Motion A1 (as an amendment to Motion A)

Armed Forces Bill - Commons Reasons – in the House of Lords at 4:15 pm on 8 December 2021.

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Lord Thomas of Gresford:

Moved by Lord Thomas of Gresford

At end insert “, and do propose Amendment 1B in lieu—

1B: Page 4, line 27, at end insert—“(4A) Guidance under subsection (3)(a) must provide that where offences of murder, manslaughter, domestic violence, child abuse, rape or sexual assault with penetration are alleged to have been committed in the United Kingdom, any charges brought against a person subject to service law shall normally be tried in a civilian court unless, by reason of the circumstances, including but not limited to specific naval or military complexity involving the service, the Director of Public Prosecutions, after consultation with the Attorney General, directs trial by court martial.””

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General

My Lords, I will start with a quotation. In the Ministry of Defence

“there is one individual who is refusing to back down from the alleyway he has found himself in.”—[Official Report, Commons, 6/12/21; col. 105.]

Those are the words of the former Defence Minister Johnny Mercer, speaking in the debate in the other place on Monday night, on the amendment that we sent. He had earlier said:

“Unfortunately, I was in the room when this decision was made. The evidence did not support the Secretary of State at the time and the evidence does not support the Secretary of State today. I cannot vote against the Lords amendment; it is not the right thing to do. Let me be clear: when the Secretary of State made that decision”— the issue that we are discussing today—

“it was against the advice of the officials in the Department and against the advice of his Ministers.”—[Official Report, Commons, 6/12/21; col. 104.]

Unusually, the veil is lifted. Mr Mercer clearly identifies Mr Ben Wallace, the Secretary of State for Defence, as the man in the alleyway who, against the advice of his officials and his Ministers, persists in resisting this amendment. The Minister knows that I have always assumed that she would not, in her personal capacity, back the Government’s position—but now we have direct evidence from Mr Mercer, her former colleague.

I could leave it at that. I could await the storm of protest from victims whose cases are dismissed at court martial, who will come forward brandishing the Judge Lyons review and the recommendations, after considerable investigation, contained in Sarah Atherton’s report, published last July, to which I have referred at every stage—Sarah Atherton being the only Conservative Member of Parliament ever for Wrexham.

I doubt that the controversy when those protests are made will improve Mr Wallace’s or the Government’s standing with the public on the highly sensitive issue of sexual offences, but I have a deep concern that the reputation of the service justice system in the UK should not be sullied.

On Monday afternoon, I took part in an international forum organised by my friend Professor Eugene Fidell of Yale University, founder and former president of the National Institute of Military Justice in the United States. The forum meets regularly. On this occasion, we considered the way that sexual offences are dealt with in the Canadian military. This is a live issue in many jurisdictions. I had hoped that the United Kingdom would show the way, but I will remind the House of some of the UK statistics that were before the other place.

The Atherton committee interviewed many in search of evidence. Some 64% of the more than 4,000 service- women who submitted evidence to the committee stated that they had experienced sexual harassment, rape, bullying or discrimination while serving in the Armed Forces. Over the past five years, the average conviction rate for rape in civilian courts, from Ministry of Justice data, is 34%. Over the same five years, from using the data of the MoD, it is just 16%. The Minister told us that it was 15% for courts martial over the last six months. If you use Crown Prosecution Service data, the figures are even worse.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), The Minister of State, Ministry of Defence

I thank the noble Lord for taking this point of correction. The statistic I gave him for cases of rape prosecuted in courts martial in the last six months shows a conviction rate of just under 50%.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General

Obviously, I misheard the noble Baroness. I will continue. As I said on Report, I am not aware of any murders committed in the UK by service personnel that have been tried by court martial. Of course, that could have happened only since 2006, when the novel change to concurrent jurisdiction was introduced. I have noted two cases of manslaughter arising from deaths at the Castlemartin range in west Wales, in live firing exercises, which involved the organisation of training activities, but I am not aware of any trials of sexual offences at court martial in the UK where the victim was a civilian. If there were any, I shudder to think of the effect on a civilian complainant of giving her evidence in intimate detail, against a serviceman, to a panel of uniformed officers, at a court martial.

Until now, the verdict of a court martial in such a case would have been by a simple majority, but I welcome the changes in this Bill that lead to a different situation. Imagine the difficulty of a junior service woman or man making a complaint of rape to her or his commanding officer, particularly if the alleged offender is senior to them in the chain of command, as is often the case. In addition to all the stresses and strains that already dissuade many women in civilian life from complaining, she, a servicewoman, has to face the effect on her career, an appearance before a board of senior officers, very low chances of conviction and the possibility that, in the event of an acquittal, the terms of her service will keep her in contact with her attacker. At least in a civilian court, the jury, to whom she would give her sensitive and difficult evidence, is 12 anonymous people drawn from the public. They will have no effect on her career and she is most unlikely ever to see them again—contrast that with giving evidence of sexual offences before a court martial.

Sir Robert Neill, with all his experience and wisdom, pointed out in the other place on Monday that the normal safeguards that apply in these cases in civilian courts are not yet available in the courts martial, in both the investigatory and procedural stages. Again, I draw the Minister’s attention to the effect upon the recruitment and retention of women in the Armed Forces. Would you expose your daughter to the probability that she will be subject to sexual harassment and worse, without the protection of a satisfactory service justice system?

I listened to the debate in the other place, and my amendment in lieu has changes. Objection was made to the role ascribed to the Attorney-General. The Minister has made a similar objection in this House, and I have to admit that I had assumed that the Ministry of Defence and the Members in another place appreciated the constitutional position of the Attorney-General. It is one of his functions to supervise the Director of Public Prosecutions and the Director of Service Prosecutions and to be answerable in Parliament for them and their decisions. Hence it was Judge Lyons’ recommendation that the AG’s consent should be sought for the trial by a court martial of murder, manslaughter, rape and serious sexual offences committed in the UK. I agreed with his position: it represents the correct status of the Attorney-General in this country.

However, if the consent of the Attorney-General is the problem, this amendment in lieu leaves decisions about trial venue in the hands of the Director of Public Prosecutions—but only after consultation with the Attorney-General. The DPP would naturally consult the DSP, but, as the Minister, Mr Leo Docherty, made clear on Monday evening, it is the DPP’s decision in the end.

I say to the Conservative Benches that, if they vote against my amendment, they would be voting merely for the stubborn man in the alleyway, in Johnny Mercer’s words. They would be voting against the views of the officials in the Ministry of Defence and the departmental Ministers at the time that this was first considered, against the leading recommendation—number 1—of Judge Lyons and, above all, against the passionate findings of the Conservative Member of Parliament and her cross-party committee. Sarah Atherton—the only women in history to have risen from the ranks of the Armed Forces to become a Member of the House of Commons—knows what she is talking about. I ask those opposite not to vote against this amendment. I beg to move.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour

My Lords, I am disappointed that the Government are maintaining their opposition to civilianising the courts martial for serious cases, such as murder, manslaughter and rape. The conviction rate for rape alone is 16% in the military courts, as reflected in the remarks from Mr Johnny Mercer in the other place. The Minister has given certain other figures for the last six months. I am very interested in this. Perhaps she could give me the size of the sample when she is winding up? Perhaps we could have a bigger sample, perhaps of a year. I would have thought that these figures alone would cause concern that something was wrong.

Service personnel do not have the statutory protection that other people have when they are tried in ordinary criminal courts or the statutory protections that are embedded in law to ensure that, where there is a majority direction, it is made known, the numbers are made known, and everyone knows where they stand. Nothing of that kind happens in courts martial. According to the Minister on a previous occasion, in some cases—they may be small in number—a verdict of 2:1 is certainly not in conformity with modern criminal jurisprudence.

It is more than five years since I expressed my concern following Sergeant Blackman’s case in a number of debates which I initiated and which led to the Lyons review. I commend the Government for setting up that inquiry. Perhaps they should have listened to its conclusions as expressed by Mr Lyons.

I shall be very brief but I foresee that, before the next renewal of the Army Act, someone concerned with good governance in the Ministry of Defence will see the inevitable case for radical reform. I support the amendment moved by the noble Lord, Lord Thomas of Gresford. He is absolutely right that the Attorney-General supervises the Director of Public Prosecutions. I see no constitutional difficulty in that. If the amendment may be technically wrong, then perhaps we should have had some kind of provision to enable the situation in Scotland and Northern Ireland to be reflected accurately. I support the amendment.

Photo of Lord Burnett Lord Burnett Liberal Democrat 4:30, 8 December 2021

My Lords, I draw attention to my entries in the register of interests and declare that I had the honour to serve in the Royal Marines. I will make a short contribution to this debate. I have only recently discovered that Sir Richard Henriques has made mention of and quoted from speeches I and others made during the progress earlier this year of the now Overseas Operations (Service Personnel and Veterans) Act. I put on record my thanks to him for his thorough and compelling report.

I also support this amendment in the name of my noble friend Lord Thomas of Gresford, who has a wealth of knowledge and experience in these matters. If the Government remain unconvinced of the merits of Motion A1, they should commission further research into whether the hierarchical nature of service life is imported into the court martial system or if there is a perception that it is. In other words, are panel members influenced by the hierarchy’s view or what they perceive is the hierarchy’s view?

This concerned me in the Sergeant Blackman case; I played a minor role in the campaign to exonerate him. He served in 42 Commando Royal Marines, had an exemplary record and had been deployed on active service six times in Iraq and Afghanistan. This amounted to six six-month tours of intensive combat operations in seven years. This is not a complaint but an explanation. I always believed that the philosophy of a court martial was that the individual service man or woman should be tried by their peers. In other words, the panel should be comprised of individuals who had experienced the same horrors and dangers of the battlefield with which Sergeant Blackman was only too familiar. In his case, it was an allegation of murdering a mortally wounded enemy operator on the battlefield. The court martial conviction for murder was rightly quashed at the behest of the Criminal Cases Review Commission. A terrible miscarriage of justice was partly righted.

There were seven members of Sergeant Blackman’s court martial panel, five of whom had very little or no experience of combat soldiering in the most dangerous, arduous and exhausting conditions. These conditions were exacerbated by being in mortal danger most of the time, in the full knowledge that at any time Sergeant Blackman or any of the Marines under his command could have set off an improvised explosive device which could have killed or maimed any one or more of them. Two members of that panel had shared that experience, and Sergeant Blackman was convicted by a vote of 5:2 This was an insufficient ratio for a civilian criminal court to convict.

There are other disparities between court martials and civilian criminal court trials that I and others have mentioned in previous debates; they have already been aired here, in part. These disparities do not flatter the court martial system. The further research that I have suggested should also encompass service rivalry, battle fatigue—which can affect the strongest and bravest of men or women—the effects of provocation, and being in continuous mortal danger for months without a break, often in extreme weather conditions. It should also consider the impact of misogyny, sexism and racism in the court martial system, and whether civilian criminal courts would provide a more balanced and equitable system of justice.

Finally, in chapter 8 of Sir Richard’s admirable review, headed, “Legal support and the Defence Representation Unit”, he makes six recommendations, numbered 47 to 52 inclusive. I ask the Minister the following questions. First, have the Government accepted these recommendations? Secondly, will the Government consult on them? Thirdly, will there be a debate in this House on the results of that consultation? Finally, what is the Government’s timetable for their implementation?

Photo of Lord Craig of Radley Lord Craig of Radley Crossbench

My Lords, I will speak to Motion B1 in my name. It was a great disappointment that the other place was not prepared to accept this House’s well-supported amendment, originally proposed by the noble and learned Lord, Lord Mackay of Clashfern, and to which I readily added my name. With his vast and rightly respected experience, he considered that the Secretary of State should have a statutory duty of due regard for veteran affairs. The telling example of Gulf War syndrome was mentioned. Noble Lords will recall that the Government of the day were reluctant to see or treat this issue with the seriousness it seemed to deserve. It affected a considerable number of service and ex-service personnel who had served in Operation Granby in the first Gulf War of 1991.

A number of noble Lords, dismayed by the Government’s decisions just to set up further studies, arranged an independent inquiry chaired pro bono by a distinguished Law Lord, Lord Lloyd of Berwick. He conducted a fair and exhaustive inquiry to which I, as Chief of the Defence Staff during the conflict, gave evidence. But no Government Minister was prepared to be interviewed, or even to attend any of the hearings. That was an example of impact on veterans that was not solvable at local level.

At Report, I quoted another example, that of the veterans of the Hong Kong Military Service Corps, whose long-outstanding case also could not be resolved at devolved or local-authority level. I understand that the MoD has passed this case back to the Home Office, but I hope that the MoD still sees it as a veteran case that deserves its continued interest and a responsibility to see it finally settled. It would be most unsatisfactory, when dealing with the concerns of veterans, for the MoD and the Secretary of State not to continue to be seen to be actively supportive of their veterans. A statutory requirement for the Secretary of State to pay due regard and be seen to discharge a duty of care for veterans seems more important than ever. Serving personnel, soon to be veterans, may well have been involved in live operations that, more than ever, are subject to active ministerial oversight and even direction. Looking to the future, assuming the media reports of hearing damage to soldiers testing the Ajax AFV to be true, this could become a veteran issue—an issue that needs a duty of care for all the veterans as a group, not just individually, where there might inevitably be differing outcomes causing lasting resentment.

This amendment therefore gives the Secretary of State time to consider his responsibility further and report to Parliament. As the amendment spells out, it requires the Secretary of State to detail

“the implications of not applying the same legal responsibility to have ‘due regard’ under the Armed Forces Covenant to central government as the Act requires of local authorities and other public bodies.”

It has been argued that the Secretary of State believes that he and central government already bear this responsibility. Why, then, is there this reluctance to spell it out closely in statute?

The Minister in the other place made the particular point that, because the Secretary of State makes a report to Parliament annually, he is fully discharging his duty of care for veterans. But it is not just a moral duty; the Armed Forces Act 2011 made reporting annually a statutory requirement, so it seems to follow that “due regard to” should be enacted; otherwise, the statutory responsibility is confined just to reporting.

The Minister in the other place said that,

“responsibility for the actual delivery of nuts-and-bolts frontline services and their impact … rests at local level”.—[Official Report, Commons, 6/12/21; col. 99.]

He made no mention of the heart of your Lordships’ case, that there were some issues that could not be dealt with at local level. Why was this not considered? All he said was that the inclusion of central government was simply unnecessary; he did not explain why. As I have just mentioned, the MoD has passed the case that I cited on Report of the Hong Kong veteran to the Home Office; one central department having due regard has passed it directly to another. I rest my case.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee)

My Lords, I entirely support what the noble and gallant Lord, Lord Craig of Radley, has just said, but I want to add a word on Motion A1. It is clear that the overwhelming majority of people with real experience of the criminal and military justice systems support that Motion A1. The Minister is quite right: the service justice system has improved enormously over the past few years, but there is a fundamental respect in which it is different—that is, that there is no trial by jury. Trial by jury is the essence of our system. It gives confidence to the victims, which is critical in the very serious crimes that we are considering, and it is a fundamental right of the defendant. We should not do anything to take those rights away or to undermine confidence; that is the fallacy in the Minister’s argument.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

My Lords, I intervene briefly to support the amendments in the name of the noble Lord, Lord Thomas of Gresford, so ably supported by the noble and learned Lord, Lord Morris, the noble Lord, Lord Burnett, and my noble and learned friend. I have nothing usefully to add to what has been said by them in the context of Motion A1. They are huge authorities on this matter, and the House is right therefore to support them again and ask another place to think once more on that question.

I rise to support my noble and gallant friend Lord Craig of Radley on Motion B1, especially having spoken on this matter when we last considered it. He is right that some things cannot be settled at local level—and I say that as someone who has served in local government. Some things need to be settled centrally, and that should be spelled out in the Bill; that is so. He has made a compelling case as to why there should be some further consideration given to the duties that we have towards our armed servicemen and who has to implement those duties, specifically in the case of the Hong Kong ex-servicemen that was given as a very good example during Report and again by my noble and gallant friend.

The Minister has taken a great interest in this matter and knows that it concerns a very small number of people and that it is on a par with how we rightly dealt with the issue of the Gurkhas. We should do the same for these servants of the Crown, not least because of the developments in Hong Kong, where we have seen the destruction of democracy. Who would be more at risk than people who have served in our Armed Forces in Hong Kong?

If the noble Baroness cannot accept the amendment today and if it does not go back to another place, we will quite soon have before us the Nationality and Borders Bill. If she can do nothing else, she has heard what my noble and gallant friend has said about how this has now been referred back to the Home Office, which will have responsibility for that Bill. When the noble Baroness, Lady Goldie, replies for the Government tonight, she will have the opportunity to say to us whether included within the provisions of that Bill will be, as was reported in the media earlier this week, the possibility that this glaring oversight and injustice will be rectified in the course of that legislation. I hope that she will take the opportunity when she comes to reply to say whether that is being seriously considered by the Government and whether she is able to allay some of our concerns, at least on that count.

Photo of Baroness Smith of Newnham Baroness Smith of Newnham Liberal Democrat Spokesperson (Defence), Liberal Democrat Lords Spokesperson (Defence) 4:45, 8 December 2021

My Lords, I rise to support both Motion A1 in the name of my noble friend Lord Thomas of Gresford and Motion B1 in the name of the noble and gallant Lord, Lord Craig of Radley.

As the noble Lord, Lord Alton of Liverpool, just pointed out, several noble and learned Lords and noble and gallant Lords have already articulated the case for Motion A1 very cogently. I do not propose to speak to that in any detail, because they have already made the case, as did the Member for Wrexham, Sarah Atherton, in the other place.

If there was only one Minister who was keen to keep service justice the way it is and for issues of murder, manslaughter, domestic violence, and so on, to be kept in the courts martial system, that suggests, as my noble friend Lord Thomas of Gresford pointed out, that the Minister perhaps does not share the same views as the Secretary of State. Clearly, it is not the job of your Lordships’ House to persuade the Minister to come clean on her personal view; she is clearly speaking for the Government. However, if there is perhaps some difference of opinion within the MoD, might it be possible for the Minister to think again and for her to persuade Members of the other place to think again? The cases that have been put forward—the words of Johnny Mercer MP and the report brought forward by the Defence Committee of the House of Commons—are compelling.

I suggest that Motion B1 is in some way superior to what the Government are asking us not to agree with—that we do not go with the amendment that we voted on and approved on Report. At that stage, the amendment just talked about the Secretary of State, but that is slightly ambiguous. Which Secretary of State? The assumption implicit in that amendment was that it was the Secretary of State for Defence. However, on Report, the noble Viscount, Lord Brookeborough, pointed out that the situation was vital in Northern Ireland, and there it would not be necessarily be the Secretary of State for Defence that mattered so much as the Secretary of State for Northern Ireland. The new amendment makes clear the import of what we had intended in the first place, all the way back at Second Reading and in Committee, that central government should be brought within the purview of the Bill.

The Minister says that this is about ensuring that key policymakers have the right information. She seemed to imply that this related only to local government, housing associations, local health providers—that is, people providing health, education and welfare support that come under the Bill. But surely that relates also to central government. In particular, it relates to all parts of central government. It does not just relate to the Secretary of State for Defence, particularly if he is caught up some blind alley. It also relates to the Home Secretary. We have already heard about some aspects of what might appear to be issues related to the military being passed over to the Home Office. Surely it is not adequate for the Secretary of State for Defence to report annually to the other place if what we need is the Home Secretary to bear in mind the needs of veterans and service personnel, particularly those who served in Hong Kong, or maybe the Gurkhas.

There is a need for the Bill to apply to central government as well as to local government and other authorities. I urge the House to support Motion B1 as well as Motion A1.

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords)

My Lords, I support Amendments A1 and B1. I will not go into the legal arguments around Amendment A1: the noble Lord, Lord Thomas of Gresford, the noble and learned Lord, Lord Thomas of Cwmgiedd, and others have spoken about many of the legal reasons why this would be an improvement, and we wish the Government to think again on it. I say to the Chamber that review after review has said to the Government that the civilianisation of murder, manslaughter, rape and these charges would be of immense benefit. It is review after review after review; not just one review and then another review says something different, but review after review after review.

In what I thought were devasting comments in the other place—as the noble Lord, Lord Thomas of Gresford, pointed out—the Minister responsible for the delivery of these policies agreed with the amendment that was put. You sometimes wonder what parallel universe you live in when all the evidence and all the points put forward support the amendment, only for it to be resisted by the Government. I ask the Minister—who frankly even in her remarks today went further than she has in some of our other debates—to reflect on that. The reviews and now Johnny Mercer MP in the other place say that as well.

Can the Minister clarify the statistics for us? The statistics quoted by Johnny Mercer were 16% but, as the noble Lord, Lord Thomas, pointed out, the Minister quoted a much different figure. I think it was around 50%—to be fair, I cannot remember the exact figure. I think we would all be interested in this House in how that figure was arrived at, what the sample size was, and what length of time it was done over. This is an important amendment. I am very pleased to support Amendment A1, as outlined by the noble Lord, Lord Thomas of Gresford.

I ask the Minister: is there is any update on where we have got to with the defence-wide strategy for dealing with rape and serious sexual offences within the service justice system? Is there any further news about when we can expect that?

I also want to briefly say something about this. I say this as my last comment on these issues around the service justice system. Significant numbers of cases continue to be raised by Sarah Atherton and by many of the other members who continue to serve. We read about it in our newspapers. We need to reflect on the fact that case after case is brought forward. This would be a way for the Government to restore confidence in the system and in the way that these issues are dealt with.

In supporting the amendment from the noble and gallant Lord, Lord Craig of Radley, I point out to the Chamber that again this is something that the Royal British Legion sees as of immense importance and that needs to be done. It is something that would improve the situation.

Just recently, on 6 December, the Government published the draft statutory guidance for the covenant. It lists the responsibilities on healthcare authorities, the responsibilities on local authorities, the responsibilities on every single public body you could virtually think of except the Government themselves. I say to the Minister that I have never been convinced in any shape or form that the people of this country would believe that a covenant between the state and the people would exclude the national Government. I just do not believe that people, whatever the rights and wrongs of it, would understand that. The perception of it, apart from anything else, is something that undermines that.

I appreciate what the Government have done in the Bill in terms of placing a legal duty on everyone, but I wonder why it places a legal duty on everyone but the national Government themselves and I ask the Government to think again on that.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), The Minister of State, Ministry of Defence

My Lords, first, I thank your Lordships for, as ever, interesting and thoughtful contributions on both issues being debated this afternoon, particularly Motions A1 and B1. I will first address the comments made in relation to Motion A1. By way of preface, it is worth noting that this matter was debated and decided in the other place by an authoritative and substantial majority. Notwithstanding that, I will endeavour in my remarks to engage your Lordships and repeat why the Government hold to the position they do. I am grateful for the further comments made.

Perhaps I should clarify to the noble Lord, Lord Thomas, who seemed to doubt my commitment to the matters of the service justice system, that I and the Government are convinced of the wisdom of retaining unqualified concurrent jurisdiction for murder, manslaughter and rape—I want to make that crystal clear. I remind your Lordships that, contrary to what some contributions indicated, that view is supported by a distinguished former High Court judge, Sir Richard Henriques.

I was also interested to note that remarks from a number of your Lordships with very senior and impressive legal backgrounds seemed to be addressed exclusively to England and Wales. With all respect, the service justice system that we all admire and revere has to extend across the whole of the UK and must reflect the different systems within it. Military justice must be universal across the UK and the proposal in the Bill achieves that end in a way in which the noble Lord’s amendment does not.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General

Perhaps I might challenge the Minister on that. If the civil jurisdiction is to be used for an offence committed in Scotland or Northern Ireland, court martials then become immaterial—so there is no problem, as the Minister seems to think. This point has not been raised at any stage of the Bill until today. There is no problem if the ordinary courts of Scotland and Northern Ireland are to deal with offences which occur within that jurisdiction. The question of whether a person is in the military or not is then irrelevant; the offences will be dealt with as usual.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), The Minister of State, Ministry of Defence

Yes, but with all respect, I say to the noble Lord that that is not the essence of the issue. The essence is instead how you create a service justice system which can operate across the United Kingdom and ensure that, when discussions take place with the appropriate civilian prosecutors, appropriate decisions are reached on the correct jurisdiction for the case. That might be, within the service justice system, convening in Scotland, but under the noble Lord’s amendment there is clearly a desire to bias the whole service justice system in respect of England and Wales to the civilian system, and I am saying that that introduces a disparity or fracture of the United Kingdom service justice system. That is what the Government find unacceptable.

The noble Lord, Lord Burnett, raised an important point—

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour

If there is any technical difficulty regarding the extension of the jurisdiction to include Northern Ireland and Scotland, surely it would not be beyond the wit of the Government, if they accepted the principle of civilianisation, to deal with that matter in an appropriate way.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), The Minister of State, Ministry of Defence

I say to the noble and learned Lord that, as I understand it, the difficulty is that constitutionally we cannot extend this amendment to cover Scotland and Northern Ireland. That gets right to the heart of whether we have a service justice system for the United Kingdom, operating across it, or we do not. That is the difficulty with this amendment.

Turning to the point made by the noble Lord, Lord Burnett, on the Richard Henriques recommendations, I know he was particularly interested in a defence representation unit. In recognition of the remarks I made in Grand Committee when I undertook to keep the House informed of progress on these Henriques matters, I explained then and when the amendment was tabled on Report that we have to analyse and assess these recommendations. We are not yet sure how they could be implemented and what measures would be necessary to implement them, but I am very happy to repeat my assurance to the noble Lord that I will keep the Chamber informed of progress.

I can add very little more on this issue in Motion A1. The Government’s position is clear; I have explained why we hold it. I accept that a number of your Lordships disagree but, in support of what we are doing, I think the view of a former High Court judge such as Sir Richard Henriques ought to carry some weight and deserves some attention.

The noble Lord, Lord Coaker, raised the defence-wide strategy in respect of serious sexual crimes and offences. My colleague the Minister for Defence People and Veterans is taking that forward with purpose and resolve. I will find out the timetable and undertake to write to the noble Lord.

Returning to Motion B1 in the name of the noble and gallant Lord, Lord Craig, I thank noble Lords for their contributions. I remind the House that this issue was debated and decided authoritatively in the other place by a substantial majority, but I have endeavoured in my initial speech and my remarks just now to explain why we want the new covenant obligations. After all, what is currently happening in the Bill—improving the covenant and giving parts of it legal effect—is all down to the Government’s commitment to the covenant and desire to support our service personnel and veterans with reference, as I explained at an earlier stage of proceedings, to what our service personnel want. They are the people we have listened to and they identified the three specific functions in the Bill of housing, health and education. As I said, the covenant is not a legal obligation per se but a concept. That is why we have had to use a statutory measure to start applying it in a legal context to particular areas of public service delivery.

The reason why the Government do not wish to expand that at the moment is not due to some sinister, covert or malign purpose. We want to see how this works in practice—let the measures bed down, assess them and see how they work. Very importantly, if some feature is not working, we want to identify it and what we do about it. That is a sensible, practical way forward before proceeding with any further enlargement of the legal duty.

That is the Government’s position. I accept that a number of your Lordships do not agree with it, but that is why we are proceeding as we are. I think noble Lords would accept that, overall, the Armed Forces Bill is a very important measure, not just for the legal constitution of our Armed Forces before the end of this year but—

Photo of Lord Craig of Radley Lord Craig of Radley Crossbench 5:00, 8 December 2021

Before the Minister sits down, the big issue that came from this House is where local authorities cannot deal with the veteran issue. We produced some examples of that; it was not discussed at all in the other place. Could she explain why? This is not acceptable at this stage, bearing in mind that, in effect, it is already being carried out. I do not see why there should be any difficulty in incorporating the Secretary of State “having due regard” as the form of words, to show that it is a matter for central government. The veteran issue cannot be dealt with at local level.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), The Minister of State, Ministry of Defence

Central government, as I have indicated previously, is bound by a wide spectrum of obligations. Some of these obligations exist because of parliamentary and government obligations, some exist because the MoD is an employer of the Armed Forces, and some exist because, under the covenant—which is a concept, as I have said—we want to do the best we can.

What I did explain was that to make this work—I hope it is clear from the text of the Bill in relation to the three functions we have identified—you need to have an identified body and detailed functions. That is why the Government feel that it is premature to take this step at this time. I appreciate that the noble and gallant Lord disagrees with that interpretation. He feels that the Government should absolutely accept that they are bound under the covenant. I would say that they are bound under the covenant as a concept in terms of a moral responsibility, and they are certainly accountable not just to Parliament, as they rightly should be, but to their own Armed Forces and to their veterans, and to public opinion.

I have tried to explain why we feel that to take this step at this stage is both precipitate and premature. I appreciate that there is not agreement on that view, and that is what democracy exists to serve. But I have endeavoured to explain to your Lordships the position of the Government and why they hold to their views in these circumstances. Again, I respectfully ask the noble Lords to withdraw their Motions A1 and B1.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour

Before the Minister sits down—I hope she will forgive me—I asked specifically about the size of the sample for rape cases, an issue which my noble friend Lord Coaker also raised. The figures are quite different and much more encouraging than those given by Mr Johnny Mercer in the other place. Can the Minister tell me—I did give notice of this in the course of my short remarks—what is the size of the sample?

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), The Minister of State, Ministry of Defence

I have to say to the noble and learned Lord that I am afraid I do not have information available. I gave him the statistics provided to me, but I will undertake to ascertain that information and write to him.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General

My Lords, I will pursue that for a moment. The number of cases heard in courts martial is probably fewer than 10 for sexual offences, or at least fewer than 20. I cannot imagine that in six months, we deal with more than four or five cases, but no doubt we will be told in due course. Over a five-year period, the figure is 16% for convictions, as opposed to the civil conviction rate of 34%—shocking as that conviction rate is in any event.

On the point about Scotland and Northern Ireland—never raised before Monday night in the course of this Bill, either here or in the other place—the principle that this amendment sets down is quite simple:

“Guidance … must provide that where offences of murder, manslaughter, domestic violence, child abuse, rape or sexual assault with penetration are alleged to have been committed in the United Kingdom, any charges brought against a person subject to service law shall normally be tried in a civilian court”— it does not say “in the Crown Court” in this country—

“unless by reason of the circumstances … the Director of Public Prosecutions, after consultation with the Attorney General, directs trial by court martial.”

If it is necessary to cover that by putting “after consultation with the Lord Advocate in Scotland” or whoever is the chief authority in Northern Ireland, that can be done in 30 seconds—if you let me loose for that period of time.

No answer has been given, and we are faced with what Johnny Mercer said:

“there is one individual who is refusing to back down from the alleyway”.—[Official Report, Commons, 6/12/21; col. 105.]

This is not proper policy for the Conservative Party. It will face, as a party, the complaints of people who have been subjected to sexual violence but whose cases have not been upheld. It will arise, and it will be to the advantage of other parties. So, I plead that the amendment be supported in this case. I beg to move.

Ayes 205, Noes 183.

Division number 1 Armed Forces Bill - Commons Reasons — Motion A1 (as an amendment to Motion A)

Aye: 205 Members of the House of Lords

No: 183 Members of the House of Lords

Aye: A-Z by last name

No: A-Z by last name

Amendment A1 agreed.