Armed Forces Bill

Robert Neill Excerpts

Consideration of Lords amendments
Monday 6th December 2021 Commons Chamber

[Leo Docherty]

This Bill delivers for our armed forces, renews the Armed Forces Act 2006, improves the service justice system and delivers on the Government’s commitment to further enshrine the armed forces covenant into law. We therefore resist Lords amendment 1, principally because we have faith in the service justice system and the protocol that this Bill creates to ensure that serious cases involving murder, manslaughter and rape are heard in the jurisdiction—civilian or military—to which they are best suited.

The amendment seeks to introduce a presumption that these serious offences are heard in the civilian courts. Such a presumption is unnecessary. The service justice system is fair, robust and capable of dealing with all offending. Indeed, that was the conclusion of the retired High Court judge Sir Richard Henriques QC in his recent review, which came before the House in October 2021. On page 199 of his report, he fully agreed with the Government’s decision to retain unqualified concurrent jurisdiction for murder, manslaughter and rape.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

The Minister rightly refers to Sir Richard Henriques’ report. Sir Richard is someone for whom I have great regard. My hon. Friend will also know that, prior to that, there was a report by His Honour Judge Shaun Lyons, who had served as an officer and as a senior circuit judge. It was Judge Lyons’ recommendation to do away with concurrent jurisdiction that led to the amendment in the Lords. Why does the Minister feel that it would be appropriate to take on board the rest of the Lyons report recommendations but to leave out this particular one? That seems a little strange, given that it was accepted that, overall, the Lyons review was a very constructive piece of work.

[Leo Docherty]

I am grateful to my hon. Friend for his intervention, which brings me to my next point. Sir Richard’s endorsement of the service justice system capability echoes the conclusion of the process audit that was conducted as part of the Lyons review of March 2019 to which my hon. Friend referred. It had previously found that the service police do indeed have the necessary training, skills and experience to investigate allegations of domestic abuse and sexual assault. However, to answer his point, we continually seek to improve our capability, which is why the creation of a new defence serious crimes unit—which this Bill delivers in clause 12 —headed by a new provost marshal for serious crime demonstrates the Government’s commitment to achieving the highest investigative capabilities for the service justice system. In simple terms, this is a good thing for all defence people.

[Leo Docherty]

The hon. Gentleman makes a good point. Given the reports of increased allegations of sexual misconduct and harassment, which have been movingly pointed out through the work of the House of Commons Defence Committee and my hon. Friend the Member for Wrexham (Sarah Atherton), the Ministry of Defence’s response will be to ensure that all those categories of alleged crime or misconduct are considered outwith the chain of command. I look forward to talking more about this when my hon. Friend brings forward her debate in Westminster Hall on Thursday.

[Sir Robert Neill]

The Minister rightly refers to the improvements in the service justice system, which we all recognise. However, as I understand it, the service justice system does not have some of the safeguards that are available under the criminal procedure rules on the treatment of vulnerable witnesses, in relation to special measures being taken in the same way. In particular, in the criminal justice system we are now rolling out pre-recorded evidence under section 28 for the alleged victims of crime. Would he at least undertake that, if we have concurrent jurisdiction, the same safeguards and protections will apply equally, for witnesses and defendants, under a service jurisdiction arrangement as they will now under the civilian procedure? It would be unfair if witnesses or defendants had a lesser standard of service and lesser protection, particularly in the case of vulnerable complainants.

[Leo Docherty]

I entirely agree with my hon. Friend. In addition to the formation of the defence serious crimes unit, we are making non-legislative changes and enhancements in procedure so that the experience of the victim in the civil or military system has parity. We look forward to keeping the House updated on that.

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[Leo Docherty]

The civilian prosecutor always has the final say.

It is clear that Lords amendment 2 fails to recognise the purpose of this legislation. The new covenant duty works by requiring listed public bodies to have due regard for the principles of the armed forces covenant when exercising a relevant housing, education or healthcare function. This amendment seeks to add the Secretary of State to the list of public bodies but, of course, none of the housing, education or healthcare functions is a function of the Secretary of State. This amendment would therefore not serve any meaningful purpose.

Of course the Secretary of State, like other Defence Ministers, is entirely accountable for delivering the armed forces covenant and reports annually to Parliament to that effect, and he answers Defence questions and attends other parliamentary events. In designing the covenant duty, we carefully considered which functions and policy areas the new duty should encompass, including those that are the responsibility of central Government. We were mindful that central Government are responsible for the overall strategic direction of national policy, whereas responsibility for the actual delivery of nuts-and-bolts frontline services and their impact generally rests at local level. The inclusion of central Government, by naming the Secretary of State in the scope of the duty, is simply not necessary.

The other vital element of our approach rests with the new powers granted to the Government to add to the scope of the duty, if need be. The new covenant duty is evergreen and can effectively adapt to the changing needs and concerns of the armed forces community. We continue to engage with the Covenant Reference Group, which is made up of independent representatives from service charities, such as the Royal British Legion, and officials from local, devolved and central Government. This will feed into our existing commitment to formally review the overall performance of the covenant duty following this legislation. The review will be submitted to the Select Committee on Defence and will also be covered in the covenant annual report.

Furthermore, the Bill requires that the statutory guidance in support of the covenant duty is laid before Parliament in draft so colleagues can inspect and scrutinise it before it is brought into force. Ministers and the Ministry of Defence will continually be held to account on the delivery of the armed forces covenant.

[Sir Robert Neill]

The Minister is being most generous with his time, for which I thank him profoundly. He will know that the author of this amendment is the noble Lord Mackay of Clashfern, Margaret Thatcher’s Lord Chancellor and the current president of the Society of Conservative Lawyers, of which I have the honour to be the deputy chairman. He does not exactly have a record of being antagonistic towards our armed forces, but he is concerned that there does not appear to be a legal commitment in the Bill to the armed forces covenant. If this be the means, or if there be some other means, will the Minister at least give us an assurance that the Government will look to introduce a legal commitment to the armed forces covenant, to go alongside the moral and political commitments that we already have? If that could be achieved, we will be happy.

[Leo Docherty]

I do not doubt the commendable spirit behind the noble Lord’s intention, but this is a case of unnecessary law being bad law and a potential complicating factor. For that reason, principally, I urge the House to reject Lords amendment 2.

[Stephen Kinnock (Aberavon) (Lab)]

It is truly an honour to be standing in front of you, Mr Deputy Speaker, in my new role as shadow Minister for the armed forces.

I pay tribute to my predecessor, my hon. Friend the Member for Portsmouth South (Stephen Morgan), who recognised the essential contribution made by our armed forces to the safety and security of our country and who played such an important role in scrutinising this legislation.

In my previous role as shadow Minister with responsibility for Afghanistan, I recently stood at the Dispatch Box to commend the courage, dedication and professionalism shown by our armed forces in the most challenging of circumstances. Two weeks ago I was pleased to pay tribute to those who served in Operation Pitting when they visited Parliament. This House, our country and the free world owe a huge debt of gratitude to those service personnel who, for 20 years, prevented terrorist attacks from being launched from Afghanistan and who secured opportunities for women and girls that would never have been possible otherwise. I thank them for their heroic service.

I look forward to engaging with the Minister. I assure him that I will support him when his Department is doing the right thing, but I will also hold him robustly to account when the Government fail to stand up for our armed forces or to act in the national interest.

As the Opposition have noted throughout its passage, this Bill is a once-in-a-Parliament opportunity to tangibly improve the lives of our armed forces personnel, veterans and their families. I know they are held in the highest regard by Labour and by all on both sides of the House. For them and for all others who have served, we have a duty to make this legislation provide the very best.

Labour supports this Bill in principle, but we have consistently pressed the Government to ensure they match their lofty rhetoric with tangible action. As it stands, the Bill is a missed opportunity to deliver the laudable promises made in the armed forces covenant for all personnel, veterans and their families. That is why I am pleased that the amendments passed in the other place so closely mirror those that Labour pressed during the Bill’s Commons stages. I therefore hope the Government will take this opportunity to think again.

Lords amendment 1 would ensure that the most serious crimes, including murder, manslaughter, domestic violence, child abuse, rape and sexual assault with penetration are tried in the civilian courts when committed in the UK, except when the Attorney General has given consent. For too long, it has been clear that the investigation and prosecution of these crimes within the service justice system simply does not work. The latest Ministry of Defence figures show that, from 2015 to 2020, the conviction rate for rape cases tried under courts martial was just 9%, whereas the latest data available suggest that the conviction rate was 59% for cases that reached civilian courts, with considerably more cases being tried each year. More than three quarters of victims were women, and seven in 10 victims held the rank of private.

Lords amendment 1 directly addresses the treatment of women in our armed forces, which is rightly receiving public attention, and it is an issue that disproportionately affects women in the lower ranks. Until there is fairness, transparency and justice in these cases, the actions of a tiny minority will be allowed to tarnish the reputation of our world-class armed forces.

[Sir Robert Neill]

Those statistics bear out a significant concern that also exists in the civilian jurisdiction. There is a disparity in parallel authorities between victims and perpetrators. Does the hon. Gentleman think we should be particularly anxious to ensure that the same protection, the same support and the same procedural devices to protect witnesses—screens, special measures and so on—are available were any of these cases to be heard in a court martial setting as opposed to a civilian setting, where they would automatically be available? The position of the private soldier is not dissimilar from the position of the employee who is taken advantage of by her boss, for example, or something similar. There is a strong case for seeking to ensure equity, in whichever court a case is tried.

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[Madam Deputy Speaker (Dame Eleanor Laing)]

Order. We do not have very long left, so I am hoping that Members will take only five minutes in order to allow everybody to say something.

[Sir Robert Neill]

May I make a few very short points to amplify those things that I mentioned in the course of interventions?

Overall, this is a very good Bill. I respect and entirely accept the good intentions of Ministers in that regard, which is why I am saddened that, in relation to Lords amendment 1 in particular, we are in danger of undoing some of the good. We are in danger of damaging the reputation of a good Bill by what appears to be a degree of stubbornness. I do not blame the Minister personally for that; he has been most generous in his interventions. None the less, taking on board the evidence of the Lyons review and also of Sir Richard Henriques, lawyers whom I respect very greatly indeed, I cannot help but feel that the Government have failed to achieve a compromise that ought more readily to be available. I urge them to consider that in the time between the Bill’s leaving this House, if they have a majority tonight, and its going back to the other place.

For example, let us look at Lords amendment 1 in particular. It is pretty clear that, with the best will in the world, the service prosecution system, precisely because of the small numbers that go through it, will struggle ever to have the level of expertise required to deal with what in the civilian world would be regarded as RASSO—rape and serious sexual offences—cases. The CPS has specialist Crown prosecutors and specialist counsel. Cases are tried by ticketed circuit or High Court judges, who are specifically authorised to try cases of such gravity, where particular sensitivity is required with witnesses. The criminal procedure rules have a host of safeguards—both before and in the course of a trial—to ensure that complainants in the system are treated with the sensitivity that the nature of such a case should involve.

It might have been easier to sustain the position on Lords amendment 1 if we were simply talking in terms of murder and manslaughter, but even that would be stretching it. The inclusion of the rape and serious sexual offences element seems needless and not really supported by the evidence. The Henriques argument will be stronger on the murder/manslaughter point, if there be any. I hope that Ministers will think about that again before the Bill goes back to the other place.

As we update criminal procedure—reference has already been made to section 28 and pre-recorded cross-examination —all those things require advocates on the prosecution side, investigators on the prosecution side, advocates on the defence side and tribunals highly experienced in these matters, and swift and prompt listing. I take the Minister’s point about concerns with delay, postings and so on, but in truth those issues apply in the civil courts as well. The answer is to have those cases expedited, rather than to take them out of the system; I hope that he will think about that.

My hon. Friend the Member for North Dorset (Simon Hoare) made an interesting observation about the jurisdictional position in relation to the Attorney General. I accept that that is a novel point, and perhaps it has some force that we have not debated enough. The answer, surely, rather than reject this amendment out of hand, is to seek a compromise, perhaps beefing up the protocol, in which the Director of Public Prosecutions has, in effect, a determinative role. Perhaps we could look at that as a model, rather than putting a Law Officer of the Crown into that unusual jurisdictional position. That ought to be done between now and the Bill’s return to the other place. I urge Ministers to think again on those important issues.

Let me turn to Lords amendment 2. I would hope that we could at least have a commitment that if the noble Lord Mackay’s amendment is not the vehicle through which to do it, the Government have a means of putting into law—either through this Bill or elsewhere—a commitment in law, as well as morally and ethically, towards the covenant. We all know that we all do have that commitment, but it would be a shame again to spoil the ship for a ha’p’orth of tar. I hope that Ministers will reflect on that.

I have had no involvement with the Bill before. I look at it simply as someone who has spent the whole of his life in the criminal justice system, both prosecuting and defending, including in courts martial as well as in civilian courts. I hope that those suggestions are constructive and might help us to find a way forward that can make an excellent Bill—one that leaves both Houses with a greater degree of consensus than we currently have on two difficult points.

[Madam Deputy Speaker (Dame Eleanor Laing)]

Four minutes each. I call Matt Rodda.

Armed Forces Bill

Robert Neill Excerpts

Consideration of Lords message
Monday 13th December 2021 Commons Chamber

[Leo Docherty]

I expect the data to justify our confidence in the service justice system. My hon. Friend knows that the Government believe very strongly that the SJS needs to retain the full complement of capability because our armed forces are expeditionary by design and our justice system also needs to be expeditionary. He may not mean it sincerely when he deals with the children, but he will see that in my remarks this evening we certainly are sincere in our position.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

My hon. Friend makes the point that we are expeditionary by design. I understand that, but I do not see how that links to the issue addressed by Lords amendment 1B, which is essentially that, where the offence is committed in the United Kingdom, unless there is a compelling reason to the contrary, which might involve an expeditionary issue, there should logically be a presumption that the starting point is dealing with it in the civilian system. What contradiction is there between the expeditionary nature of our armed forces—under certain circumstances, but not all—and a rebuttable presumption that the civilian system should hear offences committed in the United Kingdom?

[Leo Docherty]

My hon. Friend makes the case for flexibility, and I am pleased to confirm that we retain that flexibility through the protocol we have legislated for. The bottom line is that the civilian prosecutor will always have the final say, and it is principally for that reason that I urge hon. Members to reject Lords amendment 1B.

[Sir Robert Neill]

I understand what the Minister says about the civilian prosecutor’s ultimately having the final say, but an issue was raised last time about the role of the Attorney General, and whether there was a dangerous jurisdictional aspect in the Attorney’s consent being involved. The amendment removes that stumbling block. With that removed, and given what the Minister has said about flexibility, what now is the objection to the amendment in lieu, as opposed to the original Lords amendment?

[Leo Docherty]

The objection principally is about our need for an expeditionary system that should not be salami sliced. If we start to take components out of our service justice system, it would undermine the confidence that those serving should have. That is an additional reason for us to reject the amendment this evening.

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[Mr Deputy Speaker]

The debate finishes at 6.29 pm and we would like to hear from the Minister at the end, so I ask everybody to be conscious of the need to get everybody in.

[Sir Robert Neill]

I shall be brief, Mr Deputy Speaker.

I welcome my hon. and gallant Friend the Minister’s tone. He has sought to be constructive. I appreciate that he has made a number of concessions, and I am glad the Government have done that. In particular, I welcome his tribute to the noble Lord Mackay and others. Anyone who knows anything about the law and Government does not lightly mix with James Mackay, and I am glad that has been recognised. I also welcome and endorse the comments made about the work done by my hon. Friend the Member for Wrexham (Sarah Atherton) in this regard.

On defence justice issues, I rather agree with my right hon. Friend the Member for Bournemouth East (Mr Ellwood), the Chair of the Defence Committee. There has been movement and I am glad about that, but I am still not convinced by the salami-slicing point. I cannot for the life of me see how Lords amendment 1B creates any difficulty.

My real concern—the additional point I was going to make beyond the interventions I have already made—is about the way the defence serious crimes unit will be structured. Hopefully, there will not be a large number of cases to prosecute, but those involving rape and serious sexual offences in particular will almost invariably require great sensitivity in handling the investigation and the presentation in court, both in prosecution and in defending. Inevitably, such cases—where a member of the forces is either a complainant or a victim, or perhaps both—will by their nature, very properly, engage the highest level of public interest in the broadest sense. The concern is whether a small prosecuting body will ever be able to gather the critical mass of expertise to adequately do justice in those cases, whatever the good intentions.

[Carol Monaghan]

Will the hon. Gentleman give way?

[Sir Robert Neill]

Just the once, because we need to get on.

[Carol Monaghan]

Does the hon. Gentleman share the other concern raised regarding the gender composition of courts martial? Unless we have gender parity, it is very difficult for all-male or majority male courts to understand properly the experience women may have had in that situation.

[Sir Robert Neill]

I understand the point, and I am sure that as more women advance into the senior ranks of the armed forces that will be dealt with. In fairness, however, I should say that if those cases were to be dealt with by a jury in the civilian justice system, there is not a quota on gender parity in juries either. So while I take the thrust of the hon. Lady’s point, I do not think there is an exact comparison to be made.

My bigger concern is that I hope the Minister will accept that the sensible thing to do would be for the service system, at the very least, to bring in expertise from the independent Bar, from the independent legal sector, to deal with these cases, rather than try to do something and not admit that we may not have the capacity to do it effectively ourselves. There are plenty of experienced people who could do that, and that would be an important step forward.

There are also other bits of unfinished business. It would be helpful if the Minister committed to bringing forward the remaining items of the Henriques review that are not covered in the Bill. That would give us a comprehensive approach. Nobody wants to delay the Bill, but I hope the Minister will reflect on my regret that we have not taken up one of the key points of the review by His Honour Judge Shaun Lyons. Just as one does not trifle lightly with Lord Mackay of Clashfern, it is difficult to think of anyone who has had more experience, both as a naval officer—as a lieutenant commander and so on for a number of years—and then as a senior circuit judge licensed to try all cases relating to murder, rape and serious sexual offences. I do not know of anyone else in my legal career who combines the two in a greater degree than Shaun Lyons. I am therefore disappointed that, having accepted so much else, we have not followed through on the final and critical element of his report. I hope the Minister will accept that the Ministry should not be too grand as to close the door to that, because I have not yet heard a convincing argument as to why that element of Judge Lyons’s recommendation was not taken forward.

[Sarah Atherton (Wrexham) (Con)]

The Bill is excellent and much needed. It will improve the lives of service personnel while modernising our military for the future. I support the Bill and commend the Minister for getting it through so far.

I want to focus on Lords amendment 1B, which would see murder, manslaughter and rape with penetration tried in a civilian court. The House is aware that the Defence Committee’s inquiry into the experiences of women in the armed forces opened up a catalogue of harrowing evidence around sexual assault, rape, gang rape, poor standards of investigation, and the manipulation of power to deliberately disadvantage servicewomen in complaining or seeking justice. Indeed, the Committee concurred with the recommendations of the Government-commissioned, judge-led Lyons review, which stated that rape should be heard in civilian courts. Given the evidence, I do not believe the proposed concurrent jurisdiction protocol will be good enough to cut through the laddish culture that is entrenched in the military system as it stands. I welcome the Minister’s comments on transparency, but I fail to see how collecting even more data on serious offences, as proposed by the MOD, will translate into improved outcomes for victims of rape. As my hon. Friend the Member for North Dorset (Simon Hoare) explored, I would like to see how we will improve the lot of women in our military based on collecting data, but I am pleased with the establishment of the defence serious crimes unit, which is a mammoth step forward for the MOD.

Last week the House rejected an amendment that would have mandated all rape cases to be heard under civilian jurisdiction except in extraordinary circumstances, as determined by the Attorney General. The MOD rejected the amendment on the basis that it would have politicised the process. Lords amendment 1B accepts and rectifies this by leaving responsibility for the decision to the Director of Public Prosecutions, after consultation only with the Attorney General. This removes the MOD’s objection, and I am not convinced by the argument of expeditionary salami-slicing. The amendment means that cases of rape perpetrated in the UK would primarily be heard in civilian courts unless there are exceptional circumstances. I know that the 4,200 women who contributed to the Defence Committee’s inquiry and people across the country—both military and civilian, and both men and women—who believe in British values of fairness and justice will want the MOD to consider this point.