Armed Forces Bill

Debate between Lord Craig of Radley and Lord Thomas of Cwmgiedd

Consideration of Commons amendments
Tuesday 14th December 2021 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

I rise to support Motion A1 in the name of the noble Lord, Lord Thomas of Gresford. The key issue is trial by jury. I completely accept the improvements in the service justice system—I saw them in my former role as Lord Chief Justice. However, the Minister does not grapple with the fundamental issue: why take away the right to trial by jury? It is important, because sometimes Ministers misspeak on the “Today” programme, to see what the Deputy Prime Minister wrote in this morning’s Times:

“Trial by jury is another ancient right, applied variably around the UK, that doesn’t feature in the ECHR, but will be in our bill of rights. We should be proud of our history of liberty—and preserve a human rights framework that promotes it.”


It seems inconsistent with that declared policy of Her Majesty’s Government that the Ministry of Defence opposes the fundamental right of trial by jury for those who put their lives at risk for our country. That is what this amendment has at its heart.

It seems to me that by their support of this amendment in the course of debate, the Opposition have accepted that a mistake was made in 2005 when the right to trial by jury was taken away from those in the armed services for these very serious offences. Why does the Ministry of Defence not have the courage to admit that a mistake was made and restore the fundamental right of every member of the Armed Forces to trial by jury for these most serious offences?

[Lord Craig of Radley (CB)]

My Lords, I give a cautious but warm-hearted welcome to the remarks and undertakings from the Dispatch Box by the Minister about my amendment. She will recognise that the amendment last week required a report from the Secretary of State about why he, and so central government, should not have statutory authority or due regard. As the Government have stated in both Houses that they have reached the view that legislation is not necessary, it should not have been unduly onerous or difficult for them to explain why in a report to both Houses in the six-month timeframe. Now, however, I sense a changing view and the need for a longer period before making a report.

This change of view is most welcome. It has effectively been demonstrated since Report by the decision of the MoD to refer the case of the Hong Kong Military Service Corps to the Home Office, from one central department to another, dealing with a veterans issue that could not be gripped at devolved or local authority level. However, the MoD must continue to discharge its responsibilities to those veterans. It must continue to take an active interest in their plight until the Home Office responds. Will the Minister give that undertaking now? It should not need to wait for further consideration under the Nationality and Borders Bill when it comes to this House. My hope is that the Government will take “nonne” or a “ne” rather than a “num” approach in answering the request and reporting on why central government must have a legal covenant duty of due regard.

I am very conscious that time is pressing to gain Royal Assent, without which the Government have no statutory right to military forces. I was also somewhat reassured by the Minister’s statement in the other place, so I have not moved any further amendment. I thank the Government for conceding that the role of central government must be considered and reported upon to Parliament.

Armed Forces Bill

Debate between Lord Craig of Radley and Lord Thomas of Cwmgiedd

Consideration of Commons amendments
Wednesday 8th December 2021 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, I will speak to Motion B1 in my name. It was a great disappointment that the other place was not prepared to accept this House’s well-supported amendment, originally proposed by the noble and learned Lord, Lord Mackay of Clashfern, and to which I readily added my name. With his vast and rightly respected experience, he considered that the Secretary of State should have a statutory duty of due regard for veteran affairs. The telling example of Gulf War syndrome was mentioned. Noble Lords will recall that the Government of the day were reluctant to see or treat this issue with the seriousness it seemed to deserve. It affected a considerable number of service and ex-service personnel who had served in Operation Granby in the first Gulf War of 1991.

A number of noble Lords, dismayed by the Government’s decisions just to set up further studies, arranged an independent inquiry chaired pro bono by a distinguished Law Lord, Lord Lloyd of Berwick. He conducted a fair and exhaustive inquiry to which I, as Chief of the Defence Staff during the conflict, gave evidence. But no Government Minister was prepared to be interviewed, or even to attend any of the hearings. That was an example of impact on veterans that was not solvable at local level.

At Report, I quoted another example, that of the veterans of the Hong Kong Military Service Corps, whose long-outstanding case also could not be resolved at devolved or local-authority level. I understand that the MoD has passed this case back to the Home Office, but I hope that the MoD still sees it as a veteran case that deserves its continued interest and a responsibility to see it finally settled. It would be most unsatisfactory, when dealing with the concerns of veterans, for the MoD and the Secretary of State not to continue to be seen to be actively supportive of their veterans. A statutory requirement for the Secretary of State to pay due regard and be seen to discharge a duty of care for veterans seems more important than ever. Serving personnel, soon to be veterans, may well have been involved in live operations that, more than ever, are subject to active ministerial oversight and even direction. Looking to the future, assuming the media reports of hearing damage to soldiers testing the Ajax AFV to be true, this could become a veteran issue—an issue that needs a duty of care for all the veterans as a group, not just individually, where there might inevitably be differing outcomes causing lasting resentment.

This amendment therefore gives the Secretary of State time to consider his responsibility further and report to Parliament. As the amendment spells out, it requires the Secretary of State to detail

“the implications of not applying the same legal responsibility to have ‘due regard’ under the Armed Forces Covenant to central government as the Act requires of local authorities and other public bodies.”

It has been argued that the Secretary of State believes that he and central government already bear this responsibility. Why, then, is there this reluctance to spell it out closely in statute?

The Minister in the other place made the particular point that, because the Secretary of State makes a report to Parliament annually, he is fully discharging his duty of care for veterans. But it is not just a moral duty; the Armed Forces Act 2011 made reporting annually a statutory requirement, so it seems to follow that “due regard to” should be enacted; otherwise, the statutory responsibility is confined just to reporting.

The Minister in the other place said that,

“responsibility for the actual delivery of nuts-and-bolts frontline services and their impact … rests at local level”.—[Official Report, Commons, 6/12/21; col. 99.]

He made no mention of the heart of your Lordships’ case, that there were some issues that could not be dealt with at local level. Why was this not considered? All he said was that the inclusion of central government was simply unnecessary; he did not explain why. As I have just mentioned, the MoD has passed the case that I cited on Report of the Hong Kong veteran to the Home Office; one central department having due regard has passed it directly to another. I rest my case.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I entirely support what the noble and gallant Lord, Lord Craig of Radley, has just said, but I want to add a word on Motion A1. It is clear that the overwhelming majority of people with real experience of the criminal and military justice systems support that Motion A1. The Minister is quite right: the service justice system has improved enormously over the past few years, but there is a fundamental respect in which it is different—that is, that there is no trial by jury. Trial by jury is the essence of our system. It gives confidence to the victims, which is critical in the very serious crimes that we are considering, and it is a fundamental right of the defendant. We should not do anything to take those rights away or to undermine confidence; that is the fallacy in the Minister’s argument.