Armed Forces Bill

Lord Stirrup Excerpts

Wednesday 6th July 2011 Lords Chamber

[Lord Stirrup]

My Lords, as the Minister said, this is a substantially smaller Bill than that brought forward in 2006 at the previous quinquennial review, when a major revision was made to the administration of justice within the armed services. Nevertheless, I agree that the 2011 Bill contains some important provisions. Perhaps the one that has attracted the most notice, and I expect will attract much comment today, is Clause 2, which seeks to enshrine the military covenant in statute. This, to my mind, is a very welcome gesture, but is it anything more than a gesture?

In order to answer that question, we need to understand the nature of the lacuna that Clause 2 seeks to fill. The noble Baroness, Lady Crawley, referred to the service personnel Command Paper which her Government published in 2008. All of us who are concerned with the welfare of people in the Armed Forces saw it as a very positive step in the right direction, but it was only a step. Some of the changes set out in the paper were, as we have heard, implemented quickly—for example, the doubling of Armed Forces Compensation Scheme payments for the most seriously injured—but others were clearly going to require much more work. This was because many of the issues that over the years have bedevilled military personnel and their families centre on the availability of public services that are outwith the control of the Ministry of Defence. These include things such as access to NHS dentists, places on NHS waiting lists, access to social housing, provision of school places, and many others besides. The enforced mobility to which service personnel are subject put them consistently at a disadvantage in this regard when compared with the majority of their civilian peers.

In 2008, the Command Paper did no more than commit the relevant government departments to working together to find solutions to these problems. The caveat that many of us appended to our welcome of the Command Paper was, therefore, that it not only promised the right things but that it was consistent and sustained the delivery of solutions that really mattered. An external reference group was indeed set up to monitor that delivery. It included representatives of the services' families federations and the leading charities, as well as members of the relevant government departments. Its first report, in 2009, concluded that progress had been made, but that there was still much to do.

As of today, that progress continues. There has been considerable good will, and much good work, between the various ministries, and the people involved deserve great credit for this. However, our society's obligation to treat its Armed Forces fairly should not depend on the good will of the moment. It should not depend on how much—or how little—the military is in the public eye and mind over any given period. Nor should it depend—and forgive me if I seem slightly cynical—solely on a calculus of how much political gain or harm would attach to any given course of action.

I do not wish for one moment to impugn the motives of anyone acting today. I believe their collective heart is in absolutely the right place, but these are exceptional times. One cannot help remembering, with Kipling, that:

“For it's Tommy this, an' Tommy that, an' ‘Chuck 'im out, the brute!’

But it's ‘Saviour of 'is country’ when the guns begin to shoot”.

It is worth remembering the perceptive last line of that poem:

“An' Tommy ain't a bloomin' fool—you bet that Tommy sees”.

The Minister has implied that the current levels of interest and support will continue. He has said that the people of this country know how their Armed Forces should be treated. This may be so, but it has not prevented the issues that I have outlined from being persistent problems over a great many years. We need a formal undertaking in which military people and their families can have confidence and which they see will be upheld and sustained when the guns have ceased to shoot. To that extent, the proposed inclusion of the military covenant in the Armed Forces Act must be welcome, but what sort of an undertaking are we talking about here? How effectively will it deliver solutions to the kind of problems that I have described? A key reason for enshrining an undertaking in legislation is surely to give people some recourse if that undertaking is not met. In this case, such recourse is not available. Instead, the Secretary of State for Defence is called upon annually to explain himself before Parliament.

I accept the arguments that the services themselves have made—that formal legal redress would generally be neither desirable nor even helpful to their people in such cases—but I have two particular difficulties with the alternative that is proposed. The first relates to the point that I have already made—that the Defence Secretary is not responsible for delivering the services that are at the heart of many of the most difficult and intractable issues faced by the military community. Surely, if Parliament is to probe such matters deeply and effectively, it must do so with those who are directly responsible for the provision in question. If the need to explain actions personally and directly to Parliament is the means by which good behaviour is encouraged, surely the explanations should be required from those responsible for the behaviour, and they should not be able to use the Defence Secretary as a kind of air raid shelter.

Secondly, the Bill seems to leave a great deal to the discretion of the Defence Secretary. Phrases such as,

“as the Secretary of State considers,”

or,

“as the Secretary of State may determine”,

crop up quite a bit in Clause 2. Now, I am not suggesting that all boundaries should be set out in the Bill. Such an impractical result is, I presume, what the current wording seeks to avoid. However, is not allowing the Secretary of State alone to define all the parameters as he goes along a little like making him a judge in his own cause? Surely we need some kind of audit function to ensure that the character and scope of the standards to which the Secretary of State—or, as I hope, Secretaries of State—report attract a degree of consensus that goes beyond simply the ministries being judged.

While I therefore welcome the inclusion of the covenant in Clause 2, the undertaking given there is not yet firm enough for Tommy or Tommy’s family to rely upon with confidence through changing times, and I hope that this can be addressed as the Bill goes through its other stages.

--- Later in debate ---

[Baroness Fookes]

My Lords, the noble and gallant Lord, Lord Craig, has shot my fox because one of the points that I wanted to make—I will still aim another bullet at it—concerns the incomprehensibility of any one piece of legislation if one seeks to know what the law is on the subject. I share the noble and gallant Lord’s distaste for simply amending the previous Act. Unusually, we have the chance to amend the Act every five years for constitutional reasons that have already been touched upon. As it is the only piece of legislation for the Ministry of Defence, I would have thought it possible for the MoD to start to work on consolidation from now on so that when we next get to the five-year point we will have a Bill that is complete in itself. I once served on the Joint Committee on Consolidation Bills. It met but rarely. Here we have an opportunity to put the matter right, at least in one piece of legislation.

On the new part of the legislation on the Armed Forces covenant, I slightly disagree with another noble Lord who felt that there was a weakness in giving the Secretary of State considerable flexibility in what he might choose to bring into the annual report, which will be his duty. I think that can be a strength rather than a weakness. If something is too prescriptive, it is very easy to find a little way down the line that it does not cover what you wish it to cover. I prefer to give the Secretary of State a little more leeway. I regard this new arrangement as an experiment. I hope that we will develop, refine and improve it year by year. I do not look upon it as being totally static and never to be changed, but that we can improve upon it.

I have one or two questions for the Minister. First, other than the measures for education, health and so on that are already listed in the Bill, does he have anything else in mind at the moment? If he does not, perhaps I may make one or two suggestions.

One suggestion relates to the Chief Coroner. As far as I was concerned, the whole point about the Chief Coroner was that he was given the power to ensure that coroners engaged in military inquests had sufficient training. This was, and remains, a key point for me. I point out that although this was in legislation brought by the previous Government, it was introduced because they were virtually forced into it by the then Opposition losing the day when they had said it was not necessary. However, the balance is now redressed because my own Government are seeking to get rid of it altogether.

I suggest to my noble friend that this might well be an issue that the Secretary of State could include in his annual report. Ensuring that military inquests are dealt with by coroners with sufficient experience to do them properly could be one of his duties in the annual report. That would deal with a real worry that many people have felt. In the early days, when there were a number of deaths, the coroners did not have sufficient knowledge and experience of the Armed Services and their ethos, and this caused many of the families great strain, including of course to the war widows, of whose association I am very proud to be president.

That brings me to another issue. The reference committee—or whatever it will be called—which is going to advise the Secretary of State on the various issues that will form the basis of the annual report, does not seem to be in the Bill. I may be mistaken, but if it is not in the Bill it should be a statutory body. It might well need to alter its membership, but if it is not there, what is to stop a Secretary of State who is not particularly interested in all this discontinuing it? If the Secretary of State is to be fully informed, it is absolutely vital that he has all these inputs from bodies such as the War Widows’ Association and SSAFA Forces Help, of which I am a vice-president nationally. One of their strengths is that they deal with individual cases of servicemen, ex-servicemen and their families, so they are at the sharp end and know exactly what the problems are. That kind of information is absolutely vital if we are to have an annual report that means anything at all.

Another issue, which was raised by the BMA in a briefing to me and no doubt to other noble Lords, is medical reservists. They can be called up—at very short notice, of course—but they have found that in many cases being called up actually puts their primary career at risk, particularly if the NHS organisations with which they are associated are difficult about it or maybe have different policies. I suggest to my noble friend the Minister that that kind of difficulty could be ironed out as a result of the annual report. I am of course fully aware that—other noble Lords have made this point—in many cases the Ministry of Defence, and indeed other government departments, have no direct control over the actual people who are going to be helpful or otherwise: the doctors’ surgeries, those responsible for waiting lists, and so forth. I am not sure what the answer is to that, save that if there is a body of evidence that is very clear and well set out, it might have some influence as opposed to power. That is at least what I am hoping for; we shall have to see what the result is.

All in all the Bill is a very good development and I wish it well, and I hope that by the time we finish we shall have improved it with some constructive amendments.

[Lord Stirrup]

Before the noble Baroness sits down, I wonder whether she will allow me just two seconds, for the sake of clarity, on her point about the need for flexibility in what the Secretary of State reports. I absolutely agree on the need for that flexibility; I was merely suggesting that there should be some marking of the way in which he exercises that flexibility.

[Baroness Fookes]

I thank the noble and gallant Lord for that clarification.