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.

--- Later in debate ---

[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.