaries, we will remain deliberately ambiguous about when, how and at what scale we will contemplate use of our nuclear weapons.

Queen’s Speech

Lord Lancaster of Kimbolton Excerpts

Wednesday 19th May 2021 Lords Chamber

[Lord Lancaster of Kimbolton (Con)]

My Lords, it is a pleasure to be able to contribute to this important debate on the gracious Speech and to follow my noble friend, who no one can deny made a very powerful speech. While I may not agree with everything she said, she certainly has been entirely consistent in her views for many years and continues to be a powerful advocate. Equally, I join others in congratulating my noble friend Lord Udny-Lister on a quite remarkable maiden speech. There is little doubt that it demonstrated the contribution that he will be able to make in this place in future.

In my brief time, I want to comment on the integrated review. The one thing we have not been short of in recent months is a series of announcements from defence. We have had the integrated operating concept, the integrated review, a Command Paper, the defence and security industrial strategy, and last week saw the publication of Reserve Forces Review 2030. I should declare my interest as the chairman of that review, something I will return to shortly. Collectively, as the noble Lord, Lord Hannay, said, they underline the UK’s clear determination to maintain the international rules-based order, and I am impressed.

As my noble friend Lady Goldie said in her opening remarks, the one thing we have now clearly defined is that we will deliver this through two means. The first is consciously trying to maintain readiness. That is always easier said than done; in the past we have sometimes maintained things at readiness because we can, as opposed to because we should. The second is having a forward presence. In my time as a Defence Minister, the one thing I learnt as I travelled the world seeing our allies was that they all felt that the contributions we made through training were some of the best in the world. The problem was that we were there one day but gone the next. The forward basing of HMS “Montrose” in Bahrain and the recent deployment of the OPV to Gibraltar is already a demonstration of that forward presence. I am particularly pleased to see the OPV moving to Gibraltar, because of our interest now in the Gulf of Guinea and our oil investments in Senegal.

As we move forward, we will have more legislation: the Armed Forces Bill. This will be the fourth time I have been involved in an Armed Forces Bill; last time I took it through the other House as Minister. I am pleased we will finally enshrine the Armed Forces covenant in law. This is something we discussed doing at length last time but, in all honesty, we enshrined in law only the requirement for the Secretary of State to make a report to Parliament each year. That is not to undermine the progress that has been made when it comes to supporting our service families and veterans, be that the investment in the pupil premium or Forces Help to Buy, or indeed the creation of the Veterans’ Gateway, a one-stop shop where veterans can get the support they need. I feel that the potential move to offer national insurance breaks for employing veterans is another step in the right direction.

On the Reserve Forces Review 2030, I am sometimes frustrated in this place when we talk, for example, of an Army of 72,000. We have an Army not of 72,000 but of over 100,000. We have a Regular Army of 72,000, but that is to diminish the contributions that reserves make on a daily basis. We still seem to think that we have a contingent reserve, almost the Territorial Army of the 1980s, which trains only at weekends and is there at times of crisis in case we need it as a third or fourth echelon. That is not a reflection of the modern reserve. Only this morning I was in the Ministry of Defence in my other life as Brigadier Lancaster, making a contribution as almost an auxiliary, contributing to defence on a daily basis. This is the reality of the modern reserve.

The Reserve Forces Review 2030 is all about accessing skills from the civilian sector. As we move to five domains—space and cyber in addition to land, air and sea—some skills are better held in the civilian space, because they can maintain their currency. We must create a system in which we can access those skills, and this is exactly what the Reserve Forces Review 2030 is trying to do. I hope that in future it will have the support of your Lordships’ House.

Afghanistan

Lord Lancaster of Kimbolton Excerpts

Wednesday 21st April 2021 Lords Chamber

[Baroness Goldie (Con)]

I thank the noble Lord for his welcome tribute to humanitarian relief workers, who have indeed made huge sacrifices. I am sure that the Chamber would absolutely endorse his remarks. As I indicated earlier, what is currently happening in Afghanistan is predicated on a wider NATO allies and partners collaboration to assess the situation and to look to the future. We are committed to continuing to work together in NATO to support Afghanistan during and beyond withdrawal. The noble Lord is correct that much of the UK’s support for sustaining the Afghan national security forces is provided as ODA. Ministers are currently finalising the allocation of ODA for 2021-22, so decisions on individual budget allocations have not yet been taken. I think that he will acknowledge that much excellent work has been achieved by the United Kingdom in concert with our other NATO partners.

[Lord Lancaster of Kimbolton (Con)]

Like many who served in Afghanistan, it is impossible not to have mixed feelings about this week’s news. However, it is nearly seven years since UK forces engaged in combat operations in Afghanistan. I feel that their departure is less of a question than the sustainability of the legacy of the institutions that we have tried to build there. On paper—I emphasise, on paper—the Afghan national army is 185,000 strong and funded almost entirely to date by the US. Is my noble friend confident that the structure, size and capability of the Afghan national army are sustainable in the long run?

[Baroness Goldie (Con)]

As I indicated earlier, this is the start of a new chapter. The focus now will be on the political process within Afghanistan. The responsibility to take all necessary decisions to support the journey towards peace will rest with the Afghan Government, including whatever decisions they feel they need to take in relation to their defence and security measures.

Defence and Security Industrial Strategy

Lord Lancaster of Kimbolton Excerpts

Wednesday 24th March 2021 Lords Chamber

[Baroness Goldie (Con)]

I am sure the noble Lord will understand that the budget constraints on all departments, not least the MoD, are visible and exacting. Certainly, the MoD is very mindful, which is what underpins the strategy. How we spend money in future has to do two things: achieving the procurement and acquisition of the technology that we need as swiftly as we can get it when we need it, and ensuring that we contribute to the broader economy by generating activity in the domestic economy and possibly the potential for exports. The scenario that the noble Lord envisages is unlikely to arise because from now on procurement will proceed on a very different basis from what we have known in the past.

[Lord Lancaster of Kimbolton (Con)]

I remind the House of my interest as chairman of the Reserve Forces 2030 review. If we are to meet the ambitions of the integrated review, we need to find better ways to share skills between the private sector and defence. One way is the use of the sponsored reserve—for example, the Voyager programme, whereby Airbus engineers service the aircraft during the week then don their uniforms at weekends, giving an assured capability. That is, however, an underutilised resource, with fewer than 1,500 instances across defence. Is now the time to ensure that all future major defence contracts include a provision for sponsored reserves?

[Baroness Goldie (Con)]

I thank my noble friend for his interest in and continued focus on reserves. I also thank him for his report, the Reserve Forces 2030 review, which will be presented to Parliament soon, as my right honourable friend the Secretary of State said in another place on Monday. As the Secretary of State also acknowledged, in previous decades there has been resistance within MoD to recognising the potential of reserves and using them properly. On sponsored reserves, which my noble friend highlights, they are indeed already playing a significant role. I know that the Armed Forces are looking at the options for developing their role, for example in growth areas like space, cyber and other applied digital skills.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Lancaster of Kimbolton Excerpts

Committee stage
Thursday 11th March 2021 Lords Chamber

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

My Lords, I will speak to Amendment 34. The noble and gallant Lord, Lord Boyce, is a co-signatory and supporter of this amendment, but he had a clinical appointment that could not be changed.

What is immediately striking about the Bill is that it is an amending Bill to others for limitations and for the Human Rights Act, but it does not attempt to amend the overarching Armed Forces Act, though I believe that with a little ingenuity in drafting it could be done. In my amendment, I have suggested a post-enactment approach, because it would have been complicated to attempt to rewrite the first part of the Bill in a series of amendments. The reason for my approach is, of course, to bring all legislative matters of direct import for, and impact on, Her Majesty’s Armed Forces under the cover of the Armed Forces Act.

I have been advocating this approach for many years, going back to the problems that have arisen of conflicting legislation for the Armed Forces in their Acts and the Human Rights Act 1998. When that was being debated, I urged, without success, that human rights matters that the Armed Forces must follow were spelled out in their own legislation. Subsequently, I ensured that the Armed Forces covenant received its own part in the Armed Forces Act. Other legislation of direct impact on the Armed Forces and their discipline has been incorporated, in addition to the melding together of the three single-service discipline Acts into the current Armed Forces Act 2006.

As the services get smaller and are liable to be engaged in operations, their legislation under the umbrella of one Act not only makes for tidier legislation but enables those who have to live under and operate the laws that govern the Armed Forces, and to produce manuals of service law to guide individual commanders, to have a much easier task. Certainly for the particular topic of overseas operations, there is a cast-iron case for the relevant content of this Bill to be part of the Armed Forces Act 2006, just as the clauses on limitations and human rights are transcribed to the appropriate Acts.

This a probing amendment, but I am hoping for an acknowledgment of the benefit that this would bring. I beg to move.

[Lord Lancaster of Kimbolton (Con)]

My Lords, I remind the Committee of course of my interests and say what a pleasure it is to follow the noble and gallant Lord, Lord Craig of Radley. He makes a very important point, which is tied to some of the points I am making, about how there has been, at times, an inconsistency in the way that we have dealt with defence matters through a series of different Acts. He made the powerful point that potentially it would help if we were to bring them together into a single Act.

I will speak to the very simple amendment in my name, which seeks to extend the territorial application of the Bill to include the Crown dependencies and overseas territories. In much the same vein as the amendment in the name of the noble and gallant Lord, Lord Craig, this would align the Bill with the Armed Forces Act, which this Bill references throughout. The Bill currently applies to a member of the regular or reserve forces, or a member of a British Overseas Territory force, as defined by Section 369(2) of the Armed Forces Act 2006, but it does not extend to the territories themselves. This creates ambiguity in its application and my amendment seeks to remove this. I am grateful to my noble friend the Minister for writing to me since I tabled this amendment. Her letter, a copy of which she has placed in the Library, addresses some, but not all, of my concerns.

I will take a moment to explain why this inconsistency concerns me. It stems, frankly, from a mistake I made as the Minister responsible for taking the last update of the Armed Forces Act through Parliament in 2016. At the time, I questioned why the territorial extent of the Bill applied to all overseas territories and Crown dependencies with the exception of Gibraltar. I was told that Gibraltar wanted to pass its own mirroring legislation and that officials did not anticipate a problem.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Lancaster of Kimbolton Excerpts

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

I hope that the Minister will be able to provide us with some answers or, shall we say, mitigations that will go some way to dealing with Part 1 and ensuring that human rights, fairness and equality are honoured and respected.

[Lord Lancaster of Kimbolton (Con)]

My Lords, it is a pleasure to follow the noble Baroness. I start by declaring my interest as a member of the Army Reserve and, indeed, my morning job as the deputy director of joint warfare at UK Strategic Command. Listening to this debate, I have been struck by how clear the point of law seems to be, particularly for noble and learned Lords, from the comfort and security of this Chamber or, perhaps, one’s home. My mind turns to members of the Royal Anglian Regiment who are currently on patrol in Mali, fighting against al-Shabaab and trying to defend what we believe in. I have no doubt that they are equally clear about what is right and wrong.

It always amazes me how members of our Armed Forces, despite the circumstances in which they often find themselves, have applied what is right and wrong under the most difficult circumstances and their judgment is normally sound. However, they will be less interested in the detailed points of law than in knowing that their relationship with Parliament is one of trust and support. As I listened to this debate, I am genuinely concerned that we are beginning not to see the wood for the trees in relation to why we are bringing the Bill forward. It was done partly at the request of our Armed Forces who, in recent years, after a series of vexatious claims, simply want to know that Parliament and the Government have their back.

I have the utmost respect for noble Lords and noble Baronesses who have brought forward these amendments, which in the main come from a genuine concern that the Bill may disrespect international law or organisations such as the ICC. I understand, but I am concerned. Rather like the noble and gallant Lord, Lord Stirrup, I do not understand these early amendments, because they seem to go to the heart of what we are seeking to achieve, and the principles of what the Bill is for, in the triple lock. I find that frustrating, because nothing in the Bill ultimately will prevent, in the case of new evidence, a serviceman being brought to justice. No one is trying to say that members of our Armed Forces should be above the law. That is not the purpose of the Bill.

Some noble Lords simply do not like the Bill and want it gone. To be fair to the noble Baroness, Lady Jones, she was clear in her comments and I absolutely respect her. In many ways, it reminds me of exactly why I joined the military 32 years ago—to ensure that she has the right to stand there and make these points. What I find frustrating, though, is that when some seem to be seeking, effectively, to wreck the Bill through these amendments, in the same breath we hear platitudes about the brave members of our Armed Forces. We should be supporting them.

I, for one, am not saying that the Bill is perfect; it is anything but. I have proposed my own amendment to try to improve the Bill. Later this afternoon, I will be commenting on some amendments that try sensibly to improve the Bill. However, I do not want to lose the purpose of what we are doing, because your Lordships’ House will not do itself any favours with members of our Armed Forces if we seek to undermine the general direction of the Bill and what it aims to do.

I turn in particular to the first set of amendments and the movement from five years to 10 years. I have concerns about that, not least because, in response to the public consultation, there were concerns about a 10-year timeframe. That is a long time and, particularly in the heat of battle, memories can fade and evidence can deteriorate. Given that we are seeking to create certainty and reassurance, a period of five years better achieves that objective. Ultimately, any timeframe will probably be viewed as arbitrary.

Perhaps to reassure myself, I considered how two of the most recent unfortunate cases would be impacted. The trial following the tragic death of Baha Mousa, the Iraqi man who died in British custody in September 2003, was in 2006, just three years later. Equally, I was involved as a Minister in the case of Sergeant Blackman when it came up again two or three years ago. It involved the killing of a Taliban prisoner in 2011 and the trial took place in 2013, well within a relatively short period. In both circumstances, the evidence came out after the event.

Ultimately, nothing changes if new evidence comes to light, which is why the amendment moving the timescale from five to 10 years is unnecessary. Indeed, it goes to the heart of what the Bill is trying to achieve. We should not be treating members of our Armed Forces like fools. They are anything but fools. If we are seeking to put the Bill through Parliament in an effort to support them, let us do just that. Of course there are areas in which the Bill can be improved, but I am not sure that these amendments do that.

[Lord Berkeley of Knighton (CB) [V]]

My Lords, it is a pleasure to follow the well-made points made by the noble Lord, Lord Lancaster of Kimbolton, and I certainly take them on board. I am going to speak briefly to the opening amendments and the general feel of the Bill. I do so having also taken on board the wise words of my noble and gallant friend Lord Stirrup. I look forward to hearing more about his reservations on the Bill.

I was enormously impressed by what we heard from the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Chakrabarti. Their words are, I contend, in the interests of our armed services, given that clarity on the fairness that these matters require helps to give confidence that proceedings involving service personnel are thorough. We desire them to be thorough and universally admired. If they are, that only helps our service personnel. I look forward to hearing other speakers and the reply of the Minister to those concerns.

I turn to a slightly wider landscape. We hear virtually every week in your Lordships’ House about disturbing events in, for example, Myanmar, Hong Kong and China, as well as, even nearer to home, the recent case of the American woman claiming diplomatic immunity after her tragic road crash. There were the cases of the assassination of Mr Khashoggi, the poisonings in Salisbury, Sergei Magnitsky and the current detention of Mr Navalny. The point that I am making is that in all those cases it takes time for the facts to emerge, even to be dug up. The case of Baha Mousa could easily have taken six years, but I salute the efforts that were made. I am afraid that the facts often take longer than five years to emerge. Still more importantly, I contend that our remonstrations about these cases is all the stronger if the way in which we deal with our own employees is as beyond reproach as possible. That is why I worry that five years is too short and why I have real concerns over the presumptions against prosecutions contained in the Bill.

Finally, I stress that I accept that the terrible things that happen in the heat of battle are quite different from the premeditated use of torture. It is that matter which particularly concerns me and to which I shall return when we reach Amendment 14.

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

My Lords, as I said in my comments on the first group of amendments, the vagaries of parliamentary procedure mean that in some ways the groups of amendments are being debated in a less than helpful order. I hope that this group of amendments and the suite of proposals will reassure the noble Lords, Lord West of Spithead and Lord Lancaster, and others who had any concerns that perhaps supporters of the first group might be seeking to eviscerate the Bill in its entirety.

This suite of amendments is intended to be constructive. I will speak predominantly to Amendment 17, in the name of my noble friend Lord Thomas of Gresford and myself, and Amendment 28. They are both about investigations. If the purpose of the Bill is to stop unnecessary investigations and investigations being brought many years later, these two amendments in particular seek in clear and specific ways to give substance to the Government’s stated aims.

Amendment 17 gives a very clear outline of what could be done in terms of investigations: how they should be taken forward and, after they are completed, moved to prosecution. We have not heard huge numbers of veterans saying they have been prosecuted many times, but we have heard concerns about people being investigated and never getting closure. Amendment 17 gives a very clear outline of how investigations could be dealt with.

Amendment 28, in the names of the noble Lord, Lord Tunnicliffe, and the noble and gallant Lord, Lord Boyce, puts limitations on reinvestigation. That surely goes to the heart of what the Government say that they wish to do. If the Government really wish to have the best legislation to serve their own stated aims and fulfil the needs and expectations of current service personnel and veterans, could they please consider these amendments?

In your Lordships’ House, the Minister often feels the need to say that, however laudable the goals of the amendments are, they do not quite fit the approach that the Government want to take. If the Minister does not feel able to support the detail of the amendments, might she consider coming back with some government proposals on how investigations and reinvestigations could be dealt with in a way that would enable the Bill to do what it says on the tin?

[Lord Lancaster of Kimbolton (Con)]

My Lords, it is a pleasure to contribute to this group. I am particularly grateful to the noble and learned Lord, Lord Falconer, for the clarity with which he introduced these amendments.

I turn first to Amendment 3, which effectively seeks to remove Clause 2. That clause, the “presumption against prosecution”, is very powerful. I of course accept that this may not have the legal force it implies to some laymen, not least because of the other measures in the Bill, but it does indicate a very clear change of direction. If one of the aims of this Bill is to offer reassurance to our service personnel and veterans, this is a very powerful clause.

Amendment 3 seeks to delete this clause and effectively replace it with a guarantee of a fair trial. As the noble and learned Lord, Lord Falconer, said, this would happen as a matter of course. I have never met a service man or woman whose concern has been that they will not receive a fair trial in the United Kingdom. So, on the face of it, it does not seem to be a particularly good trade. Removing a presumption against prosecution from Clause 2 and replacing it with a fair trial does not send a particularly powerful message—but I do understand why it is being proposed.

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[Baroness Chakrabarti (Lab) [V]]

My Lords, in principle I am quite concerned about overprescribing matters to be taken into account, because I would want all prosecutors in relation to all suspects to have a very broad discretion to take into account all sorts of adverse factors in fairness to a potential accused. None the less the Minister, who is the most gifted and reasonable advocate, says that part of the purpose of the Bill is reassurance—presumably even if that is a psychological comfort rather than an actual legal one, because I am sure that all relevant factors are currently available.

The Minister also talks about balance and equilibrium. In that spirit I am concerned, given that it is said that prosecution after five years is now going to be wholly exceptional, that no factors are listed in the Bill that militate towards that exceptional prosecution. Why not? Surely that would be the balanced thing to do in the spirit of equilibrium. Why is there no mention here of issues such as covert operations, witnesses and indeed victims of war crimes potentially having been incarcerated, or the crime being particularly undetectable because of collusion by people within an operational cohort or even at a higher level? It seems strange as a matter of good law to have put in the factors that militate against prosecution, which we are told is to be exceptional, as two parts of the triple lock, but to have given no guidance at all as to the exceptional circumstances. With that in mind, I can only agree with the Joint Committee on Human Rights, which is such an important committee for both Houses in performing their role in relation to human rights, and with the remarks of my noble friend Lady Massey.

[Lord Lancaster of Kimbolton (Con)]

I am pleased to follow the noble Baroness. I am grateful to her for, dare I say, reaching out during the last group of amendments and attempting to reach some common ground. I think we are seeking to achieve similar things, albeit coming from very different perspectives, since I was a practitioner, as it were, in the past. I looked very carefully at the amendment and, for fear of being damned with faint praise by the noble Lord, Lord Thomas, there are aspects that I absolutely understand.

As ever, though, the problem has just been hit on the head by my noble and learned friend Lord Mackay, and that is the application. It is one thing to say that people who are suffering should not be put into a war zone, and that is absolutely right. However, the application matters when you are already in a war zone—a distant FOB—and within a small group with no ability to blow a whistle and stop the war in order to be withdrawn from the situation, along with the gradual deterioration of the condition over a period of time. This will not necessarily be seen by those around you because they are suffering similar things. It is not quite as easy to put into practical application during operations, which is why we need to be careful.

When I was training to become a bomb disposal officer, I knew absolutely what I was letting myself in for. Having served on operations in Bosnia, Kosovo and Afghanistan, most recently in Afghanistan while I was a Member of Parliament, it is not always possible to see these deteriorations. It is important to realise that a medical or psychiatric condition may or may not be recognised at the time. Prosecutors are already required to have regard to any significant mental or physical ill-health or disability as in some circumstances this may mean that it is less likely that a prosecution is required. Clause 3 simply seeks to ensure that such considerations are put on to a statutory footing within the unique context of an overseas operation.

I recognise that I come at this from a different angle and I can see the precise way in which noble and noble and learned Lords are looking at the Bill, but I will go back to the comments I made earlier. This is also about sending a message. By putting this on to a statutory footing in the Bill, it will send a clear message to members of our Armed Forces that the Government and Parliament understand that we are asking them to do extraordinary things in extraordinary circumstances. This would be a recognition of that.

[Lord Dubs (Lab) [V]]

My Lords, I also speak as a member of the Joint Committee on Human Rights which produced the report on this Bill, and it is what is in that report which will influence the brief comments that I shall make. I support what my noble friend Lady Massey has said.

I accept fully that it is most unlikely that the Armed Forces would send someone abroad who was not capable of making sound judgments. The issue, as evidenced by the comments of the noble Lord, Lord Lancaster, just now and the noble and learned Lord, Lord Mackay, is whether people in a war zone, in very difficult and dangerous circumstances, might develop a condition where their judgment was not as sound as when they were sent there. However, my understanding is that soundness of judgment is something that underlies all prosecutorial decisions in the criminal law of this country anyway, so I am not clear as to why we should treat soldiers differently from the way that the law normally works.

I can do no better than to quote from paragraph 79 of the JCHR report:

“The mental health of a defendant is already borne in mind as part of the prosecutorial decision as to whether it is in the public interest to bring a prosecution. We do not consider that there is any solid basis for including an additional requirement that could risk granting de facto impunity to those who have committed crimes on the grounds that the perpetrator lacked sound judgement, or could not exercise self-control, beyond the threshold already established in criminal law. For this reason, we would recommend deleting clause 3(2)(a), 3(3) and 3(4).”


The key words in this are

“beyond the threshold already established in criminal law.”

If we believe that the threshold in our criminal law is adequate, we do not need this extra provision. That is the basis on which I will support what my noble friend Lady Massey said at the beginning of this debate.

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[Baroness Chakrabarti (Lab) [V]]

My Lords, I am grateful to my noble and learned friend Lord Falconer and to the noble Baronesses, Lady D’Souza and Lady Jones, from whom we have just heard, for tabling these amendments. They have cemented in my mind concerns that I expressed at Second Reading about the role of the Attorney-General as the third lock in the architecture of this Bill.

In response to comments made by the noble and gallant Lord, Lord Stirrup, about how, if it is such a problem, we have a problem with the role of the Attorney-General in the constitution per se, I would say not quite. We know that the Attorney-General wears different hats—sometimes legal adviser to the Government and sometimes to Parliament—and sometimes acts in a separate role in relation to the public interest. Those hats are capable of being worn at different times. No doubt it takes a bit of skill to get the balance right, but in normal, civilian prosecutions, I suggest that an Attorney-General is very unlikely to have been giving legal advice on, for example, the investigative process; they would be very unlikely to have given advice directly to the police on the search that gave rise to the prosecution.

This is not the case in war and conflict, where the Attorney-General, as legal adviser to the Government, has undoubtedly been involved in the rules of engagement; they have quite possibly given very detailed advice on those rules and, as my noble and learned friend said, on matters concerning detention and so on. To make potentially the same person who advised on the legality of an operation the third lock on whether alleged criminality should be prosecuted seems to me unlikely to give confidence—the word “reassurance” has been used a lot—to anybody, whether that be civilian members of the public or military personnel. After all, this could be an Attorney-General who advised on the operation or one from a party that was very much opposed to the operation before it came into government. I have real concerns about the politicising of these prosecutions. One has only to think about the controversies in recent conflicts around the world to see that potential damage to public confidence, including among members of the Armed Forces on the front line and their families.

If the noble Lord, Lord Faulks, will forgive me a quick word, there was a little having of cake and eating it in his remarks. He referred—I do not think as a criticism—to the ICC as quasi-political. Given these various hats, someone might well say that of the senior law officer involved in these matters who sits in or comes to Cabinet, including war Cabinets. In terms of accountability, to give this role to the Attorney-General is to give it to a political person who is appointed directly by the Prime Minister—quite possibly, as I say, the Prime Minister who authorised an operation—and for that all to be in the shadows. The Attorney-General’s original advice on the legality of the conflict and perhaps specific operations is currently in the shadows and now the Attorney-General’s veto of the independent prosecutor’s decision will quite possibly be in the shadows as well. That is highly problematic.

I am grateful for these amendments, which I think are probing. In any event, I think the Attorney-General should not be involved in this way at all. It seriously risks politicising already very delicate matters.

[Lord Lancaster of Kimbolton (Con)]

It is a great pleasure to follow the noble Baroness. I am particularly interested in her point about the Attorney-General not only offering advice on the potential conflict but being put in this position as well.

These amendments firmly caught my eye. The noble and learned Lord, Lord Falconer, outlined in his opening comments some of the challenges of overseas operations in a military context and politicisation—although in my mind all conflicts are political in one form or another. I immediately looked to see what historical examples there were of advice being published by the Attorney-General. There are not many. If we were to continue the theme of overseas operations and look back to probably the most controversial one of recent years—from 2003—the Attorney-General’s advice was certainly not published for that. Nor, I understand—though I am happy to be corrected—was it even given to Cabinet at the time. It is worth remembering how times change. There now seems to be an eagerness to publish the advice of the Attorney-General that was not there in 2003.

My instinct is that giving reasons goes against the grain of the constitutional principle regarding law officers’ advice: law officers do not confirm the facts or publish their legal advice or principles. I think that that is an important principle that enables frank advice to be given. If we accept that, an exception would create a slippery slope that could extend to other areas. There is also the reality that the sorts of information that the reasoning would be based on could have security implications, so should not be disclosed and would largely have to be omitted anyway. Lastly—I am no expert and this is a genuine question for noble and learned Lords in the House—I think that a judicial review, based on ordinary public law grounds, would surely be a sufficient check on decisions such as these.

[Lord Thomas of Gresford (LD) [V]]

My Lords, the role of the Attorney-General in giving consent to a prosecution has been much discussed in the past. Following on from the remarks of the noble Lord, Lord Lancaster, I note that the Law Commission reported in 1998, and the noble and learned Baroness, Lady Scotland, when she was Attorney-General, conducted a consultation following the controversy over the legality of the Iraq war. The precise result of that consultation is not clear. I am interested in the suggestion made by the noble Baroness, Lady Chakrabarti, that the role requires a fresh review; I agree with that.

In the context of this Bill, it is a simple question: in what circumstances is it appropriate for the Attorney-General to second-guess the decision of either the Director of Public Prosecutions or, in this proposal, the Director of Service Prosecutions? The noble Baroness, Lady Chakrabarti, also made an important point by referring to the conflict of interest that would arise if the Attorney-General has advised on the conduct or legality of an operation, or on the treatment of prisoners, and the issue is, for example, the way in which prisoners have been treated.

I remember that Lieutenant-Colonel Nick Mercer, when he was the senior legal adviser to the group in Iraq, advised that the way in which prisoners who had been taken were being treated—they were made to kneel with a sack over their head and their hands bound behind their back—was a breach of the European convention. He was howled down by the Ministry of Defence for voicing such an outrageous view—one that was subsequently upheld in the European Court of Human Rights.

If the presumption against prosecution survives, the DSP starts with a curb on his discretion, as we have discussed. If he thinks that the circumstances of a case oblige him to ignore the presumption against prosecution, his decision will be based on his judgment, first, whether there is sufficient evidence on a balance of probabilities to result in a conviction and, secondly, whether it is in the public or service interest to prosecute. If Amendment 3 were to be successful in any form, he would also have to take an overall decision on whether the possibility of a fair trial had been compromised by delay.

Cadet Forces

Lord Lancaster of Kimbolton Excerpts

Monday 1st March 2021 Lords Chamber

[Baroness Goldie (Con) [V]]

The noble Lord will understand that I cannot give a specific timetable, but I can reassure him that there is certainly a desire throughout the United Kingdom, where the cadet forces are such an important presence for our youth in the four nations, to let them resume their activities as soon as guidance and rules permit.

[Lord Lancaster of Kimbolton (Con)]

My Lords, like many, I started my uniformed career as a cadet, in my case an Air Force cadet at Kimbolton School Combined Cadet Force. I have no doubt that the discipline it gave me helped me in my modest academic achievements. One of the great success stories in recent years has been the cadet expansion programme, with 500 new cadet forces created by 2016. Will my noble friend update the House on how the target of reaching 60,000 cadets by 2024 is progressing?

[Baroness Goldie (Con) [V]]

I reassure my noble friend that the expansion scheme has been a great success, exceeding time limits for achievement. Obviously, the pandemic has had an impact, not least on our school recruitment, because we have missed the September 2020 date, for example. But there is a strong partnership between the MoD and our cadet units in schools and we are mindful of that. That is partly governed by the Department for Education as well. I thank my noble friend for raising the issue. It is an important programme and we are confident of it making positive progress.

Armed Forces Act (Continuation) Order 2021

Lord Lancaster of Kimbolton Excerpts

Thursday 11th February 2021 Lords Chamber

[Lord Lancaster of Kimbolton (Con)]

My Lords, I declare my interest as a member of the Army Reserve and would like to focus my comments today by giving a taster of the soon-to-be published Reserve Forces 2030 review, of which I had the honour to be chairman. It is an enormous pleasure to follow the noble Lord, Lord Campbell of Pittenweem, and I can perhaps answer one of his questions and reassure him that in recent years the reserves have been growing in numbers.

While it may seem archaic that we debate this SI today, the requirement for your Lordships’ House to give approval for the continuance of our Armed Forces Act underpins the relationship between Parliament, society and service men and women, a relationship that many other nations view with envy. At its heart, in part at least, is the citizen soldier, the reservist. Indeed it is worth noting that the two oldest units in the British Army, the Royal Monmouthshire Royal Engineers and Honourable Artillery Company, are reserve units tracing their history back to 1530s, predating even the Bill of Rights of 1688.

Like that of many fellow reservists, my service has been part of a fairly consistent juggling act between the competing demands of a hectic professional career, private life and soldiering. In reflecting on my own time as a reserve, so much has changed over the 32 years, going from an almost entirely contingent force that trained at weekends and annual camps, recruited locally and was encapsulated by names such as the Territorial Army and Royal Auxiliary Air Force to the Reserve Forces we have today, across all three services, delivering daily support and skills as part of a semi-integrated force, the true value of which we have seen in recent months during the current Covid crisis. To take just one example, the Nightingale hospitals were designed and delivered in part by the Engineer and Logistic Staff Corps, industry experts donating their skills unpaid to the nation via the volunteer reserve.

Since Haldane’s creation of the Territorial Force in 1908, which subsumed the militia and the Volunteer Force, reserves have always embraced change. It is perhaps because reservists are both drawn from and a part of society that one of their key strengths over many years has been their enduring capacity to adapt to the needs of the day. The relationship between the military and society, in which the Reserve Forces play a crucial role, is complex and changing, and the challenges the country has faced during Covid have underlined how important that relationship is.

The most recent reform was the Future Reserves 2020 review, which focused on growth and investment in the single service reserves. Until that point, the Reserve Forces were viewed by some as being in decline, having been used almost solely as a source of individuals to bolster Regular Forces exhausted after years of campaigning. Building on the undoubted success of the implementation of that review over the past 10 years which has seen the size of the reserve grow, the terms of reference for the latest review were rather different. Rather than looking down and in at the use of reserves by the single services, we were tasked with looking up and out. At its heart, the review is about people and skills and how defence, industry, government and wider society can share them. This means looking at how the Reserve Forces can provide capability across government departments, deliver networks into industry and academia and reinforce national resilience and homeland security as well as renewing and strengthening the link with society in general.

The national experience of the Covid pandemic has demonstrated in no uncertain terms how the nation needs to pull together in time of crisis and how government, Parliament, state institutions, industry and the general public rely on each other. In harnessing this latent appetite to volunteer, the latest review looked at how UK Reserve Forces can provide a nucleus for this activity as well as support the creation of non-military reserves, such as an NHS reserve. It became quickly apparent that the latest review could not just be another review focused on reserves. Rather, it needed to be a review on the provision of defence capability in the round. It is apt, therefore, that our work has been able to inform the integrated review, and we have drawn on the integrated operating concept published last year. The review will be published shortly, but suffice to say many of the recommendations go far beyond those that many have been expecting.

The vision the review describes is of empowered Reserve Forces that are further integrated with their regular counterparts and the wider defence enterprise, while at the same time providing greater utility and assurance across a broader range of military capabilities with access to civilian skills. We have sought to break obstacles for people to join the reserve and to promote a spectrum of service from full-time uniformed, to part-time, spare time and non-uniformed service that will enable individuals to contribute their skills. We have also looked carefully at ways to ensure those who have left the Armed Forces can continue to contribute. At the very core of the review though is the reservist and a recognition of the need to ensure that, just like it was to their predecessors, the offer of service in the Reserve Forces remains not only attractive to the individual reservist but is valued by their families, employers and wider society too.