Armed Forces Bill

Lord Stirrup Excerpts

2nd reading
Tuesday 7th September 2021 Lords Chamber

[Lord Stirrup (CB)]

My Lords, I too welcome the Bill, which, in addition to sustaining the legal basis for our Armed Forces, brings with it some worthwhile innovations. Inevitably, though, its provisions tend to raise as many questions as they answer. It is on some of these loose ends that I wish to concentrate today.

One of the most controversial aspects of the Government’s approach to the Bill has, as we have heard, been their rejection of the recommendation in the Lyons review that cases of murder, manslaughter and rape committed in the UK should be tried in civilian courts except as agreed by the Attorney-General. I accept that there may be valid reasons for the Government’s decision. The military justice system will continue to have responsibility for dealing with such offences involving service personnel outside the UK, but our military footprint abroad has been reduced significantly in recent years so such cases will probably occur infrequently.

The military justice system may find it very difficult to sustain the skills and experience necessary to carry out its responsibilities overseas if it is unable to prosecute domestic crimes of this nature. If it is to do so, however, it must be demonstrably comparable to the civilian process. There is at the moment a very serious issue of credibility, which must be addressed. Conviction rates in cases of rape brought before service courts are significantly lower than for similar crimes tried in civilian courts. Why? Supporters of the Lyons recommendation might point to fundamental deficiencies in the service justice system. I suspect that the Minister would reject such a proposition but, if so, she needs to set out credible reasons for the stark differences in outcome between the two systems. Perhaps she could take the opportunity to do so this afternoon.

The inclusion of OR7 ranks in the list of those eligible for appointment as lay members of a court martial takes us closer to the idea of a jury of one’s peers, although not all the way. It does, however, raise the question of rank gradient. There is a tendency in the military for juniors to defer to seniors even when wisdom does not necessarily lie with the greater rank. This was in the past a significant issue in aircraft cockpits—not just in the military, I might add—and a factor in a number of avoidable accidents. It took a dedicated programme of training and cultural change across the entire aviation community to address the problem. Does the Minister envisage the need for something similar for lay members of service courts?

My final points concern Clause 8, which places a duty on “specified persons and bodies” exercising certain functions to have “due regard” to the principles laid out in the Armed Forces covenant. I welcome the intent behind this clause. It certainly represents necessary progress but it leaves a number of unresolved issues. The relevant functions that fall within the ambit of the Bill are restricted to housing, healthcare and education. These are undoubtedly the functions about which service personnel, veterans and their families are most concerned but, as we have already heard today, they are by no means the only areas of difficulty.

My other concern relates to the legal implications of Clause 8. As far as I can see, there are none. It requires the relevant bodies to have “due regard” to the provisions of the Armed Forces covenant but it does not specify any outcomes. There is nothing that could be effectively challenged in law, nor are there any potential remedies for a failure to comply with the provisions. The alternative—to specify particular outcomes—is not viable. What outcomes would one specify? In any case, it must be for those most closely involved to determine priorities. Veterans and their families should not suffer from their service, but that does not automatically place their needs above those of others.

So how are we to ensure that the very welcome intent of Clause 8 is delivered in practice? We cannot just rely on veterans to raise concerns. What formal avenues will be open to them? With whom should they register those concerns, and what processes of investigation and judgment would this trigger? In any case, most of those most in need, particularly those suffering from mental illness, will be just those least able to deal with the pressures and demands of an uncertain appeal process. Balancing the need for flexibility and local decision-making with certainty in enforcement is a challenge, but it must be faced if Clause 8 is to function effectively. A comprehensive and proactive audit process would allow us to assess the practical implementation of the clause and to develop recommendations for both closing loopholes and tightening application. Does the Minister agree that this is necessary if the Government’s worthy aspirations are to be given practical effect?