Draft Armed Forces (Covenant) Regulations 2022 Draft Armed Forces (Service Court Rules) (Amendment) (No. 2) Rules 2022

Carol Monaghan Excerpts

Wednesday 26th October 2022 General Committees

[Luke Pollard (Plymouth, Sutton and Devonport) (Lab/Co-op)]

It is good to see you in your place, Ms Bardell.

I welcome the Minister to her first statutory instrument Committee on the Front Bench. I hope that the Prime Minister was listening to her speech because, having sat through an enormous number of statutory instrument Committees since I was elected in 2017, it is good to hear a Minister on top of their brief and able to speak beyond the words given to them by officials. That is welcome, and I hope that the Minister stays in her place if any reshuffle comes her way. At a time of such severe international difficulties, we need good people who know our military and can make good decisions.

Labour will oppose neither of the draft statutory instruments. They both move in the right direction. However, I have a few questions and a few points to make. A number of Opposition colleagues have participated in the armed forces parliamentary scheme, as I know have Government Members, which gives parliamentarians an opportunity to look at service life. Indeed, I have just returned from Estonia, where I saw the amazing work of the King’s Royal Hussars and 2 Rifles in defending our allies there. We need to make sure that the systems put in place are suitable for not only service personnel but, importantly, their families. I know that the Minister has an interest in defence families, which is a fresh injection into the way the Ministry of Defence works, and I wish her the best of luck with that. I will ask a few questions about defence families, but I encourage the Minister and all parliamentarians to fully participate in that scheme if possible.

The AFPS could benefit from a slight tweak. At the moment, the three basic courses do not include a module on defence justice. Given the important role that defence justice plays for our service personnel and the confidence that we must have in defence justice, the ability for parliamentarians to have a passing understanding of how the defence justice system differs from the civilian system and why there is a difference would not only aid Committees such as this in scrutinising legislation, but would help us to understand daily service life.

[Carol Monaghan (Glasgow North West) (SNP)]

I thought the hon. Member was going to add the experience of women. Although the Minister has done a huge amount of work on the issue, that would be another useful addition to the parliamentary scheme, so that parliamentarians could sit down and hear, behind closed doors, the true lived experience of women in the armed forces.

[Luke Pollard]

I am grateful for that intervention, and I agree. It is quite refreshing to see the freedom that service personnel have to speak to parliamentarians on visits, and experiences of sexual violence within the forces, which the Minister will know about from her time on the Defence Committee, are very relevant to what we are discussing today.

I will first talk about the covenant regulations and then move on to service justice. We need to recognise that it is not just our service personnel, their families and people who have served in the past who need to have a robust armed forces covenant that is as effective as possible. Across the country, there are some locations—Plymouth is one—that do the armed forces covenant very well. There are other locations where the armed forces covenant sits gathering dust on a shelf, and the ability to make sure it is truly implemented and lived is a challenge that still has not been fully met.

I would like the Minister to consider important ways in which the covenant could be strengthened. One of those is the extension of the covenant beyond education, healthcare and housing to include other areas of central Government activity—employment, social care, pensions, compensation and benefits, to name but a few. Our service personnel, veterans and their families should not incur unfair disadvantage in any walk of life, and the importance of the armed forces covenant as a principle needs to be extended to all public bodies.

There is a second area where this SI could seek to go a little further. Despite the Minister mentioning the 2023 review of the covenant, there are still no plans for the covenant to apply to central Government, including the Ministry of Defence itself. It is worth taking a moment to consider that omission. If the armed forces covenant is to be real, and if service personnel, their families and veterans are to have confidence in it, the Ministry of Defence must lead by example. I would like to see Ministers, including the Minister here today, put more effort into making sure that happens.

A whole host of service charities, including the Royal British Legion, Help for Heroes and the Confederation of Service Charities, have expressed concern that central Government do not have a duty under the covenant. In terms of the duties under the covenant, it is fine for this place to put additional responsibilities on local government—which has a lot of responsibilities already, but not the resources to go with them—but the Government need to walk the walk if they are to talk the talk, and that means applying these duties to central Government as well. This is not a small point. National Government oversee many policy areas that service personnel experience difficulties with, so they should have clear, measurable duties under the covenant to deliver for personnel, their families and veterans.

Satisfaction with service life has dropped below 50%, according to the Government’s own figures, which should worry Members on both sides of the House. I seek not to make a party political point; we need to make sure that we increase morale among our armed forces personnel if we are to retain their skills and experience, and honour our obligations as, in effect, employers. There are still clear failings when it comes to housing, healthcare, social care and other issues.

As we approach Remembrance week, attention will naturally turn to how the covenant is implemented, and rightly so. As parliamentarians, we should not only ask questions publicly, but challenge constructively in private and ask when it will apply and whether the 2023 review of the covenant will include consideration of its greater applicability to central Government. I am afraid 2023 is already too late.

Let me turn to the draft Armed Forces (Service Court Rules) (Amendment) (No. 2) Rules 2022. The Minister will know, because she and I have spoken about this many times, that the Labour party stands four-square with our armed forces and backs the Government’s effort in Ukraine to support our NATO allies, but we do need to make sure that we get all aspects of service life right. Although the rules are a step in the right direction, I have some questions about how we can make sure that they are delivered appropriately.

It is entirely sensible to introduce the overriding objective that the Minister has set out for courts martial and to give the Director of Service Prosecutions responsibility for warning prosecution witnesses of trial dates. Those were pragmatic recommendations from the Lyons review, which we welcome.

Likewise, it is welcome that the statutory instrument will ensure that there is at least one woman on the board of each court martial in circumstances where there are lay members on the court. A normal board will have between three and seven people, so it is a step in the right direction to have one woman there, but I would like to have a greater sense that we are moving towards balance. We need to see more women in our armed forces full stop, but the explanatory memorandum could have shown a greater sense of the direction of travel that Ministers wish to take. I would be uncomfortable with the idea that it is good enough that there is a woman on the board and that some additional women may, although not necessarily, be provided by the shuffle that the Minister explained. We need a sense of the direction of travel.

I encourage the Minister, in the implementation of the SI, to look at how the language can be tweaked to make sure we have greater representation, which is particularly important when the board considers cases that include servicewomen or situations in which a servicewoman has been affected as a victim. The lived experience of the people who are judging someone and making decisions on their career and on prosecution should have an element of familiarity with the experiences of either the person on trial or the witnesses and victims.

Some Government statements on upholding military justice are still more rhetoric than reality. I wish to put on the record the Government’s rejection of the headline recommendation of the Lyons review that murder, manslaughter and rape should be prosecuted in civilian rather than military courts when the offences are committed in the UK, with the Attorney General able to rule otherwise in exceptional cases.

It is a shame that the Government have chosen not to adopt fully the proposal—the headline recommendation—but it is more than disappointing, because the Minister may not have listened to her own recommendations. I do not wish to embarrass her, but last year she co-authored a Defence Committee report on women in the armed forces that argued that the Government should remove court martial jurisdiction over cases of rape and cases of sexual assault with penetration, as well as for cases of domestic violence and child abuse. I know the Minister has been in post for only a short time, but I encourage her to continue to provide challenge within the Ministry of Defence in respect of why the full recommendation was not included in the statutory instruments before us and on how quickly the change will come. Will she set out whether any work on that is in train in the Ministry of Defence?

There is a litany of reasons why this issue is important, including serious backlogs, investigators missing obvious lines of inquiry and the unnecessary retraumatisation of victims. Let me give the Committee two examples taken from the written evidence submitted by the Centre for Military Justice to the Defence Committee inquiry on women in the armed forces. In one case in which a servicewoman reported an alleged sexual assault, the Service Prosecuting Authority accidentally revealed the victim’s home address to the alleged assailant by sending to the alleged perpetrator a letter intended for the victim. That is clearly unacceptable. In another case, where a servicewoman reported sexual assault, court martial transcripts show that a judge advocate remarked of the

“quite appallingly bad police investigation…how stupid was it not to interview the people who were at the scene”.

There is still work to be done, and I encourage the Minister to look at whether that recommendation can be brought back.

It is unsurprising that the recent service justice system policing review said:

“The Service Police do not investigate enough serious crime to be considered proficient”.

That makes a clear distinction between service policing and the civilian role. We must understand the particular demands, stresses and secrecy that may apply in a military environment, and have examples of where that should not apply and where the expertise and familiarity of civilian policing could produce better results for victims and greater confidence in the justice system. The numbers speak for themselves. Ministry of Defence figures show that from 2015 to 2020, the conviction rate for rape cases tried under courts martial was just 9%. Recent data shows that the conviction rate was 59% for similar cases that reached a civilian court. We know that prosecution rates for rape are far too low in civilian courts, but that comparison shows a problem.

I would be grateful if the Minister answered a number of questions. First, my hon. Friend the Member for Blaenau Gwent made a point about the explanatory memorandum. I am afraid that if the Minister is to serve on Delegated Legislation Committees with me, she will need to know that I, too, read the explanatory memorandums quite closely. I am interested in why the territorial extent of the regulations includes United Kingdom overseas territories but not Gibraltar. Considering the large UK military presence in Gibraltar, why is that particular overseas territory excluded from the regulations? Are the provisions replicated elsewhere, or is a separate statutory instrument needed to deal with Gibraltar’s specific legal jurisdiction?

I am not a fan in impact assessments of the phrase

“no, or no significant, impact”

because I believe that those are two very different things. I know that it is not the Minister’s fault, and that officials who write such explanatory memorandums must use the house style, but there is a difference between no impact and no significant impact. When looking at the impact of any SI, it is unhelpful to have those blurred together.

My final question is about the quite helpful expansion of what a “family member” means in the SI. As someone who believes that families should be at the heart of our community but that we should not specify what a family is because each of our families is different and each is loved by the people within them, I was interested to see how the Government have laid out what a family is and what a relation is. When a service person has a foster child, or when there is one in a defence family, I think that would be included within the broader remit, but I would be grateful if the Minister confirmed it for the record.

May I politely challenge the use of the language

“of the full blood or of the half blood or by marriage”

in the Bill? There is language that, as parliamentarians, we should encourage movement away from. When we talk about the “full blood” or the “half blood”, it suggests that some children have a legitimacy that is different from that of adopted children, for instance. I encourage the Minister to look at whether in future SIs that type of language can be retired.

--- Later in debate ---

[Carol Monaghan]

I congratulate the Minister on her role. All of us who have had interactions with her over the last few years know that her appointment is well deserved, and we look forward to working with her in her new position.

We have discussed many times in similar debates the fact that the covenant remains very much a statement of intention without the required statutory teeth, and it is difficult to see how the regulations will change that. The big issues in the regulations are housing, education and healthcare, and I will say a couple of words about them. The hon. Member for Plymouth, Sutton and Devonport has just spoken about the changing nature of service families. Bearing in mind that we are looking at the principle of “no disadvantage”, there must also be some recognition that service families are not necessarily wives, that they are not necessarily at home looking after children, and that they are not necessarily in service accommodation. Often, they are living in their communities, and often they are husbands, partners or whatever else—there can be many different iterations of the new modern family. Sometimes, that is not captured when we look at the principle of “no disadvantage” and how we can support those families in a different environment.

I want to make a small point on education. For the last few years, Glasgow schools—I speak about them because I am a Glasgow MP, but others may know of this happening elsewhere—have asked on registration forms for an indication of whether parents are serving personnel or veterans. That is really important and allows schools to put different accommodation in place where required. I think that would be a really simple addition to schools that would not require a huge amount of funding, but would allow these families to be identified more effectively.

The Minister said that there would be no requirement for additional funding as a result of the regulations. We had a lot of discussion about this a number of years ago. If we are asking local authorities to put in place more accommodation—not just housing, but more recognition of what service personnel and their families require—there has to be a financial element. We cannot just expect local authorities that are already struggling to pick up all the slack. That is particularly the case for local authorities that are close to bases, where a lot of service personnel will move into and out of the local area. It would be useful for the Minister to say something in her response about funding for local authorities.

Many issues are not covered by the regulations. They do not cover pay or how personnel can campaign on pay-related issues. There is nothing about providing proper representation for serving personnel, in the way that many of our NATO allies do. Importantly, personnel in certain countries are able to express concerns outwith their chain of command, so that it does not cause problems for them. It would be good to see how we are going to put in place such an opportunity for service personnel, if we do not have proper representation for them.

It is good that LGBT veterans are now able to respond to the independent review. I encourage the Minister and the Government to listen carefully and to respond quickly, because for many decades many of those veterans have been living with the result of what happened to them. They need some resolution. We know that there is an issue to be dealt with quickly.

I also want to mention accommodation and housing, in particular for veterans. Many veterans have additional needs because of their service, including disability. I mention the work of the Scottish Government in mitigating the bedroom tax: if veterans need an additional room for equipment they require, they are not expected to shell out additional money. It would be good to hear whether the Minister is to take any action to replicate the work of the Scottish Government.

Moving to service justice, the SNP’s position is that serious cases of sexual assault, rape or gender-based violence should be processed and tried in civilian courts, rather than in the service justice system. The Minister spoke about the representation of women on the court martial boards, but a minimum of one woman is not enough. There has to be far greater representation if we are looking at the issue.

The Centre for Military Justice gave some evidence to the Defence Committee stating that the outcomes of rape and other sexual assault cases heard in military courts are much lower compared with civilian courts. The then Secretaries of State for Home Affairs and for Justice—the right hon. Member for Witham (Priti Patel) and the right hon. and learned Member for South Swindon (Sir Robert Buckland)—both talked about how they were deeply ashamed of the rape conviction rate. The Minister has spoken up extensively on behalf of women personnel, but it would be good to hear of some strengthening and of such cases being heard in civilian courts, rather than military courts.

To give some figures, of 48 rape trials at court martial in 2017, only two resulted in a conviction. In 2018, the number of rape cases fell dramatically, and I think we can understand why when the conviction rate is so low: there were only 10 cases, resulting in just three convictions. In 2019, 15 cases resulted in only three convictions.

That is not good enough, and the signal it gives to female personnel is not the message that we should be giving. We should be saying: “We will listen to this case. It will be heard fairly.” It should not only be heard, but investigated first of all by people with expertise—particular expertise of dealing with rape or sexual abuse. Having that specific expertise goes beyond what we can expect of military police and investigators in the military to have; it has to be done by the professionals who have such expertise.

Accused service members going through a court martial are allowed to introduce evidence of their good character. If I were the victim and hearing evidence of the accused’s good character, it would sound to me as if that somehow negated their poor behaviour. We have to be careful about the messages. In short, we seem to be saying: “If you are an excellent soldier, it doesn’t matter so much if you are a violent felon.”

I would also like to hear a bit about child recruits aged 16 and 17. According to MOD figures, 22 such recruits at the Army Foundation College were victims of sexual abuse last year. What has been done about that and to ensure that child protections and safeguarding are in place for youngsters?

Both SIs are steps in the right direction, but what sort of evaluation has the Minister planned? Will action be taken as a result of increased numbers of rape trials, for example? People need to understand that there will be a more effective system in place. Finally, I know that the Minister has the interests of personnel—particularly female personnel—at heart, and I look forward to working with her over the next few years.

--- Later in debate ---

[Sarah Atherton]

I am sorry, Ms Bardell. We have a newly appointed provost marshal. I am very keen for victims to be at the centre of all the policies as our service families go forward.

[Carol Monaghan]

It is good to hear that accusations of rape can be taken out of the chain of command, but who will victims be able to raise their concerns with? Will that particular person be properly trained to deal with crimes of that nature?

[Sarah Atherton]

If there is an allegation of rape, the service personnel can now go to the civilian police; granted, it does not happen that often, because of the institution of the MOD, but they can and do have that option now. The list I gave is all about training the service police and the investigators about what to do properly. A lot of these policies and procedures in the service justice system are now aligned with the civilian justice system, which we hope will increase and maintain the speciality of serving police.

[Carol Monaghan]

I thank the Minister for that, but I will push her a little further. In the civilian police, there are people specifically trained to deal with such allegations; they do not deal with a wide range of allegations. It would be useful to know that that is the same in the military; that there are people specifically trained to deal only with these types of allegations, and that people would interact with somebody who has that expertise.

[Sarah Atherton]

There is already a system in place. Victim officers are assigned to cases such as this, but I identified in my report the fact that sometimes they were good and sometimes they were not; there was a training programme to ensure that everyone reached an acceptable level. They are assigned someone to help them through the process.