Armed Forces Bill

Lord Mackay of Clashfern Excerpts

2nd reading
Tuesday 7th September 2021 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I thank the Minister for the very clear way she introduced this very important Bill. I join those who have spoken already very eloquently in thanking the Armed Forces. Sometimes that is particularly important on issues that they may feel have not been particularly successful. I think of those who gave their lives in Afghanistan and those who suffered very serious injuries there. Today they sometimes wonder just exactly what it was for. I do not know whether your Lordships are always able to answer that question; I must say that I find it quite difficult to know, except in relation to the idea of keeping out of existence a safe place for the development of terrorist organisations.

I associate myself very much with all that has been said in appreciation of the Armed Forces. We are extraordinarily in debt to the Armed Forces of the Crown and those who support them in every possible way. The Armed Forces covenant is some token of that. It is important that it is sufficiently specific to make it really worth while. For example, it is questionable whether it will be successful without incorporating central government, with its policy responsibilities, into the three principles mentioned that apply to local authorities to come up with possible results. Why they should not apply also to central government and the devolved Administrations I do not feel confident to answer, but I look forward to hearing an answer from the Minister in due course.

This Bill is an important reminder of the principle of our constitution that the Armed Forces of the Crown are not authorised by a statute that has no end. The statute that authorises the existence of the Armed Forces is one that always has a terminus. That is an important part of our constitution, and the need for this particular Bill is a very important reminder of that.

The last thing I want to say is that in relation to the previous Bill—the veterans Bill—the noble Lord, Lord Dannatt, and his colleagues pointed out the very difficult situation that some members of the Armed Forces have encountered as a result of experiences they have had in the course of their service that raised issues of possible criminality. I was not alone in being very moved by that account, and I wish that we could have done something about it then, but it was obviously very important to get that Bill through and therefore the noble Lord, Lord Dannatt, and his colleagues graciously decided not to press that amendment at the end of the consideration here. I am glad that the Government have fulfilled their promise to bring it forward now, and I sincerely hope that the noble Lord, Lord Dannatt, who will follow me, is pleased with that.

Armed Forces Bill

Lord Mackay of Clashfern Excerpts

Committee stage
Wednesday 27th October 2021 Grand Committee

[Lord Mackay of Clashfern (Con)]

My Lords, I have put my name to the amendment because I think it is extremely important. The covenant with the Armed Forces is an agreement putting obligations on our country in favour of people serving in the Armed Forces and those who have served in the Armed Forces. The covenant therefore contains specific obligations, which have been listed. It is true that in practical terms most of those will be local; if one wanted some health help, normally one would get that locally. It is therefore quite natural that the local authorities have a responsibility, but there seem to be quite serious possibilities that veterans and acting members of the Armed Forces will want government help.

One illustration that came to my mind when thinking about this before Second Reading was in relation to the first Iraq war. Noble Lords may remember that there was serious concern before and as the war started that our troops might be subject to a form of poison gas that would be very damaging to them. It was suspected that it was a gas of a particular kind. Exactly what the basis was for that I did not know, but it certainly resulted in protection being handed out to many of those in our services taking part in the first Iraq war.

When the war was over, it was discovered that some people who had served in the Armed Forces were beginning to suffer from a strange, rather neurological type of disease. There was a question about whether the disease had been caused by the protection that had been given to them against the gas. The gas, I may say, never emerged, so the protection turned out not to be necessary, but the protection had been given and could have had its own effect on those to whom it was administered.

That problem, of whether it was a consequence of the prescription, was a difficult and very deep question of medical research. It took quite a long time, as your Lordships may remember, and there was some dispute among the medics as to whether it was so. That is a special illustration of the necessity for the Secretary of State for Health, for example, to be involved because you could not expect the local authority or the local health trust to be responsible for looking into that national problem.

As one approaches this covenant, one also has to remember that it has obligations. That is not just a sort of wishful thinking; it has specific obligations. When the Bill says, as I hope the Act will, “have regard to the covenant”, it means looking to see what obligations in the covenant affect me. If I am a local authority, a local health authority or a local education authority, it will be the obligations in the covenant which have bearing on my responsibility. I therefore regard it as a close legal obligation that is created by the Bill to support those in the Armed Forces presently serving, and the veterans.

As the Minister has said, of course, the nature of the help that veterans require may be rather different from the help that service people require. For example, on moving between areas, if you have medical care in one area and have to move you may well have problems registering. There are quite a lot of problems nowadays in some places for somebody coming into a district in getting on to the medical register of a practice. That kind of thing can readily arise in relation to the local authority.

I have no doubt whatever that if the local authority has an obligation in a particular way, the finance for that is required under the local authority financial provision because this is one of the statutory provisions that are binding on the local authority. I regard the Bill as putting quite a fixed and rather balanced obligation on local authorities, but I see no reason whatever why it should not include central government. It will put obligations on them only in respect of an obligation in the covenant which applies to them at a particular time. In the example I have given, it would apply to the Government when a question was raised as to whether what they had done in the way of seeking to protect our people against a gas had in fact caused such a neurological condition. You would not expect the local health authority to be able to deal with that sort of problem; it would require the considerable resources of research that this country can command to see whether it was a cause and, if so, how it could be cured.

It is extremely important that the Government—the Secretary of State, as our amendment says—should be responsible. This provision would not put any responsibility on him or her that is not already in the covenant, so far as it affects him or her. I am not obliged to do anything under the covenant, except where an obligation encompasses me. The Secretary of State would not be put under any obligation which it was not a proper reading of the covenant to allot to him or her. I very much support this amendment. I mentioned it to my noble friend the Minister in general terms, based on my example of the first war in Iraq. I hope that the sensible effect of this amendment will be appreciated and that we can get it into the Bill.

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[Baroness Goldie (Con)]

My Lords, again this has been a fascinating debate and I arise with trepidation when one of the contributors is my noble and learned friend Lord Mackay of Clashfern. A number of significant points have been made and I will try to address them as best I can.

Amendment 9, as has been discussed, centres on the desire to make central government departments subject to the duty of due regard. Again, to provide some context, we designed the new duty to initially focus on the three core functions of healthcare, education and housing because, as I indicated in debating a previous amendment, these are prominent among the concerns of both Armed Forces personnel in service and veterans. They not only reflect issues that are already in statute, but also address the most commonly raised issues affecting the day-to-day lives of our Armed Forces community.

As our Armed Forces are a very mobile population, frequently moving from local authority to local authority, it is often the variation of service delivery across local areas that can inadvertently cause disadvantage. Consequently, it is vital that those delivering these key public services are sufficiently aware of the challenges faced by the Armed Forces community when accessing these services. It is right that we look at this area first.

We also took into account that central Government are responsible for the overall strategic direction for national policy and for delivering on the manifesto on which they were elected. However, the responsibility for the delivery of these functions and their impact rests at more local level. I would argue that Governments are answerable, ultimately, to an electorate when a general election comes round and, before that point, they are most certainly accountable to Parliament, and that is an accountability no Government would ever take lightly.

Senior engagement regularly takes place between the MoD, the Cabinet Office, other government departments and the devolved Administrations to drive an increase in covenant awareness across national healthcare, and housing and education policy to improve the lives of the Armed Forces community. Additionally, the Government’s delivery of the covenant is, as we all know, subject to parliamentary scrutiny through the existing annual legal obligation to report progress delivering the covenant across the UK to Parliament. This is in addition to regular parliamentary scrutiny through other channels, such as Parliamentary Questions, reviews by the House of Commons Defence Select Committee and debates called by Members with a particular interest in certain aspects of defence.

My noble and learned friend Lord Mackay of Clashfern raised in support of his argument the certainly interesting event that occurred during the first Gulf War. As he explained, in anticipation that troops might be exposed to gas issues and had to be protected against that, protective equipment was handed out. As he indicated, people then suffered from a neurological type of disease on their return and tried to identify where it had come from. As my noble and learned friend said, they had not actually been exposed to any toxic gas, so the suspicion was that it was from the protective equipment. He adduced this instance in support of his argument that central government should be brought in.

I have two observations on that analogy. The emphasis on what the Government are doing in this Bill and what we have endeavoured to make possible is, first, to give the covenant a statutory impact, which is innovatory and very important; and secondly, to try to make it much clearer across the United Kingdom, for the whole panoply of services being delivered in respect of housing, education and health, how there needs to be greater awareness and understanding, and a much more universal approach to delivering these services to personnel who may be in service in the Armed Forces or veterans. That is about ensuring that, when they need services, they can access them.

The question that my noble and learned friend poses about the instance that he describes, with the reference to the first Gulf War and the particular situation that developed there, is a legitimate illustration to give the Committee. I accept that that was a serious situation, but the question running through my mind as he spoke was that surely the important thing there was remedy. This is not about people needing something, not being able to get it, and making sure that the providers of that service are much more alert to providing it; it is about a situation where, under orders of government, Armed Forces were sent abroad and then apparently—I do not know the facts myself—experienced neurological disorders when they returned, and considered that was attributable to protective equipment that was defective, with which they had been issued.

That is not a complete analogy with what the Bill is trying to do. If you ask what solution was needed, the answer, quite simply, is that those people who suffered in that way needed to be given advice and helped, and needed to find a legal solution, if that was what was available to them. I do not know what happened to that particular group of people, but I imagine that the first thing they needed was medical support, which I hope that they got. I imagine that, within the Armed Forces, there would be a concern about the manifestation of that situation and a desire to support, but the bottom line is that, if the culpable body were the Government and the MoD, if these individuals sought and obtained good legal advice the MoD would find itself, quite properly, the subject of litigation. That is how the solution would be sought. If the court was satisfied that the negligence alleged by those who had suffered was proved, remedies would follow.

I say with the greatest respect to my noble and learned friend Lord Mackay that I absolutely understand what he is driving at, but I still do not see a complete dovetail analogy with what we seek to deliver through the Bill. The situation that my noble and learned friend outlines is serious. It may very well happen in future, but the MoD is very vigilant and conscious that if it falls down on its duty to its own people it will expect to be sued—and it is. Not only is it sued and expected to provide redress but support is given to people who find themselves in that grouping. Including central government in the Bill is unnecessary. The Government are already subject to a legal obligation to report on the delivery of the covenant, and there are many and sufficient levels of public scrutiny.

Let us bear in mind that the Bill is about trying to improve the levels of awareness across the United Kingdom and a better and more universal provision of essential services for those members of our Armed Forces and veterans who need them. My problem with the amendment is that, were it accepted, we would create an obligation on central government. We cannot impose a comparable obligation on devolved Governments because that would be incompetent and not within the scope of the Bill. We would then once again create disparity rather than universality across the United Kingdom. We would have central government bound in one way but not devolved Administrations. That is not a desirable outcome.

I am not at all immune to the importance of the arguments advanced by my noble and learned friend. He makes an important point. The situation to which he refers was grave. I suggest that that can be addressed by existing means. It does not need the inclusion of central government in the covenant, which, indeed, would not necessarily have prevented the problem. The question is: how do we provide a remedy to people who have been affected by such an unfortunate development? My response would be: by providing support. Advice is available—legal advice if that is required—for people to follow through the remedies they seek. It is not necessary to bring central government into the legislation. It is much more important that we focus on what we are trying to do as a first step, make sure we get that working properly and then, as we have been discussing, consider whether there is a need to expand that provision of duty.

I am unable to agree that this amendment is either necessary or would help the situation; it could create a difficulty where one does not currently exist. In those circumstances, I ask the noble Lord to withdraw his amendment.

[Lord Mackay of Clashfern (Con)]

My Lords, I never mentioned negligence. I am not suggesting for a minute that there was necessarily any negligence. The Armed Forces put in requirements for the people who were taking part for protection against what they thought might come. That was a perfectly reasonable thing to do. Some of them took the treatment. The question was: what was the result of that? That was a question for the Secretary of State. It was him who had to look into that; it was a national question. It had nothing whatever to do with negligence or some other basis of claim. The claim was because the Government had approved a covenant, which I said should protect them in respect of their work in the Armed Forces and after they had left. That is what this was—nothing more, nothing less.

I am sorry to interrupt, but I have to make it clear that there is no suggestion in my argument that there was any negligence or any sort of enforcement available at the time. This is a new remedy, and it should be given.

Armed Forces Bill

Lord Mackay of Clashfern Excerpts

Report stage
Tuesday 23rd November 2021 Lords Chamber

[Lord Lancaster of Kimbolton (Con)]

My Lords, I have much sympathy with these amendments. Back in 2010, when I served in the Committee on the Bill, I proposed similar amendments, so noble Lords may ask why I now express some hesitancy about extending the remit. I suppose it comes from my experience as Minister for the Armed Forces and Minister for Defence Veterans, Reserves and Personnel. When we roll back the clock, if I am entirely honest, in the early days of implementing the Armed Forces covenant we struggled to get traction. It took some time to convince all the local authorities within the United Kingdom to sign up and indeed to get employers to sign up. I am delighted that now we have close to 2,000 signatories to the Armed Forces covenant.

My concern really lies around the fact that, as we continue to extend the width, we may struggle to get buy-in into this if we create yet more of a burden for local authorities in particular. Especially after Covid, as they have had a difficult couple of years, they might not see the benefit of this if we simply overburden them with yet more categories. My suggestion in Committee was not that we should not extend the categories but that we should do it incrementally over a period of time. In many ways, had that been suggested today, I would have been happy to accept this amendment, but that is not the case, which is a shame. During that early stage of the process, we also struggled to demonstrate the benefits of this to veterans.

It is a shame that we have an Armed Forces Bill only once every five years because I do not want to have to wait another five years to slowly extend the remit of the covenant. However, I simply feel that at this stage such a step would be a bit too much too soon, for the reasons that I have tried to explain.

[Lord Mackay of Clashfern (Con)]

My Lords, I think it might be convenient for me to speak to my amendments in this group, Amendments 17 and 4. Something about Amendment 4 has been said already and I will not repeat that, but I shall attempt to elaborate on it somewhat.

On Amendment 17, when I was trying to consider this issue more carefully after the Minister’s argument in Committee, I happened to notice that this clause has a curious provision at the beginning: it is the same as the opening clause that was in the 2011 Bill on the Armed Forces covenant report. The only reference to “Armed Forces covenant” here is by dropping the word “report”. That struck me as rather strange in a Bill dealing with the Armed Forces covenant.

My noble friend may be able to put me right on this, but I have not found a definition of that covenant in the Bill. It is true that there is a definition on the website, but the website is not yet by law an Act of Parliament. We have to distinguish between these two. I am happy to think that what I have proposed in Amendment 17 is not very different from what is on the website, but it would at least be in the statute—in the part on definitions and principles that apply to England—and would apply through it.

My main argument, of course, is in relation to Amendment 4. It is right that central government in the form of the Secretary of State, who is responsible to Parliament for the Armed Forces, should be responsible for respecting the Armed Forces covenant. If he does not have a duty to respect it, it is difficult to put that duty on local authorities, health authorities and so on. In Committee, I referred to what I regard as an important example of where this was really necessary. In the first Gulf War, there was a feeling early on—of course, I have no detail on this that I could go into—that there might be poison gas coming from the opposition in Iraq. A possible protection against that gas was provided to some of our Armed Forces. Needless to say, I do not know what it contained, and I do not think local or health authorities knew either. Importantly, therefore, the illnesses of a neurological character contracted by some veterans were thought to be possibly connected to the protection against the poison gas.

As it happened, I do not think the poison gas ever emerged, but some veterans had had this protection and there was a question about that. I sent the Minister a copy of the Library report on this; there was an inquiry into it by one of my judicial colleagues. The eventual opinion expressed by Her Majesty’s Government was that the illness was not sufficiently definite to be called Gulf War syndrome—it was probable that it was due to a variety of things and, therefore, it was not to be classified in that way.

I cannot see how anybody other than the Secretary of State could be responsible for carrying out an investigation of that kind. It is therefore vital that he should have regard to the principles; of course, the areas that he has to have regard to are in the Bill now and not subject to the extensions of Amendment 3 and the other extensions that the noble Lord, Lord Coaker, referred to. It is a simple case of three zones, as it were, in which the Secretary of State has to have regard to the principles. If anybody has to have regard to the principles of the Armed Forces covenant, I should have thought that the Secretary of State responsible to Parliament for the Armed Forces would be the leading person in that capacity.

It is for this reason that I tabled Amendment 4—having benefited from the copyright very kindly given. I look forward to what my noble friend the Minister has to say. I am sure she will have a good answer which will not be good enough. Unless this is accepted by the Government, or some provisional point of view for the future is accepted, I therefore intend to test the opinion of the House on this matter.

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[Baroness Goldie (Con)]

I am sure the noble Lord has been listening carefully to the argument that I have been advancing, but I have been trying to distinguish between identified, critical core services—in this case housing, education and health, which the Armed Forces community said mattered most to them—and how we address the delivery of these services. In the main, these services are not delivered by central government but by a range of other agencies, and may be the responsibility of devolved Administrations, in turn delivering them through their agencies. The point I am making is that adding an obligation to central government does not seem in any way to address the need that we have identified that has to be addressed: the current disparity in the delivery of services across the United Kingdom. That, quite simply, is what the Bill is seeking to rectify. That is why trying to attach a covenant obligation to central government is something of a red herring—I do not actually see what it is going to deliver.

Before the noble Lord interrupted me, I was simply explaining, by way of illustration, the point I have just been making: exactly what it has been possible for the Government to do without attaching any statutory obligation on them, and I am not even halfway through my list. At the risk of being tedious with your Lordships, I was also going to mention, finally, a new holistic transition policy that co-ordinates and manages the transition from military to civilian life for service personnel and their families when they leave the Armed Forces. The Defence Transition Services also supports those in that position. We have the Career Transition Partnership, and a range of initiatives and support packages covering a wide range of activity, all of which benefit our Armed Forces personnel. I merely adduce that list to illustrate how alternative processes allow areas of concern to be brought to light more readily and addressed more quickly through other means, if necessary, including action to be taken by central government departments and devolved Administrations, where appropriate.

I think it was the noble Lord, Lord Coaker, who specifically raised the evaluation process. This would feed into our existing commitment to review the overall performance of the covenant duty as part of our post-legislation scrutiny. That review will be submitted to the House of Commons Defence Select Committee and will also be covered in the covenant annual report. This is in addition to regular parliamentary scrutiny, such as Parliamentary Questions and regular reviews by the Select Committee, or whatever form of inquiry Members of the other place and of this House may wish to undertake. The detail of the evaluation process is still being worked on with our stakeholders, but I hope that this background and the outline of the process provides reassurance that it represents a better way forward and that we are committed to continuing our work to mitigate the impact of service life on the Armed Forces community, wherever it may occur.

Listening to some of the contributions, it occurred to me that there may be a misunderstanding of the role of the Armed Forces covenant. My noble and learned friend Lord Mackay of Clashfern recalled an interesting and arguably disturbing situation, in which it is possible that Armed Forces personnel suffered harm. I undertake to look at that instance in detail; he provided a reference for where I can find more information.

However, I say to my noble and learned friend that central government, and the MoD in particular, are directly responsible for the Armed Forces, and the MoD has always looked after the welfare of service personnel. During the Bill’s passage through this House, we have heard how the support provided has improved, expanded and developed over time, particularly in relation to issues such as mental health. Central government and the MoD answer to Ministers, are held to account in Parliament, and may be held to account by the courts of this land. But the covenant is a separate concept: it is a promise by the nation as a whole to the Armed Forces community that they will not be disadvantaged because of their service. It brings in other organisations, such as health providers and local authorities, who are not directly responsible for the Armed Forces community but whose decisions undoubtedly affect them. It is this new duty that will ensure that these organisations consistently apply the principles of the covenant and can be confident of the legal basis for doing so. Based on this fairly lengthy explanation, I hope that my noble and learned friend will not press his amendment.

I turn to Amendment 17, also tabled by my noble and learned friend Lord Mackay of Clashfern. I know that he is motivated by the best and most honourable of intentions, but I am somewhat unclear about its purpose. The new definition contained in the amendment adds nothing to the duties already set out in the Bill. Indeed, perhaps disquietingly, it seems to decrease the scope of that duty, which I know is not my noble and learned friend’s intention.

We are clear that the Armed Forces covenant is a promise by the nation to support our Armed Forces community. The amendment characterises the scope and character of that promise as an agreement between the Secretary of State and servicepeople. But, with the greatest respect to my noble and learned friend, in doing so, it fails to capture its essence: it is a much broader and more widely embracing concept.

The covenant was framed during a time of great pressure on the Armed Forces community. As I have described at some length, it has been delivered highly successfully in the succeeding decade because it captures the spirit of appreciation and voluntary support for that community from people of every walk of life across the United Kingdom. This voluntary spirit is why it is called a covenant and framed as something far greater than the more transactional approach that this amendment could engender. To express the covenant in the way proposed by this amendment goes against the spirit of the covenant and the many successful initiatives that it has produced, built on the widespread admiration and support to which I have referred.

The Armed Forces covenant is described on the government website for the Armed Forces, and on the front of the annual report, as

“an Enduring Covenant Between the People of the United Kingdom, Her Majesty's Government—and—All those who serve or have served in the Armed Forces of the Crown and their Families.”

That definition is not in statue, but the principles of the covenant appear in the Armed Forces Act 2006. That is why this Bill has been taking forward greater detail, to try to assist the delivery of vital services for our Armed Forces community.

The description I have just given of the covenant far better captures its nature, which provides the framework through which support for our Armed Forces community can thrive and grow. I thank your Lordships for indulging me with patience and courtesy, as these were important points which had to be addressed at length. In view of the explanation I have given, I hope my noble and learned friend will feel able to withdraw his amendment.

[Lord Mackay of Clashfern (Con)]

My Lords, I thank the Minister for her very detailed answer to my amendment. It was clear to me, from the beginning of this provision titled “Armed Forces Covenant Report” in the 2011 Act, that all that had been done to make any references to the Armed Forces covenant in this was to delete the word “report”. But it seemed to me that, in the ordinary course of statutory interpretation, you need to know what you are talking about, and I was surprised—I thought I must have missed something, though the Minister now confirms that I did not—that there was nothing in statute to define the Armed Forces of the Crown covenant. A covenant is a contract, and it is obvious that the people of the United Kingdom are represented in this agreement by the Secretary of State. Therefore, it seems to me odd that the Secretary of State is not prepared to have regard to the principles given at the opening of this provision. Of course, the term “Secretary of State” includes the Secretary of State for Defence and other Secretaries of State as well, if that is relevant to the provision in question. I find it hard to have the Government of the United Kingdom say that they are not prepared to be bound to have regard to the principles of the covenant.

If I should by any chance be successful, this will go back to the House of Commons, and the Commons will have to ask themselves whether it is reasonable that the Government of this country should refuse to be bound to have regard to the principles of the Armed Forces covenant. I do not think the Government intend that, but that is the effect of leaving this out. Having this on a website is not equivalent, as yet, to having it in law—the statute book is still distinct from a website. It rather comforts me that the definition on the website includes the Government. I think that something of this kind is necessary, and I had rather hoped that the Minister might think of Third Reading as a time to put in a definition, but there is no offer of that kind, and I understand why she is not a position to do that.

I thank all who have supported me, as I think all who have spoken apart from the Minister have, which is a very good situation so far as I am concerned. I am not concerned about anything except that the Armed Forces covenant should be as effective as possible in law in our country. I do not subscribe to the other extensions that were being suggested in amendments because I can see that there is power to do that and, as and when resources are available, it would be right to bring that in by regulation.

In the meantime, I very much regret to tell my noble friend that in all conscience I do not feel able to withdraw the amendment. It is a matter that has to be faced by those who are responsible for this if they are not prepared to subscribe to having regard to the principles of the Armed Forces covenant.

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Moved by

[Lord Mackay of Clashfern]

4: Clause 8, page 9, line 18, at end insert—
“(za) the Secretary of State;” Member’s explanatory statement
This amendment would place the same legal responsibility to have “due regard” to the Armed Forces Covenant on central government as the Bill currently requires of local authorities and other public bodies.

[Lord Mackay of Clashfern (Con)]

I move that the opinion of the House be taken.