Armed Forces Bill

Lord Thomas of Cwmgiedd Excerpts

Consideration of Commons amendments
Tuesday 14th December 2021 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, it is with pleasure that I support the amendment in the name of the noble Lord, Lord Thomas of Gresford. It has been a long campaign since I first initiated a series of debates following the case of Sergeant Blackman for murder. I also note, as the noble Lord, Lord Thomas, has said, the proposals of the Lord Chancellor to embed the right to trial by jury in his reforms, as was referred to this morning. It would be gravely inconsistent of the Government to declare this right in statute while denying it to service men and women.

The right to trial by jury—the right to trial by one’s peers—goes back to Magna Carta, with all the protections that have been hammered out over the years for majority verdicts, announced publicly, with everyone knowing exactly what is happening and the careful directions that are given to juries. It should be the right of every serviceman and every servicewoman, too.

[Lord Thomas of Cwmgiedd (CB)]

I rise to support Motion A1 in the name of the noble Lord, Lord Thomas of Gresford. The key issue is trial by jury. I completely accept the improvements in the service justice system—I saw them in my former role as Lord Chief Justice. However, the Minister does not grapple with the fundamental issue: why take away the right to trial by jury? It is important, because sometimes Ministers misspeak on the “Today” programme, to see what the Deputy Prime Minister wrote in this morning’s Times:

“Trial by jury is another ancient right, applied variably around the UK, that doesn’t feature in the ECHR, but will be in our bill of rights. We should be proud of our history of liberty—and preserve a human rights framework that promotes it.”


It seems inconsistent with that declared policy of Her Majesty’s Government that the Ministry of Defence opposes the fundamental right of trial by jury for those who put their lives at risk for our country. That is what this amendment has at its heart.

It seems to me that by their support of this amendment in the course of debate, the Opposition have accepted that a mistake was made in 2005 when the right to trial by jury was taken away from those in the armed services for these very serious offences. Why does the Ministry of Defence not have the courage to admit that a mistake was made and restore the fundamental right of every member of the Armed Forces to trial by jury for these most serious offences?

[Lord Craig of Radley (CB)]

My Lords, I give a cautious but warm-hearted welcome to the remarks and undertakings from the Dispatch Box by the Minister about my amendment. She will recognise that the amendment last week required a report from the Secretary of State about why he, and so central government, should not have statutory authority or due regard. As the Government have stated in both Houses that they have reached the view that legislation is not necessary, it should not have been unduly onerous or difficult for them to explain why in a report to both Houses in the six-month timeframe. Now, however, I sense a changing view and the need for a longer period before making a report.

This change of view is most welcome. It has effectively been demonstrated since Report by the decision of the MoD to refer the case of the Hong Kong Military Service Corps to the Home Office, from one central department to another, dealing with a veterans issue that could not be gripped at devolved or local authority level. However, the MoD must continue to discharge its responsibilities to those veterans. It must continue to take an active interest in their plight until the Home Office responds. Will the Minister give that undertaking now? It should not need to wait for further consideration under the Nationality and Borders Bill when it comes to this House. My hope is that the Government will take “nonne” or a “ne” rather than a “num” approach in answering the request and reporting on why central government must have a legal covenant duty of due regard.

I am very conscious that time is pressing to gain Royal Assent, without which the Government have no statutory right to military forces. I was also somewhat reassured by the Minister’s statement in the other place, so I have not moved any further amendment. I thank the Government for conceding that the role of central government must be considered and reported upon to Parliament.

--- Later in debate ---

[Baroness Goldie (Con)]

My Lords, I start by echoing the sentiments of the noble Lord, Lord Coaker, because throughout the Bill’s progress in this House, we have genuinely had well-informed debates which have been extremely helpful in the scrutiny of the legislation. I again pay tribute to all who have facilitated that positive review of it. I also thank the noble Lord for his kind remarks.

Let me try to deal with some of the points which have arisen. In relation to the service justice system, there was a sense of reprise of previously presented arguments. I know they were presented in good faith. Some have now been addressed by the Government, but, as your Lordships will be aware, others they reject. We have a fundamental point of principle here, which is that some of your Lordships feel that there should be a bias and an explicit tilt towards the civilian system, while the Government are not convinced that that is in the interests of the service justice system or of those who would have to use it. What matters is that the service justice system is robust, which it is, and this Bill introduces many improvements to it.

I do not want to bore your Lordships by repeating the arguments I have previously adduced as to why the Government support the approach of concurrency of jurisdiction. I simply observe that trial by jury is not a part of the service justice system, but we require a system which works both overseas and across the United Kingdom, is professional and has capability and capacity. That is what this Bill provides.

The noble Lord, Lord Thomas of Gresford, asked me specifically about publishing the detail of the protocols. I would direct him to Clause 7, creating a new Section 320A, and to subsection (8) of that, which directs that the current version of the protocol must be published in whatever manner the directors think appropriate.

I thank the noble and gallant Lord, Lord Craig of Radley, for his kind remarks and his acknowledgement of the Government’s willingness to hear his concerns and to seek to address them. I am not a position to deal with the specific point that he raised, but he will know that announcements are likely in the near future.

The noble Lord, Lord Coaker, raised two issues. He asked what would happen if the publication of the more detailed data and statistics for the service justice system caused concern. I said that we are very clear as a Government that that additional data will help to inform us as to where we may need to make adjustments or where improvements may be necessary if issues arise which occasion concern.

On the covenant, the noble Lord asked a similarly aligned question about the reports: what if they suggest that the positive progress we all want is not being made as effectively as we would hope? First, that will inform the Government, but, secondly, as his honourable friend in the other place said, it is the job of opposition to hold the Government to account and to scrutinise. I absolutely agree with that; that is what the Opposition exist to do. I know that the noble Lord, Lord Coaker, is an exemplar of holding me as a Defence Minister to account, and I am sure that formidable and tenacious approach will continue.

What this Bill and our debates are all about, and what we try to do in improving this legislation, is of course for the benefit of our Armed Forces. All of us are very conscious not only of what they have done over time, of the sacrifices they make and of the commitment they give, but, perhaps very particularly at this time, of the extraordinary support they have been giving to the country during the pandemic. I know that your Lordships will want on behalf of this Chamber to express our unqualified appreciation—

[Lord Thomas of Cwmgiedd (CB)]

Before the Minister sits down, I would be grateful if she could write at some point saying why trial by jury is not being conceded for members of the Armed Forces. It may require some legal argument. I would be delighted to read it.

[Baroness Goldie (Con)]

I will address the noble and learned Lord’s point in a moment, but if I may continue with my tribute, it is very important for this House to send a message to our Armed Forces that we absolutely value everything they are doing. I am particularly conscious of that at this time. Their contribution is extraordinary and invaluable to the country, and we would want them to know just how much we appreciate that.

The noble and learned Lord will be aware that the jury system is not part of the service justice system. It is the view of the Government that the service justice system is robust, that this Bill will make distinct improvements to it and that it has to operate in a manner which makes it fit for purpose both overseas and across the United Kingdom. That is what this Bill does. I beg to move.