Martin Docherty-Hughes
Main Page: Martin Docherty-Hughes (Scottish National Party - West Dunbartonshire)Department Debates - View all Martin Docherty-Hughes's debates with the Cabinet Office
(3 years, 5 months ago)
Public Bill CommitteesI thank the Minister for moving the clause. I note the Government’s willingness to align the military judicial process so that it is more akin to a civil jury. The concern of my colleagues on the Opposition Benches is that, in the evidence recently given by Judge Lyons to the Committee, he stipulated:
“I believe, in the modern world, that the maintenance of discipline is in everyone’s interests, and as a first step I would wish to see it opened to OR-7. I think opening it further is a step too far at this stage.”
What concerns me and my SNP colleagues is that when pushed on the rationale for such an opinion, Judge Lyons was unable to substantiate why someone with substantial service under OR-7 should be excluded. Therefore, the judicial process, in terms of peer judicial decision, does not reflect the reality of military life.
I hope that the Government will consider accepting the amendment. There are those who have substantial service in the armed forces, not just in the sense of command but in lived experience of being in the Army. Some of the evidence given to the Defence Committee’s Sub-Committee on Women in the Armed Forces, and the armed forces ombudsman’s evidence in recent Defence Committee meetings, reflected that the judicial processes of the armed forces are not held in high regard by many serving and former service personnel. The amendment would—at least in some sense—go some way to rectifying that, ensuring that the military process is reflective of the reality of military life. At this point, if the Government are unwilling to accept the amendment, I will press it to a vote.
I wish to speak in support of the amendment. The issue was quite clearly looked at by Judge Lyons in his report. As has just been said, there is no rationale for why other rank 7 was seen as a particularly relevant cut-off point. The important thing is that we make the move to mirror the civilian justice system, although I certainly accept that there are differences between the two because of operational issues.
To be judged by one’s peers is a fundamental right. The provision would exclude large numbers of individuals, including some who may have many years of experience in the armed forces and of sitting on courts martial. I do not think that a good enough reason for excluding those individuals has been put forward in evidence. One possible justification was that people would not understand the procedures. Well, I find that rather patronising for non-commissioned officers, some of whom have been in the armed forces for many years. I would draw a parallel with civilian courts, where there is no qualification process or aptitude test for sitting on a civilian jury. It is for them to weigh up the evidence.
I think that Judge Lyons was basically saying in his report that the movement he outlined was all that he could get away with in the military legal system. I think that he was pushing for further change, but quite clearly did not want to offend or cause things not to go further. I think that he certainly saw this as a step towards, possibly, allowing other ranks to sit on courts martial.
The important point is to ensure that the individuals being tried feel that they get a fair hearing. In the hierarchical way that courts martial are judged at the moment, individuals might not perceive the process as fair because they are judged by more senior officers who determine promotion and other prospects for lower ranks, and might not only have limited understanding of the individual’s life experience, but could ultimately influence the outcome of the individual’s career, for example. I do not think a good enough reason has been put forward for why this cannot be extended, and I therefore support the amendment.
I have read the amendment. It seeks to increase lay membership of court martial boards beyond the rank of OR-7 and the changes we are making, as set out in the clause, apply to all service personnel, irrespective of rank, after serving for a period of three years.
The amendment seeks to bring the court martial board closer to the membership of a jury of a civilian Crown court in England and Wales, entitling all ranks to be tried by their peers. The amendment does not, however, take account of the key difference between the civilian courts and the court martial board. It is only the latter that has a part to play in determining the sentence with the judge.
I should first make it clear that we very much welcome the recommendation on this matter in the service justice review. Increasing the range of ranks from warrant officer to chief petty officer staff sergeant who can sit on a board as recommended is the right thing to do. It increases diversity of experience and also increases the pool of personnel eligible to sit on a board. Very careful consideration was given as to where we should draw the line on eligibility. A key factor in that was the role that the board has in determining the appropriate sentence to be awarded.
As I have already explained, the court martial board deliberates with the judge on the sentence to be awarded and the judge is relying on the collective service experience of those board members to assist in deciding the appropriate sentence. The sentence in the court martial fulfils a number of purposes, including punishment, the maintenance of discipline and deterrence. It must also take into account what is in the best interests of the service and the maintenance of operational effectiveness.
I recognise the move to include at least OR-7, but for the benefit of those watching our proceedings today, by going no further than OR-7, we are not just excluding privates, we are excluding lance corporals, corporals and sergeants, who probably have substantial life experience and military experience. While we are taking a step forward, there is substantial evidence from the ombudsman and the Defence Committee over the last 10 years that we are not going forward fast enough. Does the Minister not recognise that some of the profound issues the military justice system faces would be assisted by the amendment?
I am afraid I do not agree. We need to take this sequentially. It is an important move down to OR-7, and it will be reviewed again in due course. We want to make this the fairest justice system available, and if that includes moving beyond OR-7, we will do so in future, but at this time I do not agree with the hon. Gentleman. An appreciation of these factors comes with experience and, to a certain extent, with rank and the exercise of leadership and command over others. That is not the same as having served a specific period of time in the armed forces, as proposed in the amendment. In the light of that, we concluded that those at the rank of OR-7 and above are most likely to have the breadth of experience necessary to undertake the required role in sentencing. I have considered and answered the hon. Gentleman’s points. I hope, following these assurances, he will agree to withdraw the amendment.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Clause 7
Concurrent jurisdiction
It has been a pleasure to serve under your chairmanship throughout this Committee, Mr Sunderland, and to be able to participate virtually. I am aware that this is the first time that line-by-line has been done this way. We are pioneers, and I am sure we are doing a grand job for others who will no doubt follow. I hope the Minister will carefully consider all the amendments, which are based on the evidence we have heard and received from experts and stakeholders throughout the process.
Amendment 19 would ensure that the most serious crimes, including murder, manslaughter, sexual assault and rape, are tried in the civilian courts when committed in the UK. The first recommendation in His Honour Shaun Lyons’s 2020 service justice system review was:
“The Court Martial jurisdiction should no longer include murder, manslaughter and rape when these offences are committed in the UK, except when the consent of the Attorney General is given.”
Judge Lyons told the Committee in oral evidence that he felt it was not Parliament’s intention for murder, manslaughter and rape that happened in the UK to be tried in the service justice system. Indeed, in 2006, Lord Drayson, the then Government spokesperson in the Lords, said:
“I have already told the House that we do not propose that, under the Bill, murder, rape or treason alleged to have been committed by a serviceman in the United Kingdom will normally be investigated and tried within the service system.”—[Official Report, House of Lords, 6 November 2006; Vol. 686, c. 587.]
During the Select Committee on the Armed Forces Bill 2006, Major General Howell, head of the Army Prosecuting Authority, also said that he understood that courts martial would be used in exceptional situations. Despite that, the protocols do not reflect that intention or the Lyons review recommendation; the amendment takes account of that.
Throughout the evidence sessions we heard about the culture and archaic views around victims of sexual harassment and rape, with perpetrators being described as being of “good character” but had just had a bit too much to drink and made a mistake. We have to tackle that perception, and that is why I wholeheartedly agree with the written evidence that we received from Tony Wright from Forward Assist:
“Sexual assault…is sexual assault and rape…is rape, it should not be minimised by calling it unacceptable behaviour.”
That culture, coupled with low conviction rates for rape cases at court martial—at just 10% between 2015 and 2019—means that there is little trust in the system that should be there to provide justice. The civilian courts are not perfect but, during the same period, the conviction rate for rape was 59% in civilian courts, with considerably more cases being tried each year in those courts. Yesterday, the Minister said to the Committee:
“I am comfortable, with that protocol in place”,
and that it provides
“a resilient route to justice for those who need it.”
A low conviction rate of 10% for rape, however, does not match the Minister’s words.
Trying the most serious offences that occur in the UK in the civilian courts would help to improve conviction rates and, as Professor Sir Jon Murphy told this Committee, it would put the victim “at the heart” of the system. The Government have an opportunity with the Bill and the amendment to do just that. They cannot continue to brush serious crimes under the carpet as an inconvenient truth not to be dealt with because it could affect the defendant’s career. Sexual assault and rape affect all aspects of a victim’s life for many, many years, and the victim must be the priority.
A judge-led inquiry, the Victims’ Commissioner, the founder of the Centre for Military Justice and Forward Assist all agree that murder, manslaughter and rape should not be tried in the military system, unless in exceptional circumstances. I hope the Minister will join us to make that happen with the amendment.
I fully support the hon. Lady and her amendment. If it comes to a Division, I and my SNP colleagues will vote with Labour.
On amendment 2, it is clear in the Bill that the judicial systems of these islands are included. For example, in proposed new chapter 3A, the “Guidance on exercise of criminal jurisdiction” for England and Wales includes the Secretary of State and the Attorney General. We then go to Northern Ireland, and the measure is clear about including the Northern Ireland judicial service. Within the process, the guidance mentions the criminal jurisdiction in Northern Ireland, which is the Secretary of State and the Department of Justice in Northern Ireland.
When the Bill comes to the process in Scotland, however, with “Guidance on exercise of criminal jurisdiction” in Scotland, there is a glaring omission: we see the Secretary of State, but not the Justice Directorate of Scotland. Given that the directorate covers a completely different judicial process and system, that is a glaring omission. I hope that the Government are willing to include what my hon. Friend the Member for Glasgow North West and I have proposed, the insertion of the Justice Directorate of Scotland, to bring the clause into line with the rest of the Bill, as it is for England and Wales, and Northern Ireland.
I hope the Minister will accept the amendment of that small anomaly, to ensure clarity—he will forgive me for using the terminology—unity and unanimity across the process. I might be willing to consider what the Government say before pressing for a vote.
I will deal with the amendments in reverse order. Amendment 19 seeks to ensure that the most serious crimes—murder, manslaughter and rape—are tried in the civilian courts when committed by a service person in the UK. It seeks, through statutory guidance, to undermine the current legal position, which is that there is full jurisdictional concurrency between the service and civilian justice systems. I want to take this opportunity to explain clearly why the Government do not consider that to be the right approach.
To begin with, it is important to be clear that the amendment goes further even than the service justice system review recommended. It would mean that murder, manslaughter and rape committed in the UK could never be dealt with in the service justice system. The Lyons review recommended that such cases could continue to be tried in the service justice system with the consent of the Attorney General. Even some of those who were critical of such offences being retained in the service justice system seemed to accept at least some ongoing role for the service justice system. For example, there is general consensus that cases including cross-jurisdiction elements—offending both overseas and in the UK—would be appropriately tried in the service justice system.
The Government resist the amendment on that basis alone; however, as is now well known, the Government are also unable to accept the Lyons review recommendation directly, and have instead opted for an alternative and improved approach. As explained on Second Reading, the decision to retain jurisdictional concurrency was taken after full and careful consideration. The Government are confident that the service justice system is capable of dealing with all offences, whatever their seriousness and wherever they occur, bolstered by the improvements recommended by the Lyons review.
One of the most detailed examinations of the way the service police deal with cases of domestic abuse and serious sexual offences was contained in an audit by retired Detective Superintendent Mark Guinness in 2018 as part of the Lyons review. That audit found that service police have the necessary training, skills and experience to carry out investigations into such cases. The service prosecutors and judiciary are trained, skilled and experienced. Victims and witnesses receive support that is comparable to that received in the civilian system, for example through the armed forces code of practice for victims of crime.
Members have referred to statements by Ministers to Parliament during debates on what became the Armed Forces Act 2006. Ministers at the time said that murder, manslaughter or rape committed in the UK would normally continue to be tried in the civilian system; however, those were policy statements made nearly 15 years ago by Ministers in a different Government. Those policy statements did not alter the legal position set out in the Act: that of concurrent jurisdiction. We are considering what the position should be today and for the future, not what the position was 15 years ago.
In the light of that, the Government have concluded that it is right that the current legal position of jurisdictional concurrency is maintained in principle. The service justice system exists to support operational effectiveness and discipline, and to do that effectively it needs flexibility. That is why the Government have concluded that decisions on where cases should be tried should be taken on a case-by-case basis by independent prosecutors.
Clause 7 places a duty on the heads of the service and civilian prosecution authorities to agree guidance relating to how decisions are made where there is concurrent jurisdiction. That will bring much needed clarity on how decisions on jurisdiction are made, and will ensure that decisions on jurisdiction are transparent and independent of the chain of command and Government. The director of service prosecutions in his evidence to the Committee stated that in cases of murder, manslaughter or rape, service and civilian prosecutors will need to consult on where the proper jurisdiction lies. The Bill makes it clear that where a disagreement over jurisdiction cannot be resolved the civilian prosecutors will have the final say.
To be clear, the aim of that approach is not to increase the number of serious crimes being tried in the court martial; it is to ensure that the service justice system is able to deal with those offences in principle when committed by a service person in the UK, and that there is a transparent, robust and independent way of resolving where jurisdiction lies. I hope that that explains the rationale for the Government’s approach and the safeguards that exist, and that, following those assurances, the hon. Member for Washington and Sunderland West will agree to withdraw her amendment.
Amendment 2 seeks to include the Justice Directorate in Scotland as one of the statutory consultees that must be consulted by the issuing authorities of the protocol regarding the exercising of concurrent jurisdiction in Scotland. The hon. Members for Glasgow North West and for West Dunbartonshire have stated that the purpose of the amendment is to ensure that devolved Administrations are appropriately consulted.
New section 320B of the 2006 Acts provides for the Lord Advocate and Director of Service Prosecutions to agree a protocol for the exercise of concurrent jurisdiction in Scotland. Subsection (8) requires them to consult all authorities listed there before agreeing the protocol or any revision to it. Those listed for Scotland are the Secretary of State, the Chief Constable of the Police Service of Scotland, or any other person whom the issuing authorities think appropriate. Corresponding provision is made for England and Wales in new section 320A, and for Northern Ireland in new section 320C.
The constitutional frameworks for criminal justice are different between England and Wales, Scotland and Northern Ireland. As a result, the office holders responsible for agreeing the three protocols with the DSPs and the list of consultees are designed to reflect those differing arrangement in each jurisdiction. In relation to Scotland, the clause was drafted in consultation with the Scottish Government and the Crown Office and Procurator Fiscal Service. The role of the Lord Advocate agreeing the protocol and the list of Scottish consultees reflects those comments prior to introduction. On the involvement of the Scottish Government in developing the protocol, it is of course the case that the Lord Advocate is a member—
Yes, but the hon. Gentleman’s last intervention simply reiterated his point. I accept that, but I will take interventions only if they add to the point something that we have not already covered.
I do hope so. The Minister mentioned the Scottish Government. My amendment relates to the civil service through the Justice Directorate, so there is a clear differentiation, and it is not necessarily an engagement with the Government, but with the civil service and differing legal system of Scotland. That is why it is clear that it is about the Justice Directorate and not, for example, the Cabinet Secretary for Justice.
I, too, support the shadow Veterans Minister and the Labour amendment. I sit on the Defence Sub-Committee on Women in the Armed Forces chaired by the hon. Member for Wrexham (Sarah Atherton), who represents the Government party. We are going through extraordinary evidence submitted by women who have served in the armed forces over many years, and the amendment would go some way towards tackling the profound issues they have faced.
I have listened carefully to the Minister, my right hon. Friend the Member for North Durham and other hon. Members. I am minded to withdraw the amendment, while reserving the right to bring it back at a later stage. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Does the hon. Member for West Dunbartonshire wish to press amendment 2 formally? It has just been debated.
Not at this stage, though we might bring the amendment back at a different stage of the Bill.
Before we move on to deciding clause 7, I will make a couple of process announcements. We are feeling our way with this first ever virtual sitting of line-by-line scrutiny and I wish to make two points. First, for the avoidance of doubt, the decision on amendment 1 to schedule 1, which we debated earlier, will be made later, when we reach the schedules, which are on page 2 of the selection list. The amendment was grouped for debate, but the decision will be made separately, later in proceedings.
Secondly, I am very happy with how interventions have worked so far. Rather than coming through me as the Chair, I am happy for Members to intervene virtually, as Mr Martin Docherty-Hughes has already done successfully, directly on the person speaking.
Clause 7 ordered to stand part of the Bill.
Clause 8
Armed forces covenant
On a point of order, Mr Sunderland. Could the Clerks advise whether we should make sure that Members turn their videos on when they are voting?
Thank you. We have agreed that. Could all Members have their microphones and their videos turned on when voting? We have a few technical issues, so please bear with us.
Question put, That the amendment be made.
New clause 1 establishes age 18 as the minimum age for recruitment into the UK armed forces. Each year, the British armed forces enlist over 2,000 young people aged 16 and 17, mostly for the Army, and particularly for the infantry. It is notable that most Army recruits are 16, more than any other age. The United Kingdom is out of step with many of its allies in allowing enlistment at 16, and in a response to a written question from the right hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts), we find that underage recruits require longer training. We also know that they warrant more complicated duty of care plans and demonstrate a greater frequency of attrition.
In the three-year timeframe from 2015 to 2018, the Army enlisted just under 5,300 16 and 17-year-olds, and of this cohort, nearly a third dropped out before they completed their phase 2 training. As the Army’s accredited educational requirements for under-age recruits are limited to basic literacy, numeracy, and information and communications technology courses, it is clear that many 16 and 17-year-olds who withdraw from their training will re-enter the civilian world without immediate access to further employment, training and education. Typically, it has been commonplace for the Army to recruit young people from economically deprived areas, and while military service is a fruitful and fulfilling career for many of our service personnel, it is undeniable that encouraging 16 and 17-year-olds to remain in full-time education generates considerable benefits. Full-time education until the age of 18 should be the norm for all young people, and the opportunities for professional and personal development are indisputable, alongside the invaluable psychological, emotional and social growth that full-time education facilitates.
On top of these considerations, it also makes clear economic sense to increase the age of recruitment to 18, as the large drop-out rate that I have previously mentioned is costly in terms of both resources and time spent on training. Finally, adopting such a policy stands to bring the UK into line with the vast majority of its international contemporaries. Three quarters of states worldwide now have armed forces personnel who are exclusively aged 18 and over, including most of our NATO allies. While 16 and 17-year-olds cannot serve on the frontline, recruitment at the ages of 16 and 17 is detrimental to international efforts to end the use of children in military settings. The UN convention on the rights of the child has urged the UK to increase its minimum recruitment age to 18. If, as this Government have often stressed, we are entering an era of a truly global Britain, it seems appropriate that the UK should align with its global partners in the international community.
Adopting an adults-only enlistment policy would also be welcome domestically. The Children’s Commissioners for the UK’s four nations, the UK Joint Committee on Human Rights and numerous trade unions and health professionals have expressed their support for adult-only recruitment. If we are to safeguard the wellbeing, development, educational opportunities and physical safety of our young people, it is crucial that we change the minimum age for armed forces recruitment to 18.
New clause 2 would ensure that service personnel aged under 18 would not be required to serve for a longer period than adult service personnel. Most of the Committee’s discussion up to now has centred on removing any disadvantage experienced by service personnel in relation to their civilian counterparts, but we have not yet discussed the age discrimination that exists within the armed forces. The Bill does nothing to ensure that personnel recruited under the age of 18 experience no disadvantage compared with those recruited as adults.
At present, Army regulations that define a minimum service period discriminate against younger recruits. An Army recruit has a right of discharge for a fixed period of time after enlistment, but, once that period has expired, a recruit who enlisted at age 18 or above must serve for at least four years from the date of their enlistment. However, for recruits who enlisted at age 16 or 17, the clock restarts at age 18, so they must serve until they turn 22 at least—another four years. That commits them to up to six years of service when they are still a minor. As result of that disparate treatment, young recruits have to serve longer to have the right to leave the Army.
That inconsistency on service relates solely to the Army; it does not exist in the Navy or RAF. Only due to an armed forces exemption in the Equality Act 2010 is that allowed to remain. Such age discrimination would be prohibited in the civilian workforce, and new clause 2 would correct that by equalising the minimum service period for all recruits across the Army, ensuring that recruits under 18 experience no disadvantage compared with their adult counterparts.
The new clause builds on comments in the Army’s 2019 review of its junior entry policy that considered new terms of service to align the minimum commitment length of recruits aged under 18 to those who joined over the age of 18. The review commented on how a change in this area could attract potential young recruits and their parents and
“would mitigate some external criticism and provide greater consistency.”
In addition, the review mentioned that the change could make the process of leaving the Army as an under-18 “more transparent” and easier to understand. As such, the new clause would be an entirely reasonable and straightforward addition to the Bill and bring a consistent and logical approach to the minimum length of service across the armed forces. I urge the Committee to consider it carefully.
I recognise that the Minister will oppose the new clauses, especially on the age of recruitment—I am sure we disagree on that principle—but I hope the Government and members of the Committee will recognise the age discrimination for those under 18 who remain in the armed forces and the detriment caused through their service not being recognised. I hope we can agree in a collegiate way that anyone who remains in the Army once they reach 18 must have that prior service calculated in their long-term service in the armed forces. Anything else is a detriment to them and also underscores our lack of commitment to them, with their military service not being counted.
I understand that there are individuals who wish to support a ban on those under 18 joining the Army. I know that that has been campaigned on for quite a while now. Those individuals draw an analogy between what the Army does and the situation of child soldiers around the world. I do not agree with that, and I must say I do not agree with the provisions of the new clause.
It is quite clear now that individuals under 18 cannot be sent into combat, which I totally support and think is right, but we must balance that against the opportunities that recruiting 16 to 17-year-olds gives those individuals. I suggest that anyone who wants to see the positive way individuals can and do improve their lives visits the Army Foundation College in Harrogate.
Many of those individuals, as the hon. Member for Glasgow North West highlighted, come from deprived communities; many have been failed by the education system, so credit to the Army particularly for the work it does at the Foundation College, giving people a second chance, which the education system has failed to do. On my visits there, what appalled me was the fact that the education system had failed individuals, but the Army had given them a second chance with raising basic numeracy and literacy skills. Individuals who would possibly not have had an opportunity to have a fulfilled career were able to do so through the work undertaken at the Army Foundation College.
The other issue raised is the duty of care for those individuals, but we have come a long way on the duty of care for under-18s. There was a huge problem with the way under-18s were supervised and looked after, especially those who joined the armed forces who came from care, for example. Mr Justice Blake’s reforms following Deepcut had a huge amount to do with that.
We will disagree, I am sure, on the age of recruitment, but on new clause 2 on minimum service terms, does the right hon. Gentleman recognise that, if under-18s who are recruited at 16 remain within the armed forces, that minimum service should be included? While we may disagree on the recruitment age, should that minimum service not be included within their service period?
I will come on to that—I was going to address that in the second part of my contribution.
There has been change in terms of the duty of care of individuals. Ofsted, for example, now inspects places such as the Army Foundation College, and the practices that the Army has in place to ensure that there is a duty of care around those young people set an example that many other institutions could follow. In terms of the opportunity it gives people, I would not want, by banning under-18s, to stop many young people getting the positive move forward in their lives and the opportunities that the Army gives them.
There are two issues on which I do agree with the hon. Member for Glasgow North West, relating to early service leavers. That is not just an issue for under-18s, but for those who join post 18. To be fair to the armed forces, they have done quite a lot on ensuring that early service leavers have support. That is an issue that I raised when I was in the Ministry of Defence, because some of those individuals end up in the social services network, homeless and so on.
The question is about when people leave, if they are under 18 and decide that the armed forces, or the Army in particular, are not for them. I stand to be corrected if I am wrong, but I think there is a package around those who have left care and joined the armed forces. Anything that can be done to improve their experience is the right thing to do.
I am not against new clause 2, but we need to look at what happens in practice. There are quite good reasons why people have to sign on for a certain period of time, because of the commitment. From my experience, however, there is a mechanism to enable most people who do not want to stay in the Army and other armed forces to leave. I do not think it is such an onerous straitjacket as has it been described by some individuals.
I understand where the hon. Member for Glasgow North West is coming from, and I accept that there is a difference of opinion, but overall, my experience is that service in the armed forces gives great opportunities to many young people who would not get them if we did not recruit under-18s. The important thing to say is that many people who join at that age go on to have very good and fulfilling careers in the armed forces, and they also gain life skills and technical skills that they use when they leave the Army and move into civilian life. That is why I do not support the new clauses.