Defence Reform Bill

Lord Davies of Stamford Excerpts

Tuesday 11th February 2014 Grand Committee

[Lord Robertson of Port Ellen]

I would like to say a few words in relation to some of the more general issues concerned here. I return to the question I asked about SDSR 2015 because it concerns me that we might be going through exactly the same kind of exercise as we did for the SDSR that was done previously in six months. I do not want to draw any comparisons with the one that I supervised in 1998; it lasted a lot longer than it should have. It still managed to do so but it was affected by the circumstances which came after it, as the noble Lord, Lord Dannatt, said. However, it did not become outdated as quickly as the SDSR that the new Government brought in, which quickly came face to face with the reality of Libya after it was put in place. It focused on 2020 but was then faced with the situation in Libya as well.

Importantly, the defence review that we did in 1998 established a consensus. Perhaps for the first time in military history, the review was accepted by all the defence chiefs both in public, as one might have expected, and in private because it represented a view that was consensual. After the new Government came into place, we embarked upon a consultation exercise that made sure that all the stakeholders had an opportunity to express a view. The Ministers, Robin Cook and myself, and the Permanent Secretaries in the Ministry of Defence, the Foreign and Commonwealth Office and the Department for International Development did a roadshow that went round the country, and which also embraced pretty much every stakeholder in the business. When it came out, it was therefore a genuine security and defence review.

The failure of the last SDSR was, essentially, that it was a Treasury-led exercise, done far too quickly and involving far too few elements. I fear that that is precisely what is happening at this stage. I have consulted the Opposition to see whether anybody has bothered to ask them about the initial preparation or any of the discussions taking place at present, and the shadow Defence Secretary assures me that no such approaches have been made. We look as though we are again getting ourselves into the trap of something being prepared at or around the next election campaign, which will essentially be based on a Treasury view about what the country can afford and how the rest of it fits into that.

[Lord Davies of Stamford (Lab)]

My noble friend is saying some important things but does he agree that if the Government are serious about producing or drafting an SDSR, they ought at an early stage to be consulting not merely with the list of people who he quite rightly set out—the academics, think tanks and other stakeholders in this country—but with our allies, particularly the United States and our EU allies? If they do not consult them, the review that comes out may be inconsistent with the strategic intentions and plans of our key allies. Opportunities for fruitful collaboration or for the division of labour will be lost and it may well be that unfortunate misunderstandings will be sown.

[Lord Robertson of Port Ellen]

Indeed, my noble friend makes an extremely good point. In many ways, it goes without saying. It may well be that there are some discussions going on with our allies and inside NATO about it. I would hope so, although I am a bit pessimistic about most of these things since it becomes opaque. Part of the dispiriting nature of the way in which the British political system works is that you go from everything to zero quickly, as my noble friend will know only too well from being in government. In government, you know everything and then when you are in opposition you are allowed access to pretty much nothing at all. Therefore, having been Secretary-General of NATO and knowing everything that was going on inside that organisation, it was a grim experience to then dredge the newspapers and the occasional website to try to find out what was actually going on. The point that is being made is that the widest possible consultation is required, so that, at the end of the day, the review is fixed, has traction and makes sense in the light of the international circumstances as well as of domestic public opinion. Without that, it will fall apart, and fall apart quite quickly.

--- Later in debate ---

[Lord Davies of Stamford (Lab)]

My Lords, the Minister made a full and comprehensive speech under Amendment 18. It was a very good speech and set off a kind of Second Reading debate, which was quite interesting. I broadly agree with him. As he knows, I utterly deprecate the reduction in our Regular Forces and our equipment capability, which this Government have brought in, but it is even more vital in that light that we make a success of our campaign to recruit more reservists and to train and equip them properly. Nobody on this side of the House in any way disagrees with the Government in that respect or does not want to do everything possible to make sure that that effort is a success.

However, I want to make one comment. There is a lack of clarity and frankness still about how we are planning to deploy our reserves under the new system. I am very glad that the Minister did not say, although I have heard it—and, evidently, from his speech the noble Lord, Lord Dannatt, has also heard—from government Ministers in the past few years that, “We’re reducing the regulars but we’re compensating by increasing the reserves”. That would be utterly irresponsible. There is no doubt at all that in certain areas such as those the Minister mentioned, including medics and signals experts, reservists may well play the majority part in future combat operations. But when it comes to the infantry it is extremely difficult—with the best will in the world and with motivation and discipline and morale being entirely equivalent, which is the most that one can hope for—to train up reservists to exactly the same level of confidence and alertness that the regulars have. It is therefore very difficult to avoid feeling that, if you deploy large numbers of reservists on combat operations, you will not have a higher casualty rate, which would be very irresponsible.

We have successfully deployed on an embedded basis individuals who have been chosen for that in Iraq and Iran, with front-line troops going on patrol and so forth and fighting intensive warfare. The Government need to be clear about this because reservists need to know whether under the new regime they still have a chance of that kind of experience. As I have said to the Minister privately, if they do not you may not succeed in attracting the same calibre of people into the reserves. On the other hand, with the numbers going in both directions—the decline in the regulars and increase in the reserves—it is not going to be possible to deploy large numbers of reservists, because the success of employing them on an embedded basis depends on selecting individuals and making sure that the number of reservists is relatively small in relation to the regulars, who are committed to a particular intensive operation.

I want the Government to be absolutely clear about this. There should be no beating about the bush at all. It is perfectly respectable to say that those with medical and signal skills will not be needed the whole time on a contingency basis in the regular forces but we will need to draw on them—and, in any case, we need those people to be able to exercise their own professional activities and gain skills in the civilian sector when they are not being deployed on operations, so they will be deployed on the front line, as they have been up to now. We have to be absolutely clear about our intentions for reservists, and it is really that they should not be deployed in high-intensity warfare. When the Minister said—slightly vaguely, I thought, avoiding this issue—that they would be in supporting roles, which essentially means that they would be behind the wire rather than outside it. We should be clear about that, but it is probably the right solution in all the circumstances. We need clarity, and we have not had it on that point.

Apart from that, I agreed very much with the Minister’s speech, which I thought was good. This Bill is rightly generous—I do not complain about that—to employers and reservists in the financial incentives and protections that it sets out. However, my reason for speaking on this clause is that I am slightly worried. This is not a vastly or historically momentous point—far from it—and it is not one on which I have put an amendment down, although I suppose I could table one at Report, if needed.

A potential loophole is provided by Clause 47—almost a manhole in our path that some people might fall down. Therefore, I want to raise this whole matter, and I hope that I get some reassurance. The object of Clause 47 is to provide protection for reservists who have been less than two years in employment and who then face the sack wholly or partially because of their membership of the reserve. Beyond two years, they have the protections that everyone has under the Employment Rights Act and a section—I cannot remember the number—of the Reserve Forces Act that makes it clear that people cannot be sacked when they are deployed, at risk of being deployed or about to be deployed.

--- Later in debate ---

[Lord Astor of Hever]

My Lords, I apologise to the noble Lord for the length of my speech on the last clause. It contains important issues and I wanted to cover them in some detail.

[Lord Davies of Stamford]

My Lords, I must have given the wrong impression. In no sense was I complaining about the length of the Minister’s speech. I thought I had congratulated him on a comprehensive speech, which had started an interesting debate.

[Lord Astor of Hever]

I apologise. Perhaps I misunderstood when the noble Lord referred to Second Reading speeches. Anyway, I hope that I answered all the important points.

The noble Lord referred to the lack of clarity in deploying the reserves, especially the infantry. The pairing of regulars and reserves on high-intensity combat will include individuals and up to sub-unit level. We are changing the mobilisation limits to 12 months to enable greater pre-deployment training. I mentioned earlier—I am sure the noble Lord will welcome this—that we must get more of the niche skills in the cyber field and in the medics, who we do not need the whole time.

On talking to the reserves—I am sure the noble Lord has also done so—I found that a number of them want to deploy. When the noble Lord was a Defence Minister, I went to Afghanistan on a couple of occasions and I met a number of reserves, who were very well trained. All the regulars to whom I spoke were very impressed by the reserves and how well they trained and fitted into the Regular Army. I do not think that there is any pressure on them being embedded with the regulars, and it is our plan that they train together and use the same equipment. I should like to organise for noble and gallant Lords a visit to a reserve unit paired with a regular unit to talk to the soldiers.

[Lord Davies of Stamford]

I thank the noble Lord and totally agree about this. The reserves have done a wonderful job. I pay tribute to them. We have all paid tribute to them. I used to go to Afghanistan and Iraq every six months when I was in the MoD, and I saw them on the front line in exactly the way the Minister describes. As he knows, reservists take it as a matter of enormous professional pride—it is a thing they really want—when their regular colleagues forget that they are reservists. That does happen. You hear that from both sides. That is a tremendously high standard to achieve. People go into the Reserve Forces because they are prepared to put themselves through the hell of training up to that level and to risk their lives when they are deployed. That is the military experience they want. If they are going to have that on offer in future, they must be honestly told that. If they are just going to be deployed behind the wire or on UN peace-keeping operations, they need to be told that too.

[Lord Astor of Hever]

The noble Lord makes a very good point. I will take away the points he made earlier about Clause 47 and write to him on them. The noble Lord, Lord Robertson, mentioned the Ashcroft report. If there is an appetite for it, I am very happy to organise a Peers’ brief on it. Perhaps noble Lords will get back to me on that.

--- Later in debate ---

[Baroness Garden of Frognal]

My Lords, I have considerable sympathy for the spirit of the amendments spoken to by the noble Lord, Lord Rosser. There was a deal of concern expressed at Second Reading over the impact on civilian employment of the additional levels of readiness and the additional time involved in the new recruit programme. Trying to safeguard both sides was discussed then.

I picked up a leaflet at the MoD a few days ago which under “The Employer Proposition” states:

“We will develop an open and predictable relationship by: ensuring that reservists notify employers of their reserve status”,

with a rider that it is “subject to security considerations”. That part of the concerns of the noble Lord, Lord Rosser, is already being dealt with. Another paragraph of the leaflet states:

“We will introduce a new National Relationship Management scheme to establish strategic personnel relationships with major employer organisations, relevant trade bodies and the largest employers”.

It is essential for the success of this scheme that the Government have an ongoing dialogue with employers to make quite sure that their concerns are met, as well as making sure that the rights of reservists in connection with their employment are met. I hope that the Minister will be able to reassure us that the concerns which the noble Lord, Lord Rosser, has raised are already being dealt with and considered, and that safeguards have been put in place by the Government.

[Lord Davies of Stamford]

My noble friend’s amendment is testimony to what I spoke about earlier—the complete commitment on this side of the Committee to try to ensure that we successfully recruit and train the projected number of reservists. It would be intolerable if people who had signed up to fight for their country were subject in some way to discrimination in the employment and labour markets. Discrimination because of their sex, colour and so on is now regarded as utterly intolerable. My noble friend’s amendment is therefore absolutely appropriate.

I should make one final point. I think that I am right—the Minister will know the details—in saying that similar protections are available to members of the National Guard in the United States. We all know that the National Guard is extremely successful at recruiting and that it has enormous public support, including among employers, so I do not see any difficulty of the kind suggested by the noble Baroness whereby employers might reasonably resent such a provision. We all know that the National Guard in the United States plays a key role in the defence capability of that nation and is regularly deployed on operations. We should be encouraged by the experience of the United States to pursue the line adopted in my noble friend’s amendment.

[Lord Astor of Hever]

My Lords, we recognise and value the contribution of reservists and need to be sure that their interests are properly protected. Part of this is making sure that their reserve service does not negatively affect their employment prospects. That is why Clause 47 amends the Employment Rights Act 1996 to remove the current two-year qualifying period for claims of unfair dismissal where the reason for dismissal is, or is primarily because, the individual is a reservist.

I should emphasise that protection is already in place to ensure that reservists are not dismissed as a result of any duties or liabilities that they have to undertake, for example as a result of being mobilised. This protection is provided by the Reserve Forces (Safeguard of Employment) Act 1985, Section 1 of which gives a reservist who is called out for reserve service the right to apply to his or her former employer to be reinstated after they return from mobilised service. In addition, Section 17 of the 1985 Act makes it a criminal offence for an employer to dismiss an employee solely or mainly by reason of any duties or liabilities that may arise as a result of being called out.

One key strand of the White Paper was to foster an open and honest relationship with employers. Employers of reservists make a greater contribution to national security than others. We understand and value the commitment that employers make. We have seen from some of the evidence submitted—I am thinking particularly of that from the Confederation of British Industry—that employers are wary of the introduction of discrimination-type legislation, and that such an approach would run counter to the partnership approach that is needed between employers and defence. CBI members were particularly concerned that such an approach could strain working relationships between employers and reservists.

As part of this partnership approach we will: provide employers with greater awareness and predictability of training and mobilisation commitments; streamline the administrative arrangements to receive financial assistance when a reservist is mobilised; introduce additional financial incentive payments to micro, small and medium-sized enterprises; and provide appropriate recognition of the contribution that these employers make by enhancing our existing recognition schemes.

Subsection (1) of the proposed new clause in Amendment 18B would mean that Section 39(4) of the Equality Act 2010 would apply “as if membership” of the Reserve Forces “were a protected characteristic”. Surely, membership either is or is not a protected characteristic. The advice from the Government Equalities Office is that being a reservist would not count as a protected characteristic as defined in the 2010 Act—in other words, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, and sex or sexual orientation.

There have been occasional calls for various characteristics to be given protected status, particularly during the preparations for the Equality Act. These were mostly in relation to some form of physical appearance, ranging from extremes in individuals’ height and weight to the way in which people may choose to dress. However, after full consideration, the list of protected characteristics was set as already outlined. Including reserves as a protected characteristic in the Equality Act would be a disproportionate tool to tackle the problem and could give rise to the same argument being deployed successfully in relation to a number of the physical characteristics that I mentioned. This could have the result of doubling the number of characteristics, which would have an increased on-cost to businesses, public authorities and the courts.

--- Later in debate ---

I thank my noble friend Lady Garden for her support, and I hope that I have satisfied the concerns of the noble Lord, Lord Rosser.

[Lord Davies of Stamford]

Would the noble Lord be kind enough to address my point about the National Guard in relation to Amendment 18B? We should bear in mind that any employers’ organisation—like any other trade association or representative body—is always likely, when a new idea is put to it, to adopt a defensive, cautious position and focus on the difficulties. Good government surely does not consist of abandoning a good idea at the first hurdle. Has the MoD explored the experience of the National Guard in this context in the United States and, if so, could the Minister let us know the conclusions of that study?

[Lord Astor of Hever]

The noble Lord makes a very good point about the National Guard, and I apologise if I did not refer to it in my response. This is quite a detailed subject. I will write to the noble Lord and copy my letter to the other noble Lords who have taken part in this debate.

--- Later in debate ---

[Lord Palmer of Childs Hill]

My Lords, I hope that the Minister will include in his reply what instances there have been of confusion about what a “service person” should be. I would have thought that under existing legislation “service person” would include all the things that are included in proposed new subsection (7) in the amendment. Has there been any experience that “service person” has not been taken to include the people mentioned here? It seems a rather worthy thing to protect people even more and make sure that they are included in the criminal justice legislation, but I wonder whether there is reason to believe that any of this has been necessary in the past.

[Lord Davies of Stamford]

My Lords, when in 2007 I chaired the national inquiry into the national recognition of the Armed Forces, this was one of the recommendations that we made. We made 40 recommendations, 38 of which, including Armed Forces Day, automatic parades for units returning from combat missions and so forth, were accepted. Two were not, and this was one of them. The other one was having an officer of the Armed Forces permanently available in the House of Commons, probably in the Library, to inform people about any military matters that they might have questions about. In that report, to which I refer the noble Lord, Lord Palmer, we cited a number of cases of grievous assaults perpetrated on members of the Armed Forces, and I am afraid that the problem has not gone away. Over the past six years or so, there have been other incidents which the Committee will know about. I retain my support for this amendment.

It has one curious feature but I think I know the explanation. It is that the protection seems to be designed merely for members of the Reserve Forces but does not currently exist for members of the Regular Forces. I imagine that it is because including all members of the Armed Forces could have been outside the scope of the Bill. I therefore imagine that my noble friend, with whom I have not discussed this matter, had this in mind as a probing amendment to try to push the way forward to achieve what we really need, which is the kind of legal protection for all members of the Armed Forces—all those who wear the Queen’s uniform—who are prepared to lay down their lives for the rest of us. The least we can do is to make sure that they do not suffer discrimination or, in this case, violence, potentially, when they are in their home country.

[Lord Palmer of Childs Hill]

My Lords, perhaps I may ask for some elucidation. I accept all the points that the noble Lord has made about his time in the MoD and his knowledge of this subject. Obviously these incidents have happened, but do we need legislation such as this to identify it or were the perpetrators of these actions against the service people he mentioned dealt with by the law at the time?

[Lord Davies of Stamford]

My Lords, I do not know that I should get into the habit of answering questions across the Floor. I would love to be a Minister again but that has not happened to me so far. I shall have to wait a bit longer. However, I shall of course respond to the noble Lord. There are the normal legal protections against assault from which he and I and every other citizen benefit. Clearly, it is a criminal offence. However, the purpose of this amendment, as I understand my noble friend, is to make it an exacerbating factor if the reason for the assault is that the victim is a member of the Armed Forces. That provides a special protection for those who might otherwise be especially vulnerable to this kind of attack. It is similar to the exacerbating factor that we already have of the motive, or part of the motive, for an assault being racial. We introduced that for a section of the community whose members might be innocent victims of gratuitous attacks which otherwise would not occur. Therefore, there is a complete analogy there and I think it was the analogy which, rightly, inspired my noble friend—if I may be so bold as to presume to answer for him—to conceive this amendment.

[Lord Astor of Hever]

My Lords, I am sure that I speak for all of us in saying that we hold the same view about discrimination against members of the Armed Forces. It is a completely unacceptable form of behaviour towards the men and women who have committed themselves to defending this country, its people and its way of life, and to making sacrifices that others perhaps sometimes take for granted. Those who discriminate against service personnel, or against the wider Armed Forces community, succeed only in diminishing themselves.

Discrimination can take many forms. Some of it is thoughtless or uninformed—for example, when public services fail to take account of the special circumstances in which Armed Forces personnel find themselves. Some of it is based on myth and prejudice—a view that soldiers create trouble or are unreliable customers is a misperception that we must challenge. However, some discrimination or abuse stems from genuine hostility to members of the Armed Forces, motivated by politics or perhaps by some unfortunate personal experience. It is on that narrow part of the spectrum that this amendment focuses.

The amendment would have the effect of amending Section 146 of the Criminal Justice Act 2003, which lays down circumstances in which the seriousness of a criminal offence, and thus the severity of the resulting sentence, is increased. It provides for increased sentences where an offender demonstrated hostility based on the victim’s sexual orientation, disability or transgender status, or where the offence was motivated by hostility towards persons of a particular sexual orientation, persons who have a disability or persons who are transgender. Section 145 of that Act makes similar provision in respect of “racially or religiously aggravated” offences.

The amendment would provide for increased sentences where an offender demonstrated hostility based on the victim being a,

“member of the reserve forces”,

or indeed,

“any relative of a member of the reserve forces”.

It would also provide for increased sentences where an offence was motivated by hostility towards members of the Reserve Forces.

It is important that we are clear about what the amendment would not do. It would not cover situations such as a refusal to admit members of the Armed Forces to a hotel or bar. Such situations have led to widespread public indignation but they generally do not involve a criminal offence.

The Government’s view is that there is no need for a change in the law on these lines. The courts already have a wide power in sentencing to take into account factors that make conduct more serious. Criminal acts based on irrational hostility to a person because he or she is in the Reserve Forces may lead to a higher sentence in any event. I am not aware of any evidence of courts finding that they have insufficient powers to give an appropriate sentence to an offender in such circumstances, or that we have received representations from the courts asking us to amend the law in this way.

In contrast, converting the flexibility that the courts currently have into a mandatory requirement, as the amendment proposes, may present practical difficulties. For example, demonstrating to a court that the aggravating factor was present and should be taken into consideration could be relatively straightforward in some cases, such as where a victim was in uniform, but far from straightforward in other cases, such as those in which the victim was a relative of a member of the Reserve Forces. How are the courts to deal with a situation where an offence is motivated by excessive rivalry between different sections of the Armed Forces or, perhaps, a domestic dispute? A mandatory requirement for a higher sentence reduces the court’s ability to take a sensible, common-sense approach to what is really going on in the circumstances it is examining.

There is a fundamental difference between offences provoked by hostility to the work of the victim and offences motivated by prejudice against inherent characteristics, such as homophobic crime. Section 146 of the 2003 Act is designed to help to change deep-rooted prejudices. It would be quite wrong to suggest that such provisions were necessary in relation to the Armed Forces. However, the most telling argument against this amendment is the views of the intended beneficiaries. I am not aware of any general desire in the Armed Forces community for legislation of this type. The service men and women who wear their uniforms with pride want to be respected in and considered part of their communities, and rightly so. We should not put them in a position where they are forced to explain why they require protection in law in a way not enjoyed by, for example, firemen or ambulance staff. Indeed, the amendment deals only with members of the Reserve Forces, as the noble Lord pointed out. It would not extend to members of the Regular Forces, meaning that rather than helping create the whole force which we seek the amendment would separate out members of the Reserve Forces for different treatment in law. I am not sure whether they would wish to see that in this context.

None of this means that the Government are complacent about discrimination against service personnel: quite the opposite. The Armed Forces covenant has a high profile across the whole of Whitehall and beyond. The first principle, that members of the Armed Forces community should not suffer disadvantage as a result of that membership, has given rise to many initiatives which are making a real, practical difference. In the first statutory annual report on the Armed Forces covenant, published in December 2012, we described what we were doing to make these principles a reality. We are working to remove the disadvantage that the children of service personnel can face in the schools system as a result of their mobility through the admissions code and the service pupil premium. We are ensuring that service personnel and leavers encounter a level playing field in access to social housing or Government-funded home ownership schemes.

At the same time, we are working to build the links between the Armed Forces community and the wider community to improve the knowledge and understanding that must be at the centre of that relationship. From knowledge flows the esteem for our service men and women that is ultimately the most powerful way to counter discrimination. The community covenant has now been signed in nearly 400 local authority areas, from Cornwall to the north of Scotland, and around 60 companies have signed up to the new corporate covenant, signifying a real determination to strengthen ties with the Armed Forces. I am confident that it will continue to gain further support. The grant scheme linked to the community covenant has allowed us to back a range of schemes that will help to put these declarations into practice. To that, we can now add the £35 million fund created as a result of the LIBOR fines, which will support charities with projects to help the Armed Forces and their families.

This is not an entirely new proposal. Thomas Docherty MP previously raised this issue in a Private Member’s Bill and has another for consideration this year, with its Second Reading having been scheduled for 24 January. The debate was adjourned and is expected to resume on 28 February. The previous Government, in response to a similar recommendation in the 2008 report from the then Member for Grantham and Stamford, now the noble Lord, Lord Davies of Stamford, said,

“we do not think that a change in the law is necessary or appropriate.”

As a result of the Armed Forces Act 2011, we have a new vehicle at our disposal in the form of an annual report to Parliament—effectively a report on the state of the Armed Forces covenant. In February of last year, my right honourable friend, the member for Rayleigh and Wickford, the Minister of State for the Armed Forces, indicated that the question of discrimination would be a legitimate issue for the next report at the end of 2013. The report, published on 16 December 2013, said:

“Our view is that, in the last year or so, the extent of public knowledge and sympathy for the Armed Forces has continued to grow—aided by the Community Covenant and the new Corporate Covenant. We therefore continue to believe that education, rather than legislation, is the key to eradicating the kind of behaviour that we all abhor”.

In answer to the question from my noble friend Lord Palmer about what instances there have been of service personnel not taken to include those in the amendment, we recognise a service person as a regular or reserve member of the Armed Forces. Proposed subsection (7) in the amendment seems to be drafted to enable debate in this Committee otherwise it would be out of scope, as it was judged to be in the House of Commons. The noble Lord, Lord Davies, asked about legal protection. Legal protection for all Armed Forces personnel would be out of scope of this Bill.

I hope that I have answered all the noble Lord’s concerns and I urge him to withdraw his amendment.