Draft Armed Forces (Covenant) Regulations 2022 Draft Armed Forces (Service Court Rules) (Amendment) (No. 2) Rules 2022

Sarah Atherton Excerpts

Wednesday 26th October 2022 General Committees

[The Parliamentary Under-Secretary of State for Defence (Sarah Atherton)]

I beg to move,

That the Committee has considered the draft Armed Forces (Covenant) Regulations 2022.

[The Chair]

With this it will be convenient to consider the draft Armed Forces (Service Court Rules) (Amendment) (No. 2) Rules 2022.

[Sarah Atherton]

It is a pleasure to serve under you, Ms Bardell. This is my first outing as a Minister, so I will rely on your guidance and the lenience and tolerance of the Opposition.

The armed forces covenant is a promise by the nation that those who serve or have served in the armed forces, and their families, will be treated fairly. It aims to ensure that they will not be disadvantaged in accessing public and commercial goods and services as a result of their service. It also allows for special provision, when justified, for those who have sacrificed the most, such as the bereaved and the severely injured.

In the 11 years since the Government put the armed forces covenant on a statutory footing, we have seen excellent work across the UK in support of our armed forces community. However, there remain concerns that some members of the armed forces and their families continue to experience disadvantage when accessing public services, particularly as they move around the country. Evidence suggests that that is largely due to a disparity in the level of awareness of the covenant among local service providers. It is this disparity in awareness that will be rectified through the Armed Forces Act 2021 via the introduction of guidance for relevant statutory bodies. In doing so, we will have successfully delivered a key manifesto commitment to further incorporate and strengthen the armed forces covenant in law, and ensured that the covenant has a firm platform to continue to flourish in the future.

The main focus in the guidance is the introduction of due regard. We designed the new duty under the covenant around the principle of due regard as a means of building greater awareness. The duty of due regard recognises that statutory bodies are required to adhere to similar “due regard” duties already in place, such as the public sector equality duty, so they will be familiar with how to meet such obligations. As with those existing duties of due regard, we will not prescribe in legislation exactly how the requirement to have due regard must be met. The duty does not mandate any specific outcomes, and statutory bodies will already have processes in place to meet similar existing obligations, so we do not consider that this duty will impose any significant additional costs on these agencies.

By obliging the statutory bodies responsible to consider the needs of the armed forces community when developing policy and making decisions in the key areas of health, housing and education, the duty will naturally raise awareness of the covenant and its principles. That, in turn, will help to ensure that members of the armed forces community are treated fairly and not disadvantaged when engaging with statutory agencies responsible for the delivery of health, housing and education. Those three areas have been identified as being of most concern to the service community, and they will act as a starting point.

The regulations implement key provisions of the new duty of due regard by bringing into force supporting statutory guidance under regulation 2. When exercising relevant public functions, agencies must have regard to this guidance. The purpose of the statutory guidance is to help the bodies understand what is required of them under their new obligations. It does that by explaining the principles of the covenant and how and why members of the armed forces community may experience disadvantage, and by providing good examples of removing, mitigating and preventing disadvantage.

Over the last two years, in order to ensure that the statutory guidance would be fit for purpose, we consulted our key stakeholders. Discussions were held with representatives from local service providers, Government Departments, the devolved Administrations, service charities, families federations and the relevant ombudsmen. We engaged with more than 200 individuals representing their organisations, and their views have been essential in ensuring that the guidance is robust, practical and, perhaps most importantly, useful to users.

The completed draft guidance was also subject to a formal consultation. The Government consulted the devolved Administrations of Northern Ireland, Scotland and Wales; local authorities across the United Kingdom; the NHS, including NHS trusts and health boards, agencies and commissioning groups; service charities and families federations; subject matter experts; and, more importantly, members of the armed forces community itself. As a result, only minor changes were made to the statutory guidance, focusing on ensuring that it was as clear as possible to users.

The covenant principles relate to disadvantage faced by servicepeople, including the relevant family members of service personnel and veterans. Regulation 3 defines who is a relevant family member in respect of the new duty. We have taken a broad approach in the definition, as a family group may look very different depending on circumstances, and those outside of what might traditionally be defined as a family may well be impacted by service life—for example, separated spouses with children. Where family members are affected, it is usually due to their cohabitation with, or dependency on, service personnel. That has been used as the basis for the definition, which extends beyond the immediate family members.

The definition, therefore, in addition to partners and children, includes wider family and bereaved family members, where such a cohabitation status or dependency on the service member exists. It also includes those who have parental responsibilities under section 3 of the Children Act 1989. By more clearly identifying the groups impacted by service life, we will assist public bodies to better understand to whom they might have due regard, and so meet their obligations under the new duty. The guidance and the definition of relevant family members will therefore be key tools in raising awareness of the issues faced by those in our armed forces community, and will help to promote better outcomes for them when accessing key public services.

We must, however, look to the future. The other vital element in our approach rests with the new powers granted to the Secretary of State by the 2021 Act to add new functions or bodies to the scope of the duty, to ensure that it can effectively adapt to the changing needs and concerns of the armed forces community. We are engaging with Government officials and covenant stakeholders to establish an open and transparent process by which possible additions to the new duty can be thoroughly considered by the Secretary of State. Potential additional functions will be assessed against clear and robust criteria that have been established and agreed with covenant stakeholders.

During the passage of the 2021 Act, we committed to conduct a review into whether central Government should be included in the scope of the duty, and to report on its findings in the 2023 covenant annual report. The review will consider the role of the UK Government and devolved Administrations in conducting the functions already in scope of the duty. It will also consider the extent to which they currently consider the covenant principles, and the benefits and costs of bringing them into scope. As is good practice, a second review will be undertaken to consider the effectiveness and impact of the duty within five years of its coming into force. In order to enable a meaningful assessment to be made, we must give the duty time to embed. It must be in force for at least 12 to 18 months to allow time for its effects to emerge and be properly assessed.

Where issues concerning compliance with the duty are raised, we expect the vast majority of complaints to be resolved through existing complaints procedures, including relevant ombudsmen where appropriate. Judicial review remains the appropriate means of ultimate recourse when challenging non-compliance by a public body with its legal obligations. While the duty cannot mandate public bodies to keep specific records, best practice would suggest that this be done, in addition to the record keeping processes already in existence for service users. That is all highlighted in the statutory guidance.

I ask hon. Members to consider that the covenant is only one element of our work to improve the lives of those in our armed forces community. There are many initiatives to ensure that our people are not disadvantaged. These include, but are not limited to, our service personnel, veterans and their families. There is a raft of initiatives, including: the defence holistic transition policy; the schools admission code; the service pupil premium; the creation of the armed forces covenant fund trust, which supports 700 covenant initiatives and spends around £10 million per year on projects such as the armed forces families fund; the strategy for veterans; the strategy for families; the mental health and wellbeing strategy; the defence accommodation strategy; the future accommodation model; the forces help to buy scheme; and the cost of living package. The duty and its supporting guidance will be a key tool, now and in the future, in promoting better outcomes for our armed forces community.

Let me turn to the draft Armed Forces (Service Court Rules) (Amendment) (No. 2) Rules 2022. The statutory instrument consists of three changes to the rules that apply to the service courts. First, it will introduce an overriding objective for the service courts. Secondly, it will give the Director of Service Prosecutions responsibility for warning prosecution witnesses of trial dates. Finally, it will increase the representation of women on court martial boards.

The first measure implements one of the recommendations of the service justice system review carried out by His Honour Shaun Lyons and Sir Jon Murphy. That recommendation was to introduce an overriding objective, equivalent to that used in the civil and criminal courts in England and Wales. It applies to the court martial, the service civilian court and the summary appeal court. The overriding objective is that cases are dealt with “justly”. That encompasses considerations such as the need to acquit the innocent, convict the guilty, and ensure that cases are dealt with efficiently and swiftly. It includes treating all participants with politeness and respect, and respecting the interests of victims and witnesses and keeping them informed of the progress of the case. In addition, the overriding objective for the service courts includes a reference to the need to maintain the operational effectiveness of His Majesty’s forces. Maintaining operational effectiveness is a key difference between the service justice system and the civilian criminal justice system.

The second measure implements another recommendation from the Lyons-Murphy review. It amends the current rules on notifying witnesses, giving the Director of Service Prosecutions, rather than the Military Court Service, responsibility for warning prosecution witnesses of the time and location of the proceedings at which they are required to give evidence. This change will improve the speed and efficiency for witnesses making arrangements and attending the court martial process. It will align the practice of the service courts with the civilian criminal court system for England and Wales, where that role is performed by the Director of Public Prosecutions.

Finally, new rule 34A in the court martial rules requires a court administration officer to ensure that each court martial board includes at least one servicewoman.

[Nick Smith (Blaenau Gwent) (Lab)]

I wish the Minister best of luck in her new role.

I have been looking through the explanatory memorandum and two things have occurred to me. First, point 10, on page 3, under the heading “Consultation outcome”, says that there was no consultation for this proposal. However, it does say that there was engagement with a range of stakeholders, including the Judge Advocate General and the Military Court Service. Will the Minister please tell us their main feedback points?

Secondly, there is a big emphasis on page 2 of the explanatory memorandum on the recruitment of lay members. That sounds great, but how will those lay members be recruited?

[Sarah Atherton]

On the hon. Member’s second point, if he waits a little longer, I will go into the details of how we recruit. However, I can say something that is not in my speech: the existing strategy is to have two pools, one of men and one of women, but that is to be stopped, and from January we will have one pool of lay members who are serving personnel of warrant officer and above—OR-7 grade and above. A female will be selected from that, and the rest go into the pool to be picked out randomly. I will discuss that a little more later in my speech.

The Judge Advocate General and senior military personnel are happy with that provision. You might expect them to be. We have engaged with them and made any amendments necessary before I brought it before you today—

[The Chair]

Order. I remind Members to speak through the Chair and not directly to each other.

[Sarah Atherton]

I am sorry, Ms Bardell.

At this stage, I declare an interest. This measure has its origins in a House of Commons Defence Committee report, “Women in the Armed Forces: From Recruitment to Civilian Life”—the result of an inquiry that I chaired. In the Government response to the report, the Ministry of Defence undertook to carry out work on increasing the representation of women on our court martial boards related to sexual offending. I am pleased that the MOD listened, and this measure goes further by ensuring that women will be better represented on boards dealing with all types of case.

Owing to the lower number of women compared with men serving in the armed forces, the chances of a woman being selected at random from the pool nominated by each of the services to serve on a court martial board are significantly lower than those of a woman being randomly selected to serve on a jury in the civilian system. In fact, the existing process of board selection means the probability that it will generate an all-male board is 14% for the Army, and 23% for the Navy and the Air Force. This measure seeks to redress that imbalance and better reflect society.

Rather than being left to chance that a woman will be randomly selected from the pool of nominees, the change will ensure that there will always be at least one woman on every board, bringing the constitution of the courts martial closer to that of juries in the civilian criminal justice system. While the measure will mean women are slightly more likely to be selected for a court martial board, I reassure the Committee that the impact it will have on women who serve in our armed forces has been considered carefully as part of our public sector equality duty. No concerns were expressed.

The impact will not result in women being treated less favourably than men given the small numbers involved. The total number of women that will be required to populate all three services’ boards is 192. That is an increase of 48 more women per year than currently, and is 4.2% of the population of women eligible to sit on a court martial board, due to rank and seniority requirements. The total number of men required to populate the three services’ boards will remain largely unchanged at 672, which is 1.7% of the population of men eligible to sit on a court martial board.

Additionally, service on a board lasts only about two weeks and is a normal part of the duties of any senior non-commissioned or commissioned officer. It can be useful experience for future command, as commanding officers play a role in the service justice system.

We believe that increasing the representation of women on court martial boards will ensure that they are always part of the decision-making process in the service justice system. That will better reflect our society and reinforce the important role of servicewomen in the justice system. I commend the draft instruments to the Committee.

--- Later in debate ---

[Sarah Atherton]

If I forget some of the questions that you have just asked me, please let me know and I will answer them.

I will start with the questions from the hon. Member for Plymouth, Sutton and Devonport. I will write to you about the term “half blood”—it sounds a bit Harry Potter-esque, doesn’t it? I agree that language needs to be changed, and we need to put the victim at the centre of all policies that the MOD looks into. I will get back to him on that one.

A lot of us here have been in service—I draw on my own service experience and service networks, as do many others in this room—and many of us have also taken part in the excellent armed forces parliamentary scheme, which is quite practical in outlook. I absolutely agree that it would be quite interesting and informative to learn about the service justice system and courts martial, and—to extend this to the point made by the hon. Member for Glasgow North West—about procurement, the covenant, service charities, and the representation of women and black, Asian and minority ethnic people in our military. I am happy to row in behind you to get that sorted out with the armed forces parliamentary scheme.

I will cover both questions about murder, manslaughter and rape in the military courts. You obviously know that I have a vested interest in that, and I will pursue it from my position as Minister. On the back of the recommendations in the Defence Committee’s “Women in the Armed Forces” report and those of the Lyons-Murphy review, the MOD has introduced a raft of measures, and I have made note of a few of them.

We have removed the chain of command from complaints of a sexual nature. We have instigated a defence serious crime unit, which will come into effect early next year; a service police complaints commissioner, who is soon to be appointed; a victims unit within the defence serious crime unit; and a protocol on concurrent jurisdiction to see where best to trial rape cases—I will watch that carefully to see how it progresses. Obviously, it has to bed in before we can look at the evidence, but you will appreciate that I have an interest in that area.

[The Chair]

Order. Will the Minister remember to speak through the Chair?

[Sarah Atherton]

I am sorry, Ms Bardell. We have a newly appointed provost marshal. I am very keen for victims to be at the centre of all the policies as our service families go forward.

[Carol Monaghan]

It is good to hear that accusations of rape can be taken out of the chain of command, but who will victims be able to raise their concerns with? Will that particular person be properly trained to deal with crimes of that nature?

[Sarah Atherton]

If there is an allegation of rape, the service personnel can now go to the civilian police; granted, it does not happen that often, because of the institution of the MOD, but they can and do have that option now. The list I gave is all about training the service police and the investigators about what to do properly. A lot of these policies and procedures in the service justice system are now aligned with the civilian justice system, which we hope will increase and maintain the speciality of serving police.

[Carol Monaghan]

I thank the Minister for that, but I will push her a little further. In the civilian police, there are people specifically trained to deal with such allegations; they do not deal with a wide range of allegations. It would be useful to know that that is the same in the military; that there are people specifically trained to deal only with these types of allegations, and that people would interact with somebody who has that expertise.

[Sarah Atherton]

There is already a system in place. Victim officers are assigned to cases such as this, but I identified in my report the fact that sometimes they were good and sometimes they were not; there was a training programme to ensure that everyone reached an acceptable level. They are assigned someone to help them through the process.

[The Chair]

I remind Members that this aspect, while incredibly important and pertinent, is out of the scope of the legislation. For the benefit of everybody here—because it is an important discussion—I urge the Minister to take it up separately with Members and ensure that they have the answers they seek.

[Sarah Atherton]

I will get back on track, Ms Bardell, and return to the armed forces parliamentary scheme. I would like to see more women on the court martial, but we have only 12% women at the moment. There is a raft of measures that have gone in to try and help recruitment and retention of women in the armed forces, not only with regard to what I have said about when things go wrong but with terms and conditions for uniform and body armour. The culture issue will be addressed, but it will take time. We will see more women in the military—I am confident of that—and as a consequence we will see more women in the court martial system.

[Luke Pollard]

Is it possible for the Minister to publish the data, on an annual basis, of how many men versus women are on the boards? It would be useful to be able to see the change. The stats that the Minister gave earlier were useful, but seeing the direction of travel on an annual basis as part of normal MOD reporting could be helpful. Is that something she would consider?

[Sarah Atherton]

Yes. One thing I did not mention is that the intention is to review this after a year to look at its success, and to ensure that women are on the boards. If there are operational requirements as to why someone has to be withdrawn, that is something we need to keep an eye on. I will write to the hon. Member to see if we can do it on an annual basis, rather than just at the 12-month mark; hopefully we will see more women on the court martial board.

Duty of due regard will be reviewed. It is a starting block; when it was introduced, it was always a starting block. It will be reviewed with regard to the devolved administration involvement and the central Government. If the requirement is there to include these statutory agencies and if there is a requirement to extend the scope to other fields outside health education, we will do so, but we need evidence to say that that is necessary first.

Let me turn to Gibraltar. The Gibraltarian regiment is a civilian-raised regiment, and does not come under the definition of the UK regular forces. It falls outside the Armed Forces Act, but if it wants to be included it can write to the MOD and request that; that is not a problem.

[Luke Pollard]

May I press the Minister on that point? She is right about the Gibraltar regiment, but for non-Gibraltar regiment personnel stationed in Gibraltar—there are UK service personnel outwith that regiment—this legislation, according to the territorial extent, would not apply. Is that her understanding? That regiment and the additional personnel we have there seem to be dealt with differently.

[Sarah Atherton]

That is a fair point. I will get back to the hon. Member on that.

Families extend to foster children and special guardianships. I reiterate that the definition of an extended family goes outside the scope of the Armed Forces Act, because we recognise that it needs to be more encompassing. Again, we will keep an eye on that.

In response to the hon. Member for Glasgow North West, LGBT is not quite in scope, but I will say quickly that Lord Etherton is undertaking a review. We need to right some wrongs, and I will look into that. Murder, manslaughter and rape have been mentioned— again, slightly outwith. The independent pay review body will report in spring, but at the moment the armed forces have the highest salaries they have had in 20 years. A cost of living package is in place to support them going forward. I am conscious that we will also be looking at our BAME community. I will work with representatives to ensure that they are not outside what we are focusing on, and that they are included in how we go forward with the transformation and modernisation of the military.

The hon. Lady also mentioned children going into schools. Children already receive a service pupil premium, but some work is going on as to how beneficial that is and whether we can do more to help service families as they move around the country and abroad. The Army Foundation College Harrogate is an exceptional college, taking in a lot of young people from all sorts of diverse backgrounds and educating them to a higher level than when they joined. It also educates them in future military life. There have been some issues—it would be wrong to say that there had not been—and I will look into them. I think that is everything.

Question put and agreed to.

Resolved,

That the Committee has considered the draft Armed Forces (Covenant) Regulations 2022.

DRAFT ARMED FORCES (SERVICE COURT RULES) (AMENDMENT) (NO.2) RULES 2022

Resolved,

That the Committee has considered the draft Armed Forces (Service Court Rules) (Amendment) (No. 2) Rules 2022.—(Sarah Atherton.)