Armed Forces Bill

Lord Tunnicliffe Excerpts

Thursday 8th September 2011 Grand Committee

[Lord Dannatt]

I support the general tone of the three amendments, which promote the mood in the country that we have not got our medal policy right. For three years, I took part in discussion as Chief of the General Staff within the Chief of Staff's committee when we discuss medal issues as they arose in relation to Iraq and Afghanistan. After extensive discussion, we often arrived at conclusions. On a number of occasions, those conclusions were turned down because they offended the existing HD committee rules.

We have talked about double-medalling. There are many examples of the sanctioning of double-medalling. I give an example from my own experience. I was the commander of British forces in Bosnia in 1995-96 and, over that six-month period, the UN operation ended and the NATO operation began. The soldiers under my command for that six-month period had three months under the UN and three months under NATO. It was decided that, because they had served in one campaign loyally over that six-month period, they should have the UN medal and, for the very difficult start of the NATO operation, they should have the NATO medal. Therefore, for that six-month period they got two medals.

There are other examples of how the double-medalling rule has been broken. We have heard examples concerning the PJM. I visited Malaysia as Chief of the General Staff just ahead of the 50th anniversary of independence. It was embarrassing to be quizzed on Malaysian television about the fact that our servicemen could not wear this medal. The awful compromise arrived at in the end, compounding the original compromise that you could accept the medal but not wear it, was that it could be worn for a short period in certain circumstances. I believe that that makes a mockery of the existing rules and regulations of the HD committee.

It is said that these things are decided simply by a committee of civil servants. However, when it comes to evaluating an act of gallantry of the highest order, with a candidate for the Victoria Cross or George Cross, the head of the service of that candidate is brought into the discussions with the committee. Therefore, again, there are more anomalies within the system.

In supporting the general tone of these three amendments, my request is for the Government to recognise that there is a degree of dissatisfaction among the serving community, and particularly among the veteran community, about the inequity in the treatment of medals in recent years. I ask that in the immediate future the composition, rules and regulations of the HD committee be looked at again and reviewed in a transparent and open way so that everyone—serving or veteran—feels that they have been dealt with fairly.

[Lord Tunnicliffe]

My Lords, I have to confess that I come to this Committee briefed by my own party to take a neutral position. Equally, I have to recognise that, if this matter were to go to a vote on Report and we took a neutral position, the Government would not be realistically challenged. In light of the breadth and depth of the speeches that I have heard today and in light of what the Government have to say, I shall be reconsidering our position.

[Lord De Mauley]

My Lords, first, I ought to apologise on behalf of my noble friend Lord Astor, who of course would have been here to respond to these amendments. However, as your Lordships will know, he is on standby to deal with a Statement in the Chamber and is therefore unable to be here.

I have to declare a couple of interests: first, as president of the Council of the Reserve Forces and Cadets Association and, secondly, as the Colonel Commandant of the Yeomanry.

The noble and gallant Lord, Lord Craig, was very modest about his collection of medals. I can be even more modest about mine.

I have listened carefully to the very powerful speeches that have been made in this debate. They have all explained the lack of satisfaction with the position, which of course I shall report back to the department. I shall do my best to respond to noble Lords’ points, although I do so with some trepidation, as I have little doubt that I will not satisfy every noble Lord.

Amendment 25 in the name of the noble Lord, Lord Touhig, involves the proposal to insert a new clause, which would see the creation of a new committee to make recommendations to Her Majesty on the grant of medals to members of the Armed Forces. My understanding of the amendment is that it would affect two aspects of the grant of medals in particular. The first is the institution by Her Majesty of new medals for the Armed Forces and the second is the rules concerning the acceptance and wearing of foreign medals.

I should say that recommendations on individual operational gallantry awards are dealt with differently from these matters, but I do not think that we are particularly focusing on those today. They are made by the military chain of command up to the Ministry of Defence, where they are approved by the Secretary of State before being submitted to Her Majesty.

As to the first of the two areas that would be affected—the institution of new medals—I hope that it will be helpful to recall that in 1939, on the outbreak of war, the King was anxious to ensure that there be co-ordination regarding honours and decorations, both military and civil. He directed that the head of the Civil Service should set up and chair a permanent committee to take this in hand and to advise him. This is what we now know as the Committee on the Grant of Honours, Decorations and Medals—as the noble Lord, Lord Touhig, said, the HD committee.

The need for that committee reflects the fact that there is not a simple division between the institution of civil and military awards. For example, major wars impose exceptional demands on all parts of society. The HD committee is chaired by the Cabinet Secretary and its members include Permanent Secretaries from a number of departments, together with the private secretaries to the sovereign and the Prime Minister. It was essential to this approach that the work of the committee should be dispassionate so that the King could be properly advised as to his constitutional role as the fount of honour.

While it must be recognised that there is a political element in decisions on honours, the intention was that decisions on new awards should, so far as possible, avoid politics and the pressure that could be exerted by interest groups. This is perhaps particularly important in relation to decisions about awards to members of the Armed Forces. What is important is that when considering proposals for military decorations the committee and the sovereign have a full appreciation of the case for the proposals and advice based on an understanding of the Armed Forces and their role. This is provided in two ways. First, any such proposals are considered by the Chiefs of Staff, and their written case for the proposal goes to the committee. Secondly, the Ministry of Defence and the Armed Forces are well represented on the committee, with both the Permanent Secretary and the Defence Services Secretary—a serving military officer of two-star rank—being members.

Under the proposed amendment, the members of the new committee would be appointed by the Secretary of State. They would include Members of Parliament and persons who the Secretary of State decides represent members of the Armed Forces. While I can entirely understand the motives of the noble Lord in proposing the amendment, I, like the noble Viscount, Lord Slim, remain firmly of the view that we should neither introduce a directly political aspect to the advice given to Her Majesty, nor try to reflect a supposed view of members of the Armed Forces by persons considered by the Secretary of State to be their representatives.

Moreover, the HD committee would cease to have a role in advising on or making recommendations about the grant of medals to servicepeople. This would mean that we would lose this very important interrelationship with other departments provided by the HD committee and the ability to consider civilian and military awards in the round. It would also mean that the advice on civilian awards would be given on a completely different basis from the advice given on military awards. An example of the need for such discussion was the HD committee’s recent consideration of the creation of a Diamond Jubilee medal. Traditionally, such commemorative medals are issued not just to members of the Armed Forces but to members of the emergency services and those from some other areas of public service. It would have been impractical for such a medal for the Armed Forces to be considered in isolation.

The division of responsibility created by the establishment of a new committee would introduce major difficulties in the other area affected by the amendment—the rules on the award and wearing of foreign awards. It would raise wider issues on the need for consistency in relation to civilian and military awards, and on the important general principle that UK citizens, especially Crown servants—whether military or civilian—should be awarded honours by the sovereign for their services to the sovereign and their country. I shall come back to that point when I turn to the amendment proposed by the noble and gallant Lord, Lord Craig of Radley. I suggest that we already have a politically independent body, free from any suggestion of partisanship, that is charged by the sovereign with advising on matters relating to honours, decorations and medals and has stood us in good stead for more than 70 years. I see no justification for the fundamental change proposed.

The noble Lord, Lord Touhig, suggested an inconsistency of allowing the PJM to be awarded but not worn, other than for one week. Despite the words of some noble Lords today, the five-year and double-medalling rules are the convention by which decisions are considered on medals. However, each situation is considered on a case-by-case basis. Exceptions to the normal conventions are very unusual but are sometimes made after consideration of all the relevant and significant factors. These might be political, diplomatic or other special reasons.

I turn to Amendment 26 from the noble and gallant Lord, Lord Craig of Radley. It proposes the insertion of a new clause, which would permit serving or former members of the Armed Forces to wear, without restriction, medals awarded by Commonwealth Governments. Our rules are strict and long-standing. As I have mentioned, they reflect the wish in 1939 of King George VI to ensure, so far as possible, consistency across government in our response to proposed awards by foreign states. The UK rules provide that no UK citizen, civilian or military, should accept and wear a foreign award or that of an international organisation such as the UN or NATO unless given permission to do so.

There are several reasons why these rules were put in place and why they have, I suggest, stood the test of time. First, they reflect the need to avoid the difficulties that can arise from of any suggestion of patronage or influence if other states honour UK citizens, and especially where they honour UK citizens for the performance of duties owed to their sovereign and their country. Secondly, the rules are aimed at maintaining the status and integrity of our honours system by generally excluding those of other countries for services for which honours have already been awarded by Her Majesty.

In support of these principles, Her Majesty is advised on the award and wearing of foreign and Commonwealth honours and medals by the HD committee. The committee, as I have outlined in response to the previous amendment, is a deliberately non-political committee of very senior Crown servants, representing the departments most involved in issues of medals and honours and the Armed Forces. The committee advises Her Majesty on the rules, acceptance and wearing of foreign and Commonwealth medals and honours. Its work is administered by the Cabinet Office and, in respect of foreign awards, the Foreign and Commonwealth Office which liaises with the Governments of other countries on issues relating to proposed awards.

Her Majesty and her Government equally respect the rules of other countries about what honours may be given to their citizens. The principles I have already mentioned, especially the one that honours for service to the United Kingdom should be awarded by Her Majesty, are applied most strictly to those whose service, whether civilian or military, is to the Crown. Even for Crown servants, exceptions are recognised. An important example is where a Crown servant is seconded to a foreign or Commonwealth country or their Armed Forces in a theatre of operations and works directly for them. In such cases, an award by that country may well be appropriate. Such proposals are considered through the Foreign and Commonwealth Office and the HD committee on a case-by-case basis.

However, the effect of the proposed amendment would be to apply a different approach to the award of medals to the members of the Armed Forces, as opposed to other UK citizens, if the proposed award is from a Commonwealth country. The especially close links between all countries of the Commonwealth, especially the close constitutional connection between those countries where Her Majesty is Head of State, is deeply respected and enormously valued. None the less, it would not be advisable to apply a totally different rule for the special category of awards proposed by the amendment.

--- Later in debate ---

Debate on whether Clause 24 should stand part of the Bill.

[Lord Tunnicliffe]

My Lords, I put my name down as opposing this clause purely as a formality. When I first looked through the Bill, it seemed to me that the clause effectively took away all consultation on the matter of the application of by-laws. This was discussed at a private meeting and I have received a very constructive response from the Minister. However, the procedure that the Minister describes is an administrative one, and I advised him—I hope he has advised his representative today—that I would be entirely satisfied if he were to read the appropriate assurances in the letter into the record. A letter is an ephemeral thing, whereas Hansard is permanent and more effective. I beg to move.

[Lord Wallace of Saltaire]

My Lords, I am happy to do that. Indeed, my speaking note covers one of these points. I respond by explaining that the Military Lands Acts 1892 and 1900 allow the Secretary of State for Defence to make by-laws to regulate the public use of military land and certain areas of the sea used for military purposes. Under the 1900 Act, by-laws affecting public rights of use of the sea and shore also require the consent of the Board of Trade. Therefore, one of these Acts referred to defence, the other to the Board of Trade.

Change is needed because over the years the wide-ranging responsibilities of the Board of Trade have been reduced and redistributed. Following transfers of functions, these responsibilities are currently held by the Department for Transport. The clause therefore amends the Military Lands Act 1900 in order to remove the requirement that the Secretary of State for Defence must seek the consent of the Board of Trade when he proposes to make by-laws in respect of certain sea, tidal water and shore areas that might affect certain public rights. The rights in question relate to navigation, anchoring, the grounding of vessels, fishing, bathing, walking and recreation.

As well as removing the requirement for the Board of Trade’s consent, the clause requires that, before making such by-laws in the future, the Secretary of State for Defence should take all reasonable steps to ascertain whether the by-law would injuriously affect existing public rights. If it would, he must satisfy himself that the restriction is required for the safety of the public or for the military purpose for which the land is used, and that the restriction imposed is only to such extent as is reasonable.

The procedure for giving public notice and allowing and considering public objection to any by-law currently runs under two different provisions: one for the Board of Trade—and so, now, for the Secretary of State for Transport—in the 1900 Act, and one for the Secretary of State for Defence through the 1892 Act. However, the provisions are almost identical in effect and the clause therefore provides for the repeal of the provision referring to consultation by the Board of Trade and leaves in place the provision exercised by the Secretary of State for Defence.

The clause will therefore not affect the consultation that is carried out before making military by-laws. As now, the legislation will require the Secretary of State to publicise his proposals, to give an opportunity for the making of objections and to consider those objections before deciding. The clause also amends the Military Lands Act 1892 in relation to the procedure for publishing by-laws once they have been made. The clause removes the requirement for the Secretary of State to publish the by-laws in such a manner as appears to him necessary to make them known to all persons in the locality, and replaces it with a requirement that he publish the by-laws in such manner as appears to him appropriate. This is because interest in the effect of by-laws is no longer limited to the immediate locality.

As part of this process of consultation, the relevant Defence Minister writes to the MP in whose constituency the site is located to tell them about the forthcoming public consultation. Advertisements are then placed on the Ministry of Defence website, in national and local newspapers, post offices and libraries, and on notices around the site. In addition, depending on the location of the affected site and the interests that are engaged, Ministry of Defence officials may contact the relevant devolved Administration; the county, district or unitary authority; the parish council, community council or parish meeting that covers the site; the police authority for the area, or its successor as agreed under the Police Reform and Social Responsibility Bill; all people who have expressed an interest; and a range of government and other organisations, such as the Health and Safety Executive, the Environment Agency, the Forestry Commission, the Civil Aviation Authority, the Maritime and Coastguard Agency, the Crown Estate and, if church property is likely to be affected, the appropriate diocese.

Consultation normally runs for five weeks, although we would consider objections that were received after the end of the period as long as the by-laws had not yet been made. All comments are considered and, if possible, changes are agreed with the MoD site operator. All representations are summarised together with the department’s response and presented to the Minister before he is invited to sign to bring the by-laws into force. As a general rule, the Ministry of Defence consults more widely than we are required to do so by statute. We have no plans to reduce the amount of consultation that we usually undertake, and the provisions in the Bill will not alter our approach in this area.

In view of this full explanation, I hope that the noble Lords, Lord Rosser and Lord Tunnicliffe, will agree with me that Clause 24 should after all stand part of the Bill.

Before I complete the contribution from the Government to today’s Committee stage, I should like to say a few words on a separate but related issue—the report on the Armed Forces Bill published by the Delegated Powers and Regulatory Reform Committee on 14 July. My noble friend the Minister has written to the committee chairman, my noble friend Lady Thomas of Winchester, with the Government’s response to the report. In doing so, he undertook to speak to one of the powers to which the committee drew attention. This was in relation to Clause 32, which deals with the commencement of the legislation, and in particular the transitional measures with reference to courts martial proposed in subsection (5). In his absence, I hope that the Committee will allow me to do so. The report noted that the House may wish to seek a further explanation and satisfy itself that the provisions of subsection (5) should require no parliamentary scrutiny. As the report notes, it is usual for the standard form of transitional power conferred in Clause 32(4) to be exercisable without parliamentary scrutiny.

Subsection (5) is not intended as an extension of the power in subsection (4) but is considered useful to make it clear that the power in subsection (4) will be needed to deal with particular situations that may arise under new Schedule 3A to the Armed Forces Act 2006. The situation that we have in mind is that, if an accused person elects trial by court martial instead of by his commanding officer, the court’s powers are limited to those of the commanding officer.

The Bill affects, but does not diminish, commanding officers’ powers of punishment, so it will be necessary to provide for the powers that the court martial will have in a trial after commencement of the Armed Forces Act in the case of an accused who had made his election before commencement. This is therefore very much a transitional measure. I reassure the Committee that our intention is to ensure that the court martial will not be able to impose a more severe sentence than that which a commanding officer could have imposed when the accused made his election. For those reasons, I hope that the Committee will accept that it is appropriate that provision under subsections (4) and (5) should be made by statutory instrument with no parliamentary procedure.

[Lord Tunnicliffe]

My Lords, I thank the Minister for his full and accurate response on the matter of consultation and for reading it into the record. I am satisfied that the clause should stand part of the Bill. I shall read in Hansard with great care what he said on the Constitution Committee’s response and we will return to it if there is a problem. However, at first pass it seems that the matter is properly covered.

Clause 24 agreed.