Armed Forces Act (Continuation) Order 2020

Baroness Goldie Excerpts

Monday 16th March 2020 Grand Committee

Moved by

[Baroness Goldie]

That the Grand Committee do consider the Armed Forces Act (Continuation) Order 2020.

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

My Lords, we have before us a small, though crucial, piece of parliamentary business to conduct: our annual consideration of the legislation governing the Armed Forces—the Armed Forces Act 2006. Before I turn directly to the matter of the annual continuation of the Armed Forces Act, let us not forget that our Armed Forces are without doubt one of this country’s foremost and most precious institutions, being held in the highest regard throughout the world as a benchmark of military excellence that other nations aspire to. Let us never forget, either, the men and women of the Armed Forces who serve and have served us so well, whether at home or further afield.

This nation owes much to our Armed Forces and the admirable qualities they espouse: bravery, discipline, professionalism, unflinching and steadfast loyalty to duty, and a strong moral compass to do all that we ask of them. These noble qualities and adherence to duty are all too frequently tested in the most challenging and varied of environments and circumstances. Therefore, our service men and women deserve our respect for the manner in which they continue to maintain such high standards and professionalism. We owe a huge debt of gratitude to our Armed Forces, who perform exceptional feats to protect this country in incredibly difficult circumstances. To support them, we shall shortly bring forward legislation to deal with vexatious claims. We will also further strengthen the basis of the Armed Forces covenant, because we are absolutely committed to supporting all in our Armed Forces community, but today we busy ourselves with the continuation of the Armed Forces themselves.

Therefore, the draft order we are considering is to continue in force the Armed Forces Act 2006 for a further year, until the end of 11 May 2021. As I shall explain, this reflects the constitutional requirement under the Bill of Rights of 1688 that a standing army, and by extension now the Royal Navy and the Royal Air Force, may not be maintained without the consent of Parliament. Let us not forget that the Armed Forces cannot exist without the annual consent of Parliament. Our consent is an opportunity for us in this Committee to record our thanks by permitting the Armed Forces to continue for another year. As I have indicated, yearly renewal is rooted in the 1688 Bill of Rights. This historical context forms the basis for why the legislation that provides for the Armed Forces to exist as disciplined bodies is renewed by Parliament every year.

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My final point is one I have raised before and not really got a satisfactory answer to. Where is the legal protection in the service justice system for a soldier who kills an enemy? It seems that that is an absolutely simple thing that, as a soldier, you would expect to be told: there is a law of the land that if you kill an enemy, you are protected in law. You almost certainly are, because the Armed Forces have killed many enemies over the years, but that is a common-law basis. It is relatively rare that anybody is ordered to kill somebody—they normally lay down fire, drop bombs or whatever—but snipers have this particular duty. How can that individual be confident that he will not subsequently be prosecuted for murder, especially in view of so many actions these days taking place where war has not been declared? In particular, how can a member of the Special Forces who kills an enemy be sure that he will not subsequently be prosecuted?

[Baroness Goldie]

My Lords, I thank all noble Lords for their contributions, which have been very helpful. To some this might seem to be a routine and almost ritual debate, but underneath it are very important issues, as all contributors have indicated.

The points raised by the noble and gallant Lord, Lord Craig of Radley, were interestingly echoed by the noble Lord, Lord Tunnicliffe, in his final point. These are very important issues. Your Lordships will be aware that the Government have been concerned about the position in which members of our Armed Forces find themselves placed when in a situation of conflict. They take action that they deem to be proportionate and necessary, yet they have not been sure that they can return home without recriminations following, which might be either criminal law prosecution or civil law action for damages. The Government take that backdrop very seriously because when we ask men and women to undertake service in the name of the country, and frankly to expose themselves to situations and do things that many of us are not required to do, we are asking a very great deal of them. The least we can do is try to reassure our service men and women that when they act in the interest and under the orders of our national direction, we value what they are doing and we wish to try to protect them.

Your Lordships will be aware that last year we carried out an extensive consultation on overseas operations focused on three proposed measures that the Government want to take: a statutory presumption against prosecution; a proposal to consider the creation of a new partial defence to murder; and a proposal to restrict the court’s discretion to extend the normal time limit for bringing civil claims for personal injury and/or death in relation to historical events outside the United Kingdom. I am pleased to inform your Lordships that the Government will very shortly introduce a legislative package to ensure that our service personnel and veterans have access to the legal protections that they deserve. That legislation will build on the consultation held last summer on proposed legal protections and measures for our Armed Forces personnel and veterans who have served in operations outside the United Kingdom.

The noble and gallant Lord, Lord Craig of Radley, specifically raised the issue of Northern Ireland. That will be dealt with in a separate Bill—a Stormont Bill—which will seek to replicate the same types of protections that we are trying to achieve. I hope that reassures your Lordships that something is likely to come before Parliament imminently.

[Lord Craig of Radley]

Just to be absolutely clear in my own mind, are we talking about legislation? The noble Baroness has talked about giving the Armed Forces assurances, but I think she just said that there will be legislation. I want to make sure that we will legislate and that this is not just about assurance.

[Baroness Goldie]

I can reassure the noble and gallant Lord that, yes, I said that we will introduce a legislative package and that is what we will do. The legislation has been drafted and will imminently come before Parliament. As I say, I hope that that offers reassurance.

The noble Baroness, Lady Smith of Newnham, raised a number of very interesting points. She specifically asked what will happen if Parliament is prorogued when, for example, an SI might be needed to renew the operation of our Armed Forces. We are dealing with extraordinary circumstances, the extent and impact of which are probably not yet quantifiable. There is an assumption that Parliament will sit. There is a recognition that the parliamentary process, particularly in a time of crisis, is extremely important. I want to reassure her that every effort will be made to ensure that the parliamentary process can continue in one form or another. She is absolutely right to say that there are consequences to Parliament being prorogued which could be very grave, and therefore every effort will be made to ensure that, whatever legislation is required for essential purposes, some mechanism will be found to make sure that that is addressed.

The noble Baroness also asked about the current pressures on the MoD, particularly in relation to the Covid-19 pandemic. I assure her that arrangements are in place for Defence to provide support to civil authorities if requested. We are working hard to identify where we can best provide support. At this time, there are no immediate plans for any large-scale deployments of the military to assist with public services, but we do stand ready to assist if requested to by other government departments. It goes without saying that we will continue to maintain the delivery of our key operations and outputs, such as the continuous at-sea deterrent and overseas operations.

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[Lord Tunnicliffe]

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

[Baroness Goldie]

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

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

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

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

[Lord Tunnicliffe]

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

[Baroness Goldie]

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

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

Motion agreed.