Armed Forces Bill (First sitting)

Sharon Hodgson Excerpts

Thursday 25th March 2021 Public Bill Committees

[Johnny Mercer]

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

[Mrs Sharon Hodgson (Washington and Sunderland West) (Lab)]

I beg to move amendment 19, in clause 7, page 4, line 26, at end insert—

‘(4A) Guidance under (3)(a) must provide that murder, manslaughter and rape must be tried in civilian court when offences are committed in the UK.’.

This amendment will 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 Chair]

With this it will be convenient to discuss the following:

Amendment 2, in clause 7, page 6, line 27, at end insert—

‘(ca) Justice Directorate in Scotland’.

This amendment equalises the requirement for all the devolved administrations to be consulted.

Clause stand part.

[Mrs Hodgson]

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.

[Martin Docherty-Hughes]

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.

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[Martin Docherty-Hughes]

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.

[Mrs Hodgson]

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.

[The Chair]

Does the hon. Member for West Dunbartonshire wish to press amendment 2 formally? It has just been debated.

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[Mr Holden]

I support exactly what the Minister has said. After spending time in the MoD as a special adviser myself, I know that it is vital that we do everything possible to ensure that our reserve forces are part of the whole force approach. This clause is in that category, so I support it.

Question put and agreed to.

Clause 9 accordingly ordered to stand part of the Bill.

Clause 10

Service complaints appeals

[Mrs Hodgson]

I beg to move amendment 20, in clause 10, page 20, line 17, leave out subsection (4).

This amendment will remove attempts to reduce the amount of time service personnel have to make appeals in service complaints cases from six weeks to two weeks.

[The Chair]

With this it will be convenient to discuss the following:

Clause stand part.

That schedule 3 be the Third Schedule to the Bill.

New clause 9—Service complaints—

‘(1) The Armed Forces Act 2006 is amended as follows.

(2) In section 340A (who can make a service complaint?) after subsection (1) insert—

“(1A) If a person to whom the Armed Forces Covenant applied find themselves wronged in any matter relating to the Armed Forces Covenant, the person may make a complaint.”

(3) In section 340A (who can make a service complaint?) at end insert—

“(4A) Not withstanding any regulation made under subsection (4), a person may make a complaint about the delivery of the Armed Forces Covenant.””

This new clause would expand the powers of the Service Complaints Ombudsman to include matters relating to the Armed Forces Covenant. This would provide service personnel and veterans with an avenue through which they can report and arbitrate disputes regarding its delivery.

[Mrs Hodgson]

Amendment 20 would remove attempts to reduce the amount of time that service personnel have to make appeals in service complaints cases from six weeks to two weeks. New clause 9 would expand the powers of the service complaints ombudsman to include matters relating to the armed forces covenant. This would provide service personnel and veterans with an avenue through which they could report and arbitrate disputes regarding its delivery. If I may, I will start with amendment 20 on the time to appeal.

During the evidence sessions, we heard about delays at the front of the complaints system, at level 1. The target is that 90% of complaints are dealt with in 24 weeks, but that is not being met and the former service complaints ombudsman, Nicola Williams, says that that is not an appropriate metric if it cannot be met. The delays at the front of the system are the reason why people do not have confidence in it. In my previous speech, I mentioned the culture and archaic views that still persist about perpetrators, but also victims, which makes them often reluctant to come forward with a complaint. Nicola stated:

“If the initial process is taking not months but sometimes years before a level 1 decision, and then you ask the complainant to keep to a two-week appeal timeframe, with reasons, you can see how that is not exactly going to engender further confidence in the service complaints system, either from a complainant or from a respondent.”

Retired Lieutenant Colonel Diane Allen also supported that and said that reducing the right to appeal

“would not in any way help the system we have at the moment.”

She went on to say that it would be “profoundly unfair”, given that the complainant will receive MOD legal documents and be expected to understand them within just two weeks, without legal representation.

Nicola Williams said that reducing the time to appeal would:

“come across…as if you are trying to prevent people from exercising their right to appeal”.

I am sure that it is not the Minister’s intention to reduce or remove people’s right to appeal, so will he set out what his intention was, given that we have heard that the issue with delays is at the front of the system and not at the back?

New clause 9 would expand the powers of the service complaints ombudsman to include matters relating to the armed forces covenant. This would provide service personnel and veterans with an avenue through which they could report and arbitrate disputes regarding its delivery. The Minister has previously said that the covenant would be enforced via judicial review. Only one in 10 judicial reviews succeed, and the cost of unsuccessful judicial reviews is upwards of £80,000. That is why we have tabled this amendment—to ensure that access to redress is easy and accessible.

The Army Families Federation set out in written evidence that

“there is little value in a review and remediation process that might take months, or even years, to resolve.”

Stakeholders, including Cobseo, back our calls for an appropriate ombudsman to enforce the covenant. Given that complaints to the local government and social care ombudsman on the covenant are mostly about things like school transport and admissions, service families do not have the time to wait years for the outcome of a judicial review. They need an immediate response. I thank the Minister for providing a draft copy of the statutory guidance last night. I note that on page 4 there is a suggestion that the complaints process may include an ombudsman. Will that be instead of or as well as judicial review? 

Mr Sunderland, both amendment 20 and new clause 9 seek to ensure that service complaints and disputes about the enforcement of the covenant are dealt with quickly and effectively, to ensure that serving personnel, veterans and their families get the best possible service as a result of the Bill.  I hope the Minister will take these amendments on board.

--- Later in debate ---

It will be interesting to see what proposals the Minister brings forward. I strongly urge him to look at this area, because it will improve the Bill, not only in terms of redress but in the way in which we can ensure that people are not disadvantaged as a result of serving their country, and that there is some form of redress if that is not achieved.

[Mrs Hodgson]

I have listened carefully to the Minister’s response, but due to the strength of the evidence that we received from witnesses I would like to test the will of the Committee and press amendment 20 to a vote.

[The Chair]

The question is that the amendment be made.

--- Later in debate ---

[Carol Monaghan]

The new clause would require the Secretary of State to use the annual armed forces covenant report to assess the health and educational outcomes of personnel under the age of 18 and the service of personnel under the age of 18 in relation to article 3 of the convention on the rights of the child.

The time in a young person’s life from the ages of 16 to 18 is significant, and this transition to adulthood is typified by expanding opportunities and capabilities. These years also bring substantial risks and vulnerabilities. Research undertaken by UNICEF has shown that adolescents are more vulnerable to external pressure, influence and risk taking than adults are because of the processes of neurocognitive and psychological development. To ensure the transition between adolescence and adulthood as a time for healthy development and resilience building, 16 and 17-year olds must be in an environment that facilitates sustained learning, skills development, respect for individuality, social support and strong relationships. The UN convention on the rights of the child recognises the needs and vulnerabilities of adolescents and it consequently defines every person below the age of 18 as a child. This convention obliges all public or private social welfare institutions, courts of law, administrative authorities or legislative bodies to always consider the best interests of the child in any matter which concerns them.

I do not consider 16 and 17-year olds to be children; I would consider them as young people. However, the same applies here. For the reasons I have stated, we have a moral and legal duty to pay particular attention to the experiences and outcomes of those who join the armed forces before they turn 18. Those under 18 in the military take on risks and obligations just like their adult colleagues, which may put them at a disadvantage relative to their civilian peers in areas such as health and education.

While Army recruits are not sent to the frontline until they turn 18, the impact of military employment at such a young age, particularly on recruits from a stressful childhood background, has raised numerous human rights and public health concerns. Among those who have raised concerns have been the UN Committee on the Rights of the Child, the Children’s Commissioners for the four jurisdictions of the UK, and the Joint Committee on Human Rights. The Ministry of Defence does not collect information about the socioeconomic profile of armed forces personnel. However, other research has found that Army recruits under the age of 18 generally come from England’s poorest constituencies, with recruitment concentrated in urban fringe areas in the north of England.

Official data from the MOD shows that the youngest recruits tend to have underdeveloped literacy. Education for the youngest Army recruits is largely restricted to basic literacy, numeracy and IT. As I have already mentioned, with 30% of 16 and 17-year-old recruits leaving before finishing phase two training, that presents an immediate risk to their employment, education, training and social mobility prospects, and it certainly puts them at a disadvantage compared with their civilian peers.

As for health, those recruited under the age of 18 are more likely to die or be injured in action over the course of their military career, and they are at greater risk of mental health-related problems, such as alcohol abuse and self-harm. The additional rights and protections of 16 and 17-year-olds under the law and the need to ensure positive health and educational outcomes for this age group is a clear justification for the MOD to consider the impact of military service on personnel aged under 18.

As such, new clause 3 would require the Secretary of State to use the annual armed forces covenant report to assess the health and educational outcomes of personnel under the age of 18 and to consider whether service is in their best interest. Such annual reporting carries no risk to the effectiveness of the armed forces, rather it would solely ensure that those entering the armed forces under the age of 18 are given the consideration they require.

When we are considering the issue of no disadvantage in health and education, this should include proper consideration of the disadvantage that young recruits may experience compared with other 16 and 17-year olds. As these years are crucial in shaping life outcomes, it is important that the Ministry of Defence treats the welfare of service personnel under the age of 18 with the highest priority and comes forward freely to report on their outcomes.

[Mrs Hodgson]

It is a pleasure to follow the hon. Lady. New clause 12 would require the Government to do three things: first, to produce a definition of “priority care” to help primary care clinicians to deliver on the commitments in the armed forces covenant; secondly, to conduct a review of mental health waiting time targets for service personnel and veterans; and, finally, to produce a resource plan to meet current waiting time targets. I shall address each in turn.

“The Armed Forces Covenant Annual Report 2020” acknowledges the confusion about what priority care means. It says that

“in practice this remains inconsistent, and there is a lack of clarity about the interpretation of the policy by government, clinicians, and the NHS.”

During oral evidence to this Committee, Ray Lock, from the Forces in Mind Trust, said that

“anything you can do to provide greater certainty would be helpful.”

The first part of this new clause therefore seeks to do just that and provide a definition as to what the Government really mean when they talk about priority care and treatment.

Moving to the second part of the new clause, on a review of mental health waiting time targets for service personnel and veterans, I have already written to the Minister regarding waiting times under TILS—the veterans’ mental health transition, intervention and liaison service—which have not been met. The average waiting time to be offered a face-to-face appointment for TILS in 2019-20 was 37 days, which misses the target of 14 days. Conducting a review of mental health waiting time targets for service personnel and veterans would establish why they are not being met and—to move to the final part of the new clause—what action needs to be taken to address that gap.

I know that the Minister is proud of the launch of Operation Courage, but I urge him to continue to seize this moment to make real and measurable change to the mental health services for serving personnel and veterans. This new clause would bring much-needed clarity to the priority care promised through the covenant and is designed to address the issue of waiting times not being met. I know that the Minister will want to resolve those issues and I therefore hope that he takes the opportunity offered by the new clause.

[Johnny Mercer]

I pay tribute to the hon. Member for Washington and Sunderland West and her dogged support for these issues. The problem that the Government have with new clause 12 is the fact that this stuff is already covered in the annual covenant report, as required by the Armed Forces Act 2006. On the issue of waiting time targets and resource plans, I refer hon. Members to the armed forces covenant report, which contains that suite of metrics concerning physical and mental health service provision.

I recognise that the hon. Lady has written to me, and I am investigating the figures that were presented in the House. I have a dashboard that shows me waiting times in TILS, the CTS, which is the complex treatment service, and HIS, the high intensity service, across the country. If it is wrong, I will write to her and correct the record, but above that, I will do everything I possibly can to drive down those waiting times.

The metrics assessing health service performance are kept under constant review to ensure that they continue to usefully measure the state of health service provision in England. Separate reporting in this case would be disproportionate. Although I appreciate the desire to pin down in general terms the definition of “priority care”, we must be circumspect in doing so or risk the possibility of unduly binding those public bodies that are in scope to a model that would not necessarily meet the needs of the local population. It is for that reason that we designed the legislation around a duty to have due regard. That ensures that service deliverers have the flexibility to cater for local requirements, while ensuring an increased awareness and understanding of the armed forces covenant.

The Department will be developing guidance with a wide range of stakeholders over the next year. It will include an explanation of the unique features of service life and the sacrifices made by the armed forces community. It will explain how these obligations and sacrifices can cause disadvantage for the armed forces community in respect of their ability to access goods and services.