Armed Forces Act (Continuation) Order 2019

Lord Thomas of Gresford Excerpts

Wednesday 20th February 2019 Lords Chamber

[Lord Judd (Lab)]

My Lords, the Minister is always extremely clear on these matters; the whole House appreciates that. I declare an ancient interest, in that I was once a service Minister. This is an opportunity for all of us in the House to put on the record again our admiration for and gratitude to the men and women of the armed services for all they do on our behalf, in some exacting and difficult circumstances.

I would like to raise just one point with the Minister. I am one of those who believes that the highest standards of commitment to human rights and the international conventions are essential to effective defence. If we stand for better things, we must demonstrate all the time that we are behaving in accordance with that conviction.

Sometimes, the circumstances are extremely testing and provocative, but in my view that is exactly when this kind of commitment becomes more important, not less. I would be very grateful for the Minister’s assurance that, in our approach to the Armed Forces, we do not slip into the habit of saying, “These are here. We have a commitment to them and we therefore behave accordingly because it is required of us”. Particularly in the context of ill-informed media comment and so on, when training and preparing our servicemen and women, do we take seriously our responsibility to explain why these commitments are important and how central they are to our credibility and effectiveness? It is not just a matter of obeying orders, but of people understanding why what is required of them is so essential.

I think the Minister will agree that this is particularly important with younger members of the armed services, towards whom we have an obvious duty of care. Any convincing assurances that he can give would be immensely helpful.

[Lord Thomas of Gresford (LD)]

My Lords, I declare an interest as chair of the Association of Military Court Advocates, having been involved in a number of courts martial over a considerable period. Things have changed very much for the better since the 1950s and 1960s. At the first court martial I went to, the officers on the panel marched in and put their swords on the table, sheathed, until the verdict. The sword was then moved and you understood the way the verdict had gone from the direction in which it pointed. That practice was abolished. I also claim some credit for raising in this House the practice of the Navy to march the defendant in at the point of a cutlass. I tabled a Question asking why this procedure still went on; it was abolished in the weeks that followed, before the Minister rose to give an Answer. That is my one tiny claim to military justice.

I have spoken on each of the Armed Forces Bills since that of 2000-01; over the years, we have moved to a much better system, very much influenced by the European Court of Human Rights and its decisions, which pointed out deficiencies in the practice and procedure of courts martial. These decisions were led by Judge Advocate General Blackett—to whom the noble and learned Lord, Lord Morris of Aberavon, referred—who has been influential in many ways.

It was as a result of long-term advocacy for reform that eventually the inquiry to which the noble and learned Lord, Lord Morris, referred was instituted by the Ministry of Defence. I had the pleasure of meeting the retired judge who was in charge of that inquiry. I would like to know from the Minister when his report will be available and, in particular, whether it will be available with plenty of time for full consultation throughout the profession, and among other professionals, before we come to deal with the Bill in a year or two’s time. It is very important that we should have the opportunity to consider and, perhaps, contribute to the Bill that will subsequently come before this House.

There has been much progress under all Governments; I hope that progress will be maintained.

[Baroness Smith of Newnham (LD)]

My Lords, unlike my noble friend Lord Thomas of Gresford, I have not been involved in any of the Armed Forces Bills going back to 2006 or before, nor indeed to the equivalent statutory instrument last year. However, last year the equivalent debate was in Grand Committee in the Moses Room, where I listened to my noble friend Lord Campbell speaking on behalf of the Liberal Democrats.

When I went yesterday to get the draft statutory instrument, the Printed Paper Office was a little overtasked. In the end, I was given six copies of a draft that said “2018”. I thought that did not seem quite right, but I read the draft. I went in this morning to see whether that was really what I was meant to be reading, and got the draft defence statutory instrument for 2019. The phrasing of the two statutory instruments is almost equivalent, but two paragraphs have been added to the Explanatory Memorandum. There is paragraph 8, to which the noble Lord, Foulkes, has already referred, and paragraph 9, which says, under the heading “Consolidation”:

“This instrument does not amend any other legislation so no consolidation is needed”.


However, paragraph 8 on the EU, headed “(Withdrawal) Act/Withdrawal of the United Kingdom from the European Union”, says that it does not relate to this—and the noble Lord, Lord Foulkes, said “Hallelujah”. If one looks very closely at the Explanatory Memorandum, the footer indicates that it is from DExEU. I assume that this is simply because the Civil Service is so overwhelmed by statutory instruments at the moment that the assumption is that nothing can come as a statutory instrument that does not relate to Brexit. It says “DExEU/EM/8-2018.2”. I assume that DExEU is not really involved with this statutory instrument, and that it is the normal MoD statutory instrument and Explanatory Memorandum.

We have already heard that whether the Armed Forces, starting with the Army, can go forward requires the consent of Parliament. This year, of all years, it is essential that Parliament gives its consent to ensuring that the Armed Forces can move forward. If we are to believe some of the preparations for Brexit and a no-deal Brexit, we are led to understand that Her Majesty’s Armed Forces might be brought into some sort of action to ensure stability, not just of the realm externally, but within the United Kingdom.

Since this order appears to be being used a bit like a Christmas tree Bill, to enable noble Lords to talk about various defence issues, clearly it is important to stress, alongside the noble Lord, Lord Judd, our support for and gratitude to the Armed Forces for everything they do in the service of our country. On this occasion, however, I should also like to ask the Minister whether the Armed Forces are being prepared for action in the event of a no-deal Brexit, and what work Her Majesty’s Government are doing to ensure that the Armed Forces have the resources that they require.

The Minister has told us that the statutory instrument and these rules allow for command, disciple and justice, all of which are important, but it is also important to think about the well-being of our Armed Forces, and ensure that they are able to do their job as effectively and efficiently as possible. If we are thinking ahead to the need in due course for another Armed Forces Bill in 2021, what work is the MoD doing to think about the future, and is there some way in which your Lordships’ House can assist the Minister and the MoD to ensure that the Armed Forces have all the resources they require?

--- Later in debate ---

[Earl Howe]

My Lords, I am very grateful to all noble Lords who have contributed to this debate. I will of course do my best to answer all the questions that have been raised. I start with the noble and learned Lord, Lord Morris of Aberavon, who gave us a most interesting exposition of his long experience, not only in relation to the Armed Forces but also as a law officer. Not unnaturally he homed in on the service justice review, which is being undertaken by His Honour Shaun Lyons, who, I am sure noble Lords will agree, has an excellent knowledge of criminal law and procedures, as well as having served in the Royal Navy as Chief Naval Judge Advocate. The review is covering all aspects of the service justice system, including court martial and the types of cases that it deals with, the summary hearing process, the service police and the Service Prosecuting Authority.

The policing aspects of the review are being led by Sir Jon Murphy, a former chief constable of Merseyside Police. The noble and learned Lord asked whether it was possible to see the conclusions of the report. The answer is, “Not yet”. The review is due to report in the spring. That will give us time to consider it and, if necessary, make plans for any legislative changes before the next Armed Forces Bill in 2020. As for consultation, there is no public consultation on the process, but Judge Lyons is consulting a wide range of stakeholders with an interest in the service justice system. Of course, he can be contacted by interested parties through the head of the review secretariat.

The noble and learned Lord asked in particular about the ability of the service justice system to deal with serious offences. As he will be aware, the service justice system is capable of dealing with the most serious offences, and has done so over the course of history. It has been held to be compliant with the European Convention on Human Rights, both for investigations and prosecutions within the UK and abroad, where the civilian police do not have jurisdiction. We are, however, keen for the review to take a strategic look at all key aspects of the service justice system, and this is one of the issues being explored.

The noble and learned Lord referred to the use of majority verdicts under the current system. The Government, as he will be aware, have been successful in establishing, both in the European Court of Human Rights and in the civilian courts, that the court martial system is in principle safe, independent and impartial. The current system has been considered twice by the Court Martial Appeal Court in the last five years and was on both occasions held to be fair and safe. Noble Lords, and noble and learned Lords, will know that the Court Martial Appeal Court is made up of the same judges as sit in the civilian Court of Appeal. That Appeal Court has held that there is no ground for deciding that a verdict by simple majority is inherently unfair or unsafe. I am advised by my noble and learned friend Lord Keen that in Scotland a majority verdict of eight to seven in a murder case, for example, would be sufficient to convict an accused person. However, the Government recognise that there are differing views about the system of majority verdicts, and this is another issue that will be covered by the review.

I thank the noble Lord, Lord Foulkes, for the compliments he paid me over the recent Written Answers that I was able to give him. I am glad that he found them helpful. He referred to the dreadful accident that I am sure we all remember involving the deaths of two RAF pilots in Scotland. I will take away the suggestion he made about the possibility of encouraging the process to move forward in Scotland. I would not wish to give a firm undertaking to that effect, because I do not want to do anything improper as regards undue influence on the Scottish Executive, but I undertake to take the point away.

The noble Lord asked me about Gibraltar and the jurisdiction over Gibraltar in relation to this order. The Armed Forces (Gibraltar) Act was passed by the Gibraltar Parliament on 8 November 2018—very recently. It came into law on 10 December 2018. The Act gives effect in Gibraltar law to certain provisions of the Armed Forces Act 2006, and Gibraltar wishes to make its own provisions in relation to that Act. Of course, we continue to work with Her Majesty’s Government of Gibraltar on the inclusion of the Royal Gibraltar Regiment within the Armed Forces Act 2006 service discipline regime to ensure that a discipline system is put in place that meets the needs of the regiment. The noble Lord also asked whether there had been any consultation on the order. There has been no public consultation but, as a matter of routine, the Armed Forces are consulted in relation to legislation that affects the service.

The noble and gallant Lord, Lord Craig, asked what point we had reached in relation to an issue that he has very effectively championed in this House on more than one occasion: the vexed issue of the challenge in recent years to the principle of combat immunity. This has created considerable legal uncertainty about liability in combat situations and the risk that we may be moving towards the judicialisation of war, if I can put it that way. We want to introduce better combat compensation for those injured in combat operations and for the families of those killed. The public consultation closed on 23 February 2017. Therefore, we have consulted and are still carefully considering the views expressed during the consultation and will be publishing a response.

The proposal that we are advancing is that compensation would be paid at the same level as court damages, which can often be substantially greater than awards under the Armed Forces compensation scheme. Our aim is to ensure that those who have risked their lives in the most challenging of circumstances should be put in the best possible financial position quickly. That last word is one of the operative words, because some of these cases have a tendency to drag on and it is immensely upsetting to the individual or their family—and many times to both. The vast majority of compensation paid in these circumstances currently is not as a result of MoD negligence. These proposals are aimed at providing combat compensation to those who have suffered in the most extreme circumstances. We will announce further proposals in due course and I hope to have further news before too long on that front for the noble and gallant Lord.

The noble Baroness, Lady Smith, asked what arrangements involving the Armed Forces are being considered for the case of a no-deal Brexit. She will remember, I am sure, that on 18 December last year my right honourable friend the Secretary of State for Defence announced that approximately 3,500 service personnel would be held on standby to ensure that defence resources were available to support the wider Government to implement their no-deal Brexit contingency plans, if required. In headline terms, the prudent standby package will comprise approximately 3,500 personnel at varying levels of readiness, including niche capabilities such as military working dogs. No defence estate is ring-fenced at this time as it is anticipated that there will be spare capacity available during spring 2019 to provide a warehousing/storage function, if that is required. Similarly, it is judged that in extremis a request for defence strategic transport capability could be accommodated by existing capacity.

In addition to the prudent standby package, defence has also been making available military planning expertise to support other departments with their Brexit contingency plans. To date, we have provided 28 military planners to a number of departments across Whitehall. I hope that that outline is helpful to the noble Baroness.

[Lord Thomas of Gresford]

Will the Minister bear in mind, before deploying military forces to deal with possible civil unrest arising from Brexit, that the deployment by Winston Churchill as Home Secretary of troops to Tonypandy, who never got involved in that strike, is so built into people’s memories that it was resurrected only a week ago?

Counter-Terrorism and Border Security Bill

Lord Thomas of Gresford Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 31st October 2018 Lords Chamber

[Lord Faulks (Con)]

My Lords, this amendment in my name and those of my noble friends Lord Hodgson and Lord Bethell is to add an offence of treason to the Bill. The offence of treason, or high treason, has a rather chequered history, I readily admit. The 1351 treason offence remains on the statute book. It focuses significantly on the safety of the sovereign and prohibitions on aiding the sovereign’s enemies. Important though these matters are, it is now generally accepted that that Act is not fit for purpose, and having an offence on the statute book that cannot be used is not satisfactory.

There are now a considerable number of terrorist offences that exist to augment the criminal law. They derive mainly from the Terrorism Acts of 2000 and 2006. This Bill seeks to add to those offences, in recognition of the changing nature of the threat and to provide a nimble response, in legislative terms, to what is happening on the ground. If the nature of terrorism is changing as fast as the noble Baroness, Lady Manningham-Buller, said at Second Reading, there will inevitably be something of a legislative lag, but the Bill seems for the most part to be a sensible response. The reviewers of terrorism legislation have been vigilant in the past—two of them are Members of your Lordships’ House and are present in the Committee today—and this has very much helped the Government to consider what laws need to be updated. Ultimately, though, it is a matter for the Government how they respond to the threats and, in so far as possible, anticipate the nature of terrorist threats in future.

When I first heard the suggestion that we might need a modern law of treason, I was doubtful about either the wisdom of such a move or the need for it. Surely what was required was a much more nuanced response, and I was a little concerned about the potential risk of attracting martyrs if there was seen to be a somewhat heavy-handed response to the various threats from terrorism. I then had the opportunity to read Policy Exchange’s publication Aiding the Enemy, to which I referred at Second Reading. Its distinguished authors make a compelling case. The enthusiastic responses to the study came from a number of important sources, including the former Home Secretary, a former commander at New Scotland Yard and head of Counter Terrorism Command, and a former director-general of the Security Service.

This Bill increases sentences and creates more security at the border, together with some new offences. However, the debates we have already had in Committee illustrate how difficult it will be to satisfy Parliament, and in particular this House, that the various provisions in the Bill adequately reflect the balance between the need to protect citizens from terrorism and the need to preserve civil liberties. After all, the Liberal Democrats have given notice of their intention to oppose each of the first four clauses standing part of the Bill. In particular, I note the debate in relation to Clause 4 two days ago in this House.

It seems important to step back a little. At the heart of this new offence of treason is the question of allegiance or loyalty owed to this country by a subject or citizen of this country, or by someone who is settled here—settlement being a term of art in immigration law. Australia, Canada and New Zealand have responded to this challenge, albeit in slightly different ways. As recently as June, Australia legislated to deal with citizens or relevant others fighting Australian forces abroad. Many other countries have laws in relation to treason.

Let me make it clear that the creation of this new offence is not intended—nor would it act—as any brake on free speech or the right to express dissent or criticism of the Government in relation to any of their activities, and in particular their foreign policy or decision to wage wars. Criticism and overt expressions of dissent are part of a healthy democracy. However, such dissent should not extend, in effect, to waging war against your own country, whether in the United Kingdom or elsewhere, Nor should it include helping, planning or preparing an attack, giving military or other intelligence, or in any way assisting such attacks.

What is the scale of the problem? It is one with multiple dimensions, including British citizens or permanent residents who go abroad to fight with ISIS in Syria or with the Taliban, but also British citizens and others who help those groups or others who intend to attack the UK or fight UK forces in the UK itself. It is estimated that about 900 British terror suspects went to Syria and Iraq during the wars. Those who have not been killed, or who are not currently prisoners, have been described by our senior counterterrorism officer as a “big national security threat”. It is true that when they return they will—or should—face immediate arrest and questioning and will be encouraged to enter deradicalisation schemes. But it is said that prosecution will be difficult, particularly against the many women involved—the so-called brides of Jihad—who will or may claim duress or in other ways try and distance themselves from what others may have done.

What about Anjem Choudary, released from prison on 19 October, half way through his in my view inadequate sentence for supporting ISIS? Now he will be placed on a deradicalisation or anti-extremism course, and a considerable amount of our resources will be spent on monitoring his activities, having regard to the range and scope of his encouragement of so many other terrorists. What he did was undoubtedly a betrayal of his country. He acted as a recruiting agent for a group that intended to cause and has caused attacks on the United Kingdom, and which the UK faces abroad. He would be guilty of treason.

Should the authorities simply wait for a British citizen to commit serious offences—in other words, to wait for a returning traitor, as they seem to have done with Khalid Ali, a British citizen who spent five years serving with the Taliban in Afghanistan before returning to the United Kingdom in late 2016? Apprehended in Whitehall with knives in his possession, he was sentenced on 20 July to life imprisonment for preparing acts of terrorism, but he ought to have been prosecuted for treason as soon as his activities in Afghanistan came to light.

Then there is Rabar Mala, an Iraqi national who had remained in the UK unlawfully after his visa expired in 2008. He became the first person to be convicted for possession of property for the purposes of terrorism. He activated some 360 SIM cards for fighters in Iraq and Syria and co-ordinated ISIS communications. He was also planning possible attacks in the United Kingdom, inviting funds and personnel to be sent to enable an attack on a major civilian target. Being neither British nor a settled non-citizen, had Mala served ISIS outside the UK he would not have breached the offence I propose. But while voluntarily living among us he owed a duty of allegiance to the United Kingdom which he betrayed by serving ISIS, aiding its military and intelligence operations in Iraq and Syria and planning attacks on the United Kingdom. The offence for which he was convicted and sentenced to eight years manifestly fails to recognise the true nature of his wrongdoing or to provide adequate punishment for it.

May I say a bit about the drafting of this amendment? I am, as ever, indebted to the Public Bill Office for its swift and helpful engagement with my proposed amendment, although I was somewhat disappointed at the changes that it insisted I make to it—as I say, it was based on an Australian version of treason—in particular the scattering in the amendment of the word “terrorist”. This apparently was to bring the amendment within scope. If you are fighting or aiding the fight against the United Kingdom outside the United Kingdom or inside it, there does not seem to be a significant distinction.

It would be odd if a British subject assisting the fight abroad was not guilty of a terrorist attack whereas the domestic equivalent constituted one.

[Lord Thomas of Gresford (LD)]

Could the noble Lord help me? Is he saying that his amendment covers an attack on British forces operating outside the United Kingdom? I do not read it in that way.

[Lord Faulks]

It does not, which is why I was expressing regret at the final form of the amendment. If we are to return to this amendment, I shall seek perhaps to expand its scope—I hope not having an undue squabble with the authorities—so that it comes squarely within what the noble Lord suggests. If it is necessary to bring the amendment back with further refinements, they may include additional conduct which might be regarded as treason, such as impeding the operation of Her Majesty’s forces or prejudicing the security and defence of the United Kingdom.

Clearly, a prosecution under this offence would be no small thing. It would need the consent of the Attorney-General to bring a prosecution since it is an offence against the state. I also accept that many offences which might be regarded as treason would be caught up in all the many other terrorist offences on the statute book, and thus I would not expect it to make a frequent appearance. Nor would I claim that the existence of this offence would be a panacea, but there is a significant gap and filling it might avoid some of the complications, say, of the designated area offence in Clause 4.

Those who live and benefit from life in the United Kingdom yet involve themselves in attacks against the United Kingdom either here or abroad are surely guilty of treason. Are we too timid to call it that? Is it because allegiance to our country is considered unfashionable? If so, that seems to me to verge on the decadent, or at the very least it shows a country lacking in self-confidence. Those who reject the values of this country have the option of relinquishing their citizenship. But while they remain here or regard it as their home, surely they owe a duty to other citizens, who have their own human rights. This new definition of treason is a way of underlining that duty. I beg to move.

--- Later in debate ---

[Lord Elystan-Morgan]

He was an American.

[Lord Thomas of Gresford]

He was an American who took a German passport in 1940 but was nevertheless convicted when he was a German citizen.

[Baroness Williams of Trafford]

That is a very interesting history. I know that many Americans claim to be Irish but it is not every day that we get a chance to discuss a law that goes back to 1351. It has been an interesting debate.

--- Later in debate ---

[Earl Howe]

There is always a judgment to be made. Once one has reached the conclusion that I have just articulated, there is indeed scope for argument about whether the increase should take place at all—we believe that it should—and, if so, to what extent. The Government have taken a view. We are putting it to Parliament and we believe it strikes the right balance in this context.

[Lord Thomas of Gresford]

The guidelines which came into effect on 27 April this year, a few months ago, were arrived at following consultation and a request for comment. They were considered by the Justice Committee in the House of Commons. What is the review to which the noble Earl is referring? What was its date? Was it not before the Sentencing Council at that time?

I assume that the noble Earl would expect the Sentencing Council to go back to its guidelines in the light of what he has said and the lack of principle to which the noble Lord referred a moment ago, and review the appropriate sentencing. These sentencing guidelines set out six steps for a judge to take before he announces the sentence. They are detailed, categorise the nature of the crime and consider what aggravating or mitigating circumstances there are. There are six steps to getting to a decision. They were all set out on 27 April this year. As the Prime Minister would say, what has changed? Is it the review? If so, what is this review?

[Earl Howe]

My Lords, it may be helpful to the noble Lord and the Committee if I quote part of a press release which the Sentencing Council issued on 28 March this year when it launched the publication of the new sentencing guidelines for terrorism offences:

“In terms of the impact on sentencing levels, it is likely that in relation to some offences, such as the offences of preparing terrorist acts and building explosive devices, there will be increases in sentence for lower level offences. These are the kinds of situations where preparations might not be as well developed or an offender may be offering a small amount of assistance to others. The Council decided that, when considering these actions in the current climate, where a terrorist act could be planned in a very short time period, using readily available items such as vehicles as weapons, combined with online extremist material providing encouragement and inspiration, these lower-level offences are more serious than they have previously been perceived”.


Max Hill QC, the Independent Reviewer of Terrorism Legislation, when he gave evidence to the Joint Committee on Human Rights, said:

“The other aspect which is partly to do with the passage of time as well is that the sentencing powers of those few experienced senior judges who deal with terrorism cases are capable of helpful review … There are examples where a higher discretionary maximum may be appropriate. It is not my purpose to talk about individual cases, but the Choudary case, which I have mentioned, might be a case in point. Some commentators were surprised at the sentence that he received, given the gravity of his offending, but the judge applied the statutory maximum, discounted in the various ways that he is enjoined to do. It seems to me that there is an argument for a higher discretionary maximum”.


That is the context in which the Government have taken the view that they have. I hope that is helpful.

[Lord Thomas of Gresford]

The March press statement was an explanation of the guidelines which were to come into effect on 27 April. It was not looking beyond those guidelines to some future date. Indeed, the noble Earl has not referred to the review that he quoted to us a short time ago—what it is, when it was published and whether it was before the Sentencing Council came to its conclusions. Its March justification for an increase in sentencing power was not for something that might happen now, but because it was increasing the level of sentences with its guidelines in April. What has happened since then?

[Earl Howe]

My Lords, the Sentencing Council’s new guidelines for terrorism offences came into force, as the noble Lord rightly says, on 27 April. In its consultation on the draft guidelines, the council was able to anticipate the proposed increases. Consequently, we believe it will not be a difficult task for the council to modify the guidelines once the Bill is enacted, and the Government will of course work with the council on those increases. Any changes to sentencing will only be made following parliamentary debate and approval.

[Earl Howe]

That is exactly the position. I sense no resistance from the Sentencing Council to that approach and I think it is eminently practicable. To answer the question from the noble Lord, Lord Thomas, about the review, it was announced by my right honourable friend the Prime Minister in June 2017. It is an internal government review and as such was not published, but I have informed the Committee today of some of the conclusions that it reached.

[Lord Thomas of Gresford]

It follows from that that the review was prior to the Sentencing Council coming to its decision in March and April of this year, so its members must have had that material before them. Nothing has happened between April and now that would justify this increase. From what the Minister says, I assume that he is expecting the Sentencing Council to double the sentences that it proposed in April—that is the basis of the increase in sentences from seven years to 15 years. That gives more scope for the judge to do justice, and consequently the Minister would be expecting the Sentencing Council to double its sentences.

[Earl Howe]

My Lords, what I had better do is take advice on the timelines that were involved in all this and clarify that to noble Lords who have taken part in this debate; I would not wish to give the wrong impression about the sequence of events. What I am saying is that the Sentencing Council’s new guidelines, which came into force on 27 April, are capable of being updated, and we believe that that is not a difficult task for the council to do once the Bill is enacted. We will consult with the council to that end, as appropriate.

Armed Forces Act 2006 (Amendment of Schedule 2) Order 2017

Lord Thomas of Gresford Excerpts

Monday 22nd January 2018 Lords Chamber

[Lord Tunnicliffe (Lab)]

My Lords, I have considered the Motion and concluded that this is almost a tidying-up order that is compatible with public opinion. I was convinced of its value before I heard the Minister, and he failed to unconvince me. So I have just a couple of questions, and to some extent he has answered them.

On service law instruments, I always worry about the level of consultation. When one reads what the consultation has been, it seems—how can I put it?—top-heavy. Clearly, many heads have been consulted. I have two questions. One is about the extent of consultation in the chain of command. Are commanding officers seeing in this change any problems that have not been brought out in the Explanatory Memorandum? Secondly, with service law there is always a question about the extent to which the service personnel concerned have been consulted. We know about the very atmosphere of the military. There are no trade unions or consultative systems. I wonder whether the Government should think more about this area. At the end of the day, this piece of law is about how day-to-day soldiers, sailors and airmen behave towards one another.

Finally—perhaps this has been partially answered—the issue of sexual assault now has more saliency, which has the benefit that people have a higher propensity to report it, with the result that, for those who commit these offences, there is a higher likelihood of punishment under the law. But the object of the exercise is not to have the offences in the first place. That seems to go to the other side of the equation. The Minister talked about making sure that personnel were advised of their rights. We know that the complex area of sexual behaviour can vary between President Trump’s definition of what is not a sexual assault through to the more modern attitude that our young people in the forces are likely to have. As part of the ongoing relationship with our service personnel, is there training, first, in what service law says on the matter, and, secondly, in what I call the almost ethical issues behind sexual behaviour, and in particular the concept of mutual respect? If one could create an overall atmosphere of mutual respect among individuals, where they think more about the impact of their behaviour on others, it would be helpful in every way in service life, and would be particularly helpful in this area. With those very minor comments, we on this side support the order.

[Lord Thomas of Gresford (LD)]

My Lords, I give a very hearty welcome to this statutory instrument. It follows on from our debates in Committee and on Report on what became the Armed Forces Act 2016—and, in particular, on an amendment moved by the noble Lord, Lord Touhig, and my noble friend Lady Jolly. I, too, spoke in that debate. At that point the Minister was not prepared to accept the amendment because he said that the wide ambit of the concept of sexual assault could even include putting your arm around someone’s shoulders. However, he told us that the Service Justice Board was taking a fresh view in light of the arguments and concerns expressed by outside bodies, including in particular Liberty. This is the excellent result.

Military life has its own constraints: there is a very enclosed, if important, society within the Armed Forces. There is an atmosphere in which people do not want to make complaints. As a result, there is a reluctance to complain of and report offences of this nature. It is interesting to look at the American experience. Some noble Lords may recall that I spoke of an inquiry about the CO’s role in military justice in the United States. I gave evidence in September 2013 at a Department of Defense hearing in Washington on what the law was in this country. It was a privilege at that time to hear Senator Kirsten Gillibrand, the junior senator for New York, give evidence. She has been engaged in a campaign to remove military commanders from prosecuting decisions in the United States, as they have been in serious offences in this country. Although she was not successful at that time, she has pursued the matter and brought forward a number of Acts to Congress. Although the Military Justice Improvement Act has bipartisan support, it has been filibustered out of Congress twice. However, she is still pursuing the matter. Her description of the Act is worth quoting because it highlights the problem:

“The carefully crafted Military Justice Improvement Act is designed to professionalize how the military prosecutes serious crimes like sexual assault, and to remove the systemic fear that survivors of military sexual assault describe in deciding whether to report the crimes committed against them. Repeated testimony from survivors and former commanders says that the widespread reluctance on the part of survivors to come forward and report is due to the bias and inherent conflicts of interest posed by the military chain of command’s sole decision-making power over whether cases move forward to a trial”.


She very much looks to the British example and the way we handle it in this country and points out that, in the most recent report in America, 6,000 sexual assaults were reported in the military, which was thought to be only 30% of all assaults committed. Importantly, 60% of the people who made those 30% of reports complained of further retaliation and reprisal after their complaint was made. It is important that we are aware in this country of the possibility of reprisal and retaliation within that closed community. One has only to think of the tragic case of Anne-Marie Ellement, who committed suicide after charges she brought against two members of the Military Police were dismissed, because of the bullying she received for having made the complaint in the first place. I am sure things have improved, but this is an important matter that I hope the Minister and the Ministry of Defence in this country will think about.

Another matter discussed while the Bill was going through in 2016 was the production of statistics. That has been followed through, as the Minister promised at the time, and we see from the statistics produced that there were 104 investigations in 2016. I am sure that is only a tiny minority of the actual assaults that have taken place. Again, this is because of the atmosphere that prevents reporting within the military community.

So far as the United States is concerned, only 9% of the 6,000 complaints of assault led to a conviction. Indeed, Senator Gillibrand concluded that a victim was 12 times more likely to suffer retaliation and reprisal than to see the person about whom they had complained convicted. I hope that is not the position in this country. The importance of dealing with sexual assaults is very much at the forefront of life today. In the military context, it is very important from the point of view of recruiting and retaining military personnel. I am very grateful to the Minister and to the Government for taking this important step in this statutory instrument.

Armed Forces: Serious Crime

Lord Thomas of Gresford Excerpts

Tuesday 5th September 2017 Lords Chamber

[Earl Howe]

My Lords, the Government’s aim is that the service justice system mirrors where possible the provisions of the civilian criminal justice system. Where the maintenance of operational effectiveness across the Armed Forces requires it, there may be differences from that system. Given those principles, we are not so far persuaded that there would be much to gain in conducting a public consultation about a future system, but that does not preclude any interested parties making representations to the Government on these issues as and when they think it appropriate. We would welcome that.

[Lord Thomas of Gresford (LD)]

My Lords, I declare an interest as chairman of the Association of Military Court Advocates. The noble Earl may recall that in February last year, when we debated at Second Reading the Armed Forces Bill, I suggested that the public had lost confidence in the trial by court martial of serious offences of service personnel. I suggested that cases of murder, rape and sexual offences, and of universal jurisdiction—war crimes and so on—should be tried by an ordinary jury in the Crown Court in this country, and that the days of having courts martial in far-flung places are long past.

[Earl Howe]

My Lords, I recall our debates on the Armed Forces Act, as it now is, and I was grateful for the noble Lord’s interventions on that occasion. As he knows, there is a protocol in existence between service and civilian prosecutors. It recognises that some cases are more appropriately dealt with in the civilian system and some in the service system. The main principle in deciding who acts is whether the offence has any civilian context, especially a civilian victim. The protocol provides that cases with a civilian context are dealt with by the civilian criminal justice system, but where there is a service context it is important that the services can manage the case in question.