Armed Forces Bill

Lord De Mauley Excerpts

Tuesday 6th September 2011 Grand Committee

[Lord Young of Norwood Green]

I would like to make a short contribution to this debate and declare an interest as a former member of the Armed Forces Pay Review Body. I echo the comments of my noble friend Lady Dean because my experience was very similar. I met lots of young people whose lives were going nowhere and whose education was little or nothing. They owe a debt of gratitude to the Armed Forces for turning their lives around, giving them some education, giving them a sense of purpose in life, enabling them to work as part of a team and so on. There are therefore a lot of positive things that the Armed Forces do that we ought to pay tribute to.

I am not one of those who feel we have to apologise for recruiting people at the age of 16. Along with that right there is a responsibility and we need to make sure we get the balance right in terms of vocational training. If we tried to propel all these people down the A-level route, it would not fill them with glee. Getting the right balance of practical vocational training along with accredited educational achievements is something they would aspire to. Some of them will go on and a lot of latent talent will emerge.

Along with the right to recruit people at that age, there is also a responsibility. The question of informed consent exercises a number of us. When they reach the age of 18, or just before, as suggested under my noble friend Lord Rosser’s Amendment 22, there ought to be a proactive process within the Armed Forces whereby they contact the young person concerned, make them aware of what stage they are at, and help them to make an informed decision.

My last point is that the Armed Forces do great things. My noble friend Lady Dean pointed out that when young people are part of the Armed Forces, they have a sense of direction and know where they are. Unfortunately, we know that when people leave the Armed Forces they no longer have the comfort of being part of the organisation, so the point about getting resettlement right for those who decide they do not want to stay in the Armed Forces any longer is an important one.

[Lord De Mauley]

My Lords, before I respond to these amendments, I should declare two interests—one as President of the Council of Reserve Forces’ and Cadets’ Associations and the other as Colonel Commandant of the Yeomanry.

The amendments in this group all deal with the matter of under-18s serving in the Armed Forces. I welcome the efforts of noble Lords in reminding us that the welfare of those who join under the age of 18 is very important indeed and I thank all those who have moved amendments and spoken today. I can assure your Lordships that the Ministry of Defence is well aware of the need to ensure that these young people live and work in an environment which safeguards their interests and wellbeing, and I thank in particular the noble Baroness, Lady Dean, and the noble Lord, Lord Young, for their helpful and positive comments to this effect. I welcome the suggestion of the noble Baroness, Lady Dean. Things have been improving and will continue to improve, but we can always do better.

A great deal of close attention has been focused on this whole area in recent years, especially after the tragic deaths at Deepcut. We now have robust and effective safeguards in place to ensure that under-18s are cared for properly. Moreover, as the noble Lord, Lord Tunnicliffe, suggested and I can confirm, no service person under the age of 18 is to be deployed on any operation which will result in them becoming engaged in or exposed to hostilities. And recently we announced a change to the right of discharge for those under the age of 18. I shall come back to this in a moment.

Through Amendment 6, the noble Lord, Lord Judd, seeks to include service personnel under the age of 18 as being within the group covered by the Armed Forces covenant report, which is a laudable objective. However, the guidance accompanying the Armed Forces covenant, which we published on 16 May, is quite explicit. It states that:

“Special account must be taken of the needs of those under 18 years of age”.

I can assure noble Lords that we will not forget this aspect of our responsibilities for service personnel. The Armed Forces covenant report is to be a report about the effects of service on servicepeople, so as regards Amendment 6, minors under the age of 18 are already within the definition of servicepeople in the clause. I hope that the noble Lord will accept that.

As regards Amendment 8, I have some difficulty with the wording proposed. Not only would the amendment require the Secretary of State to give particular consideration every year to the effects of service on those under 18 years of age, it would also require him to have particular regard to those effects right through until the individuals in question became veterans. It would oblige us to treat those who joined under the age of 18 as a separate category throughout their service, and perhaps even throughout their lives. I hope it will be apparent to noble Lords that that is not an appropriate distinction to build into legislation.

I turn now to Amendment 22, spoken to by the noble Lord, Lord Tunnicliffe. This provides that service personnel under the age of 18 will be required to confirm in writing that they wish to continue serving in the Armed Forces after their 18th birthday. This must be done at least three months before their birthday. As noble Lords will know, it has long been our policy to enable service personnel under the age of 18 to reconsider their choice of a career in the Armed Forces up until their 18th birthday, and indeed for three months afterwards if they have already declared their unhappiness. To that effect, we are travelling in the same direction as the noble Lord. In fact, these informal arrangements have provided our under-18s with six months more to think about whether they have made the right choice of career than would the amendment. But following a review of our discharge policy for the under-18s, this has been converted into a legal right. A regulation was introduced on 12 July this year for each of the Armed Forces to provide a new statutory right for all service personnel to claim discharge up to their 18th birthday. This new regulation is separate from and additional to the long-standing legal right of all new recruits, regardless of age, to discharge within their first three to six months of service, depending on their service, if they decide that serving in the Armed Forces is not a career for them.

Under the new regulation, everyone under the age of 18 serving in the Armed Forces already has a right to claim discharge up to their 18th birthday. For the first six months of service this is achieved by giving not less than 14 days’ notice in writing to their commanding officer after an initial period of 28 days’ service. At any other time after six months’ service, those under the age of 18 who wish to leave their service must give notice in writing to their commanding officer, who must then discharge the under-18 within the next three months. For those who give notice just prior to their 18th birthday, this means that the latest they will be discharged is at 18 years and three months of age.

The new right of discharge includes a cooling-off period to avoid the unintended consequence of a decision made in the heat of the moment. A shorter period may be agreed with the commanding officer, but three months provides the serviceperson under 18 with a period of due reflection, with appropriate guidance and the right to rescind their request for discharge. The amendment proposed by the noble Lords, Lord Rosser and Lord Tunnicliffe, adds no protection for those under 18 who are serving, and would put a staffing burden on the chain of command that I hope they will accept is unnecessary. The right of discharge is made clear to all service personnel on joining the Armed Forces. We wish to continue to ensure that those young men and women who wish to serve in the Armed Forces are able to do so, while those who realise that a service career is not for them can leave as a right. On this basis, I hope that the noble Lord, Lord Judd, will withdraw his amendment.

[Lord Tunnicliffe]

My Lords, will the noble Lord be kind enough to send me and interested Members of the Committee a copy of that regulation, and deposit a copy in the Library?

[Lord De Mauley]

My Lords, I will be very happy to do that.

[Lord Judd]

My Lords, I hope that it will not embarrass the Minister if I say that in his peroration there was no difference between us. As somebody who joined the cadet force at 14, I am very much in favour of those who are considering an armed services career being able to prepare for it while enjoying the opportunities that this presents. I have no difficulties with that. However, we want to be certain that before people get into a situation that will take them into conflict zones, they can make an informed choice. We need to make sure that we have belt and braces on that, so that they will not feel in any way pressurised or expected to stay on and are able to make a balanced judgment. I hope that the Minister will be reassured by me that there is no difference between us on this, except that I want to see a really convincing arrangement.

I will dwell for a moment on the remarks by my noble friends. I have great admiration for the consistent work that they have done for the armed services, and for the great knowledge that they bring to these matters. I make the point again that while of course very imaginative work is done at Harrogate—nobody would question that—the issue is about how far what is done at Harrogate helps young recruits to keep up with what is happening in society as a whole. I find a paradox here. My noble friend is second to nobody in arguing for improving secondary education, and for making sure that, where secondary education is failing youngsters who are not getting qualifications and do not feel that education is relevant, a lot of imagination on both sides of the House goes into how this can be tackled. Should we not take the opportunity in the armed services to be leaders in this respect rather than just saying that this has worked in the past? We should be determined that none of our youngsters will be at a disadvantage when they come out and make sure that the new opportunities becoming available to the wider community in vocational and other education are also available to them.

Finally, I drew attention in an intervention on an earlier amendment to the fact that things have moved on by light years from the time when I was a Minister in defence. Again, I have nothing but admiration for those who have made this possible. However, we have to measure it against what is happening in society as a whole, and make sure that while there is an improvement in the armed services, the improvement measures up to the changes in society. When we read of the problems of suicide and so on among young people, there is a tremendously significant issue to be faced. If one is to do research into the mental problems of some youngsters that result from being in the armed services—obviously not the majority, but a significant number—it is no good just looking at the immediate effects; one must look at the longer span and at what damage may have been done to people in later life by experiences earlier on.

Having said that, of course I will listen very carefully to what the Minister and his colleagues have to say. I hope that equally they will listen to the voice of concern. It is a voice of concern that some of us are expressing, not hostility, and I hope similarly that it will be understood that I have no option in the convention of how Committees in this Room take place but to beg leave to withdraw the amendment.

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[Lord Tunnicliffe]

My Lords, I want to make one or two general points about the approach to the Bill. We have a role as the Official Opposition to scrutinise the Bill thoroughly clause by clause. This is a particularly important role for the House of Lords and one we feel we need to discharge. In the event, Members of the Committee will note that only two amendments relate to clauses beyond Clause 2. I want the Committee to be in no doubt that this has nothing to do with the sloth of Her Majesty’s Official Opposition or other Members of the Committee, but is a commendation to the Minister and his officials on the very extensive consultation we have had, and the fact that many of the concerns we raised about the Bill have now been handled. We have been given assurances, so there is no need to bring forward amendments. I also particularly want to thank Mr Morrison for a long and complicated telephone conversation with me. I am not a member of Her Majesty’s Armed Forces, a lawyer or a former Minister in the Ministry of Defence, so frankly I did not understand how service law sits alongside normal criminal law. I thank him for taking me through it so painstakingly. It was particularly in pursuit of this clause that I sought his advice.

The basic rule is that service law and the criminal law of the land sit side by side. In round terms, a serviceman is answerable to the law of the land, and Clause 24 extends it to overseas, which seems complicated but is really very simple. A serviceman has to obey the criminal law and, broadly speaking, must obey service law on top of that. This part of the Bill is unique in that service personnel are excepted from a piece of the law which applies to civilians, and that is the Railways and Transport Safety Act 2003. Certain sections of that Act specifically except the military. The Explanatory Notes at paragraphs 36 and 37 highlight the fact that there is an exception. My first question is: why was this exception necessary? The Act itself is beautifully straightforward. I will not go into the railway area because it forms so small a part of military activity that it is not worth mentioning. How it relates to shipping is also extremely straightforward. Basically, the Act applies to,

“(a) a professional master of a ship,

(b) a professional pilot of a ship, and

(c) a professional seaman in a ship while on duty”.

The aviation part of the Act states that an offence is committed if,

“(a) he performs an aviation function at a time when his ability to perform that function is impaired because of drink or drugs”.

An aviation function is defined simply as,

“acting as a pilot of an aircraft during flight”.

Various other categories are mentioned, including members of cabin crew and air traffic controllers. It is difficult to understand why it was necessary to except the Armed Forces from this Act. I would have thought that, as a generality, one would not want the pilot of an aircraft, whether it be a military or civil craft, to have his performance impaired by alcohol. My basic proposal is to delete these two exceptions and to ask why they were necessary in the first place.

It seems that the Ministry of Defence has had second thoughts and sees the necessity of bringing a similar law into effect, which will be the effect of the various clauses set out in the Bill that relate to alcohol. However, a rather difficult idea is introduced. Instead of prescribing the roles and acts along the lines of the civilian law, the Bill states that a duty may only be prescribed if its performance while the ability to do so is impaired through alcohol and carries the risk of,

“(a) death;

“(b) serious injury to any person;

“(c) serious damage to property; or

“(d) serious environmental harm”.

The beauty of the Act is that it is extremely clear about what activities it applies to. The service law should be equally clear.

The issue of drink and safety-critical activities is close to my heart. I had an early career in aviation and then one in the railway industry. When I joined the railway industry, there were serious problems with drink and safety-critical activities. It is now a leader in the country in having a very strong campaign that has driven drink out of the industry in safety-critical areas. To do that, it uses not only the 2003 Act but also random testing. My second concern that I put to the Minister is this. In seeking to bridge the gap—obviously the department has felt it necessary to move into testing—why do the Government not produce a simpler piece of law by essentially adopting the Act and removing the exceptional clauses? Secondly, why do they not write into the Act—if they feel the need to do this by an Act—the capability of random testing, which has proved so effective in the railway industry and has contributed so significantly to the improvement in safety? I beg to move.

[Lord De Mauley]

My Lords, on behalf of the Bill team, I thank the noble Lord, Lord Tunnicliffe, for his very generous words at the start of his speech. In putting forward Amendment 23, the noble Lords, Lord Tunnicliffe and Lord Rosser, bring personal experience of the operation of the Railways and Transport Safety Act 2003 in the civilian environment, which is helpful to the Committee in considering the provisions for the Armed Forces set out in the Bill.

First, I will say something about our general approach when looking at whether to apply to the Armed Forces legislation that is aimed primarily at civilians and civilian institutions. In some areas of law, we follow closely—and in some cases apply directly—the general law that applies to civilians. As the noble Lord, Lord Tunnicliffe, said, this is most notable in the application of the criminal law and many aspects of criminal procedure and evidence. However, noble Lords will accept that the circumstances of Armed Forces life, and the need to ensure the highest standards of operational effectiveness, mean that we have to look very carefully at whether we need different provisions and solutions for the Armed Forces.

The Railways and Transport Safety Act applied the sensible principle of giving powers to test on the basis of a reasonable ground to suspect that someone carrying out navigational and other transport-related activities has taken drugs or alcohol. The Bill adopts this basic approach. However, in deciding what to put in place, we have also considered two special aspects of service life and defence needs. First, members of the Regular Forces, and members of the reserves when they are with the Armed Forces, are on duty or on call for duty 24 hours a day. Secondly, the range of their safety-critical duties is extremely wide. On operations and in training, members of the Armed Forces are constantly dealing with danger and with dangerous equipment and activity.

The approach we decided on includes a number of special aspects in response to these factors. It allows a commanding officer, with reasonable cause, to consider the testing of anyone under his command to establish whether they are unfit through drink or drugs to carry out any duty which they may be expected to carry out and which the commanding officer considers is safety-critical. In addition, it allows specific limits to be set by regulations for any safety-critical duty. This will allow us to develop a comprehensive regime for drugs and alcohol safety over the whole range of military functions.

There is another important difference from the civilian provisions. As I have mentioned, members of the Armed Forces are always subject to be called on to carry out duties. Many of them are living permanently on base and there is no easy way of saying whether, at any one moment, they are on duty or off duty. Moreover, the likelihood of their being called on to carry out dangerous tasks varies greatly in practice between locations—between Afghanistan and places of rest and recreation. We considered carefully how to avoid a necessarily wide power to test from becoming oppressive.

To deal with this, we have provided that it is the commanding officer who will decide, for example, when and whether those under his command are likely to be called on to carry out dangerous tasks. This will allow the chain of command to apply reasonably flexible policies on testing between different theatres and locations. By taking this approach we have tailored the scope and application of drug and alcohol testing to fit service life and needs. I hope that the noble Lord will feel able to withdraw his amendment.

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[Baroness Finlay of Llandaff]

My Lords, I know that the hour is late and I am grateful to the Committee for allowing me to move this amendment at this time. The basis of the amendment is to identify people serving in the Armed Forces who commit offences while fuelled by drugs or alcohol, and who therefore have related underlying mental health problems. There is a duty of care on the Ministry of Defence to afford special consideration to those people whose alcohol abuse or drug treatment has come as a result of their experience and to put them into appropriate programmes as soon as possible, preferably before any charging decision is made.

In civilian life, at the discretion of the police or the Crown Prosecution Service, there is the opportunity to permit a defendant to go into a treatment programme in the community rather than go before the magistrate and get a criminal record. The idea behind this amendment is that the Armed Forces covenant, which is the basis behind much of what we have been addressing today and is so important, in no way could inadvertently disadvantage someone in the forces.

The way in which military court services operate means that in-depth access to the defendant’s circumstances sometimes may not come to light. Therefore, mental health and substance misuse issues can be missed and could even be exacerbated, with disastrous consequences in the long term. Sadly, there are stories of really frenzied attacks and incidents that have been fuelled particularly by alcohol. An SAS veteran, Chris Ryan, pointed out that it is often 10 or 15 years after people have left the Armed Forces that they reach their lowest point.

The underlying premise of the amendment is that if you can pick people up early and treat the root cause when they are exhibiting the early symptoms of drug and alcohol misuse, you would prevent a long-term problem later. The Armed Forces operate a parallel structure of community mental health teams, so the infrastructure is in place. In his report of 2010, Fighting Fit, Dr Andrew Murrison MP noted that the linked issue of alcohol abuse is significantly associated with service in the Armed Forces and there is evidence that it is more common among combat veterans. This is not a small problem—it is one that needs to be addressed. It has been estimated that up to four out of five cases where military personnel have been involved with criminal activity may be fuelled by alcohol and drugs, and that they would not have committed the offences if it had not been for the excessive use of these substances.

There is an emerging problem in Afghanistan where heroin misuse is becoming particularly linked to criminal activity among serving personnel. There are community psychiatric nurses and consultant psychiatrists on hand in Afghanistan to deal with this, and there are very good outcomes when they deal with the problems immediately, in contrast to them becoming chronic problems. The US has learned lessons from its experience in Vietnam with drug abuse in particular and has realised that punishment does not actually work because you put these people into civilian life, but that early intervention is particularly helpful. One of the problems is that if people are discharged out into civilian life and do not have the infrastructure support they need, the outbursts and consequent violence often associated with them can injure and traumatise or even possibly kill people who are closest to the person themselves.

It has also been estimated that 25 per cent of all home repossessions are from people with a service background, and there is a suggestion that that may be linked to higher alcohol consumption and spending a lot of money on alcohol, because alcohol consumption is extremely expensive.

The idea behind this amendment is to reflect the reality that we are asking a lot from our troops—we are asking them to risk life and limb—and that some of them will find that the way they cope with the trauma they have experienced is to try to numb themselves using drugs or alcohol, and that when they are really fuelled up like that they then go and commit offences. Unless we intervene rapidly and pick them up we may be creating a lifetime of dependency and problems rather than intervening early. I beg to move.

[Lord De Mauley]

My Lords, Amendment 24, moved by the noble Baroness, Lady Finlay, would apply whenever a member of the Armed Forces was arrested for a first offence related to alcohol or unlawful drugs, violence or damage to property. Before it could charge the accused, the service prosecuting authority would have to consult specialist substance abuse and mental health services, and to obtain and take into account a psychiatric report on the accused. The importance of the psychological state of an offender and the appropriateness in some cases of a specialist social or mental health approach instead of prosecution is well understood in both the civilian and service justice systems.

When a case is serious enough to go to the service prosecuting authority, it must consider the evidence available as to whether the suspect had the necessary intent to commit the offence under consideration. It must also consider whether the public and service interests—the interests of justice—make a prosecution appropriate. It is also the responsibility of the service prosecuting authority to keep these issues under review during the proceedings. The defence routinely provide submissions to the service prosecuting authority about the accused’s state of mind and whether continued proceedings are appropriate. The service prosecuting authority is therefore able to review in context its assessment of what the interests of justice require.

It is also the service prosecuting authority's duty to disclose to the defence any facts it becomes aware of which go to mitigate the seriousness of the alleged offence. Where it seems to the service prosecuting authority that the interests of justice are not best served by prosecution, it can, and often does, go back to the chain of command to discuss how the chain of command can help to bring the suspect into contact with specialist services. This often forms part of a discussion on whether administrative action might be more appropriate than prosecution.

In court, in an extreme case, the defence may seek a decision that the accused is unfit to plead. There are special statutory provisions under which the judge advocate will consider and decide such applications. Where an accused is convicted, there are statutory provisions under the Criminal Justice Act 2003 for medical reports and pre-sentence reports. The court must generally obtain and consider a medical report before passing a custodial sentence where the offender appears to be mentally disordered. This is a report on the offender’s mental condition made by a specialist medical practitioner. A pre-sentence report must generally be obtained by a court whenever it is considering a custodial sentence for an offender. The aim of such reports is to assist the court in deciding the most suitable method of dealing with the offender. It is made by the probation service and must, of course, be disclosed to the offender. The same requirements apply in both the service and civilian justice systems.

I believe that the current role of the service prosecuting authority in deciding whether to charge is the right one. It should, and does, consider what the interests of justice require, and in particular whether prosecution is appropriate. It does so by taking into account the evidence before it. However, I hope the noble Baroness will accept that it would be going too far to require the service prosecution authority to consult specialist services and obtain a psychiatric report in every case covered by the amendment. To do so would confuse the role of prosecutor and the court. It is right for the prosecutor to have some discretion in whether to prosecute and to respond to what the interests of justice plainly require. However, there is an important boundary to be maintained between that role and the proposed role requiring the prosecution to obtain and weigh expert evidence in every case before it can bring a charge.

Furthermore, the requirement for a psychiatric assessment in all the cases covered by the amendment would be excessive, and even unfair to the suspect. It would involve a delay before a decision was made on bringing a charge even in the simplest case. It would appear to expect, or perhaps require, the suspect to submit to psychiatric assessment even where he or she was not raising any psychological issue and there was no reason to suppose that there was such an issue. In some cases it would be impossible to complete this process within the very tight statutory limits that apply in the service and civilian justice systems to keeping a person in custody before charge. In other words, it would go well beyond what the needs of a fair and efficient system of justice require.

Lastly, it would mean that the procedures before charge, and the role of the service prosecuting authority, were very substantially different from those in the civilian system. We recognise the importance of the psychological and social background of an offender, but I do not consider that there are grounds for such different approaches between the service and civilian justice systems. Therefore, I ask the noble Baroness to withdraw the amendment.

[Baroness Finlay of Llandaff]

I am most grateful to the Minister for his detailed response to my amendment. I had hoped that the words “shall consider” in the first part of the amendment did not create an obligation. However, in the light of what he has said, I can see that I do not have the right wording. I wish to read what he has said, possibly discuss the matter with him outside the Committee and then consider what to do. In the mean time, I beg leave to withdraw the amendment.