Armed Forces Commissioner Bill (Third sitting)

Amanda Martin Excerpts

Committee stage
Thursday 12th December 2024 Public Bill Committees

[Mr Francois]

There are two questions there. On the first, the honest answer is that it depends on the KC. In my limited experience, different King’s counsels tend to charge different rates. One would hope that the commissioner would employ someone who was good at their job, so yes there would be a public expenditure cost.

If the hon. Gentleman will permit me, I am going to come in a moment to the exact rationale for why we have sought to mandate that at least one of the commissioner’s staff should be a qualified KC; he slightly pre-empts me. But I hope I can convince the Committee that there is a genuinely good reason for doing so and I am going to produce at least one real-world example. If that satisfies the hon. Gentleman, I will make some progress. Did the hon. Member for Portsmouth North, sitting next to him, also seek to intervene or have I inadvertently answered her question?

[Amanda Martin (Portsmouth North) (Lab)]

I will come to it afterwards.

[Mr Francois]

Okay, thank you.

We live in an increasingly litigious world, including the wider prevalence of so-called lawfare issues on the modern battlefield. Therefore it seems important to us that the commissioner should have access to senior legal advice in carrying out their duties. We believe that could best be provided by a qualified King’s counsel, perhaps specialising in areas of employment law and other matters that would relate to the welfare of armed service personnel and their families.

There is a live issue in the armed forces community: if they take life, which sometimes they are required to do in the service of the country, what are the legal implications for them, maybe even decades later? The issue is generally referred to as lawfare. Let me give a specific example of why this matters, Mr Efford. I am going to refer to a case that has concluded; I reassure you and your Clerk that the sub judice rule does not apply, I believe, because the case is over.

On 10 December, the BBC reported, under the heading “Ex-lawyer spared jail over false Iraq War claims”, that

“Phil Shiner was given a two-year suspended sentence at Southwark Crown Court after pleading guilty to three counts of fraud relating to legal aid claims made in 2007.”

For background,

“The former boss of Public Interest Lawyers was struck off by the Solicitors Regulation Authority in 2017 for pursuing false torture and murder allegations against British troops.”

The article continues:

“A lengthy inquiry into wider allegations of abuse at the hands of British soldiers established ‘beyond doubt’ that all the most serious allegations had been found to be ‘wholly without foundation and entirely the product of deliberate lies’.”

According to the National Crime Agency, Mr Shiner received around £3 million towards the cost of legal aid for the cases in which he was involved.

--- Later in debate ---

[Mr Francois]

I commend the hon. Gentleman for his accurate reading of the legislation. On Second Reading, the Minister made the point that the legislation is drafted to be facilitative. For instance—we will come to this later—it does not necessarily define exactly what are and are not “general service welfare matters”. It provides a broad remit. But for the reasons that I hope I have been able to articulate, we believe that although the schedule that the hon. Gentleman mentioned would facilitate the Armed Forces Commissioner in seeking to appoint a legal adviser, that would have a spending implication. It could be—it is not inconceivable—that some in the Ministry of Defence would baulk at that. The intention of putting the provision into the Bill is to include beyond peradventure the right of the commissioner to seek to appoint a senior legal adviser. In a sense, it does not compel the commissioner to do that, but it gives them that power very clearly.

[Amanda Martin]

You say that your amendment does not tell the commissioner that they should make the appointment, but it states:

“The Commissioner’s staff must include a King’s Counsel”.

Since there is a “must”, what you just said is not correct. If we agree to this amendment, we are saying that the commissioner, who we want to be independent, will not have the choice of who they include in their staff, as my hon. Friend the Member for North Durham mentioned. Your amendment says “must include”.

[The Chair]

Order. Can I remind Members about the use of the word “you”?

[Amanda Martin]

Sorry.

[The Chair]

“You” refers to me in the Chair, not to the person opposite. Just a gentle reminder about that.

--- Later in debate ---

[Mr Francois]

I will respond in kind to what the Minister says. As he will recall, his calculation was that even if the KC that we have been debating conceptually were full-time—we can argue about the rate—it might cost about £1.3 million a year. We never stipulated that it would be a full-time post; I think the Committee has explored. The essence of amendment 9 is that the commissioner would have access to high-level legal advice. Even if it were £1.3 million, given that our policy going into the election was to increase defence spending to 2.5% of GDP by 2030, I think we could have found £1.3 million within that number. The Minister is the one with the challenge, because he does not have a date for 2.5%. If he ever gets one, we would all like to hear it. I think we could have afforded the post, even if it had been full-time—and we did not mandate that it had to be.

[Amanda Martin]

My understanding is that the last time that the defence budget was at 2.5% was under a Labour Government, and that in the 14 years under the Conservatives there was not a 2.5% budget.

[Mr Francois]

That is correct, and under the Tories in the mid-1990s it was well over 3%. The problem is that a lot happened in the 14 years, including a war in Ukraine. That is why we probably need to spend 2.5% as quickly as possible.

Even if the Minister’s calculation is correct, by the time a senior NCO in the British Army gets to the rank of WO2, the King—or the Queen, before him—will probably have spent the best part of £1 million on training them. If they then leave, perhaps because they have had a very bad experience at the hands of the likes of Mr Shiner, that is £1 million of investment that has just walked out the door.

To be fair, the Minister understands the pressure. According to some figures that I received in answer to a recent parliamentary question, the strength of the British Regular Army is 71,300. This was in October. The establishment strength—the book strength, or what it is meant to be on paper—is 73,000. It was 72,500, but then there was an add-back of another 500, partly for the two Rangers Battalions. The British Regular Army is now nearly 2,000 soldiers short of what it should be, even on paper. Unfortunately, the trend is that more people are leaving than joining.

I am not highlighting that point in order to say that the whole lawfare issue is the only reason that people are leaving the British armed forces. That is not my argument, but it is one reason, and it is likely to get worse unless the Government do something about it. That includes doing something about the so-called Northern Ireland legacy Act.

I hope I have made the point sufficiently this morning; I am grateful for the way in which the Minister has acknowledged it and dealt with it. As I think the point has been made, I will not press amendment 9 or 10. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the schedule be the First schedule to the Bill.