I beg to move Amendment 9, in Clause 20, page 34, line 27, at end insert “or

(iii) a retired holder of such a rank.”

This amendment would add retired officers to those qualified for membership of the Court Martial.

With this it will be convenient to discuss Clause stand part.

I again place on record our thanks to you, Mr Efford, and to our excellent Clerks and the team who organised a very good visit down to Portsmouth, where I think we learned a lot about the operation of the service courts in practice—I certainly did. A number of issues were raised in that discussion, not least about the operation of juries in courts martial, and who serves on those jury panels, how they are selected and why. I will give two or three examples of the issues that came from that and then talk to the Amendment.

The current practice, when an officer is being tried for an offence, is that only officers may serve on a jury panel in a court martial. Some people raised questions with the briefers that day about why that should be, and it is an interesting issue. The book answer from the Department was that officers should be tried by a jury of their peers, and therefore it should be other officers who serve on that panel. There is an issue that follows from that about the rank of the officer being tried and the rank of the officers that then serve on the panel. We learned about a practical constraint, which is that if a relatively senior officer is being tried, let us say a colonel or above—to take an Army example—there is only a relatively small pool of people who could be trawled to sit on that panel to pass judgment on that officer.

In the civilian world, we would not have a system where, if a professor were being tried, only graduates could sit on the panel. The civilian system is that people are chosen entirely at random from the electoral roll and are asked to do jury service, which they are mandated to do, with certain exceptions set out in statute. In the civilian world, people are not tried by people of—how can I put it?—an equivalent educational or social status. As the saying used to be, it is a jury of 12 good men and true; now it is, rightly, a jury of good men and women and true who assess someone’s guilt or innocence. In the military, we still carry out the process in this ranked, structured way.

Let us say that we had a lance corporal who was being tried for being drunk and disorderly—perhaps he had got into a bar brawl after the end of an exercise; he had gone out at the weekend, had let off a bit of steam and this had led to him allegedly committing an offence. At present, as I understand it, only senior non-commissioned officers of the rank of the equivalent of colour sergeant or above could pass judgment on that lance corporal. That raises an interesting question: why should another corporal or lance corporal, who likes a night out on a Friday as well, not be allowed to serve on that panel? Why does it have to be a colour sergeant or equivalent?

Forgive me, Mr Efford, I am using Army ranks because that is what I am most familiar with from my service, but the point holds good across all the services. Why should only a colour sergeant or above be allowed to pass verdict on a lance corporal or even a private soldier? A number of such issues cropped up from our visit. Also, as in the old saying that the Minister reminded me of, time spent in reconnaissance is seldom wasted. This was a good example of that practice.

The amendment was drafted specifically to address one of those issues—the potential shortage of officers to serve on court martial panels, especially if a relatively senior officer is being tried, when by definition the pool of available serving officers to serve on a panel is limited. We have tried to come up with a practical suggestion, which is to use retired officers of equivalent rank. I am also interested to hear what other members of the Committee think of the wider issue, which is, does this have to be as hide-bound by rank as it is at the moment? I am interested in the Minister’s view as well, not least because he has been a commanding officer.

If we are to keep the system in essence as we have it at the moment, however, would it not make sense to be able to draw on a pool of retired officers of the required rank, who might have a little more time on their hands? We would not be taking anyone away from ongoing operations, and we could take time from their lives in order for them to continue to serve in a military context in the important task of administering service justice. That, in essence, is the intention of the amendment, but we also tabled it to provoke, I hope, a wider debate—I am looking at one or two Labour Back Benchers in particular, because they were vocal about this when we were in Portsmouth, so now is their chance—about why we do things in the way that we do them, and whether there is some potential for change, but if not, why not?

I hope that I have laid out the issue fairly clearly for the Committee.

I am grateful for the opportunity to speak in support of the Amendment, which was tabled in the name of His Majesty’s loyal Opposition, and to set out my broader support for Clause 20. I will begin with the clause itself, because it addresses the composition of the court martial. In such circumstances, it is right that we support the very sensible change that the clause sets out, with its underlying intent to ensure that the court martial is properly constituted and capable of commanding confidence across the armed forces and the wider public. Enlarging the pool of those who can sit on it is a welcome amendment.

Precisely because we support that principle, however, we also need to examine whether the system is fully equipped for the realities it faces. In that context, the amendment becomes not only relevant, but in my view increasingly necessary. The amendment proposes a simple change, as set out by my right hon. Friend, to include retired holders of the relevant rank among those qualified for membership of the court martial.

At first glance the amendment may appear relatively modest, but I suggest that, like many apparently modest changes in defence legislation, it subtly reflects something much more significant. It reflects a recognition of the demands placed on our armed forces justice system and how those are changing over time, and changing rapidly. We are operating in an era of increasing operational tempo—a phrase that is often used in defence debates, sometimes frequently.

Has the hon. Gentleman made any assessment of whether the capacity savings from serving officers not having to serve on the court—because under the Amendment they would be replaced by retired officers—are perhaps exceeded by the burden on the service justice system of having to track and maintain some kind of database of the retired officers that it would call on to serve?

The hon. Gentleman makes a helpful challenge. Clearly, there is no impact assessment with the Amendment. However, there is a joint service publication, the RARO—regular army reserve of officers—list, and there are those letters I receive annually asking me to update my address and contact details. There are already mechanisms by which individuals can be identified and recalled for this service. Given the operational tempo that I have described, it makes sense that we ameliorate the pressure on those who are currently in active service while not impacting the flow of justice through the service justice system.

In my experience, retired officers, particularly retired senior officers, are keenly aware of their pension entitlements. If we are paying them a pension through the armed forces pension scheme, we presumably know who they are and where they live. Via that database, it would not be particularly onerous to come up with a list of retired senior officers who could at least be invited. We are not suggesting that this should be mandatory, but we are suggesting that they may want the opportunity to serve. Via their pensions, we know where they are.

I am grateful to my right hon. Friend, who from his time as a Defence Minister knows well how to keep tabs on those who have served our country but are now retired. The pension scheme is an obvious way to do so. In addition, he makes an important point about the willingness of individuals to engage in the process. These are people who have given enormous service to their country, and often wish to continue giving service long into their years of retirement from active service.

Our armed forces are more stretched and more globally engaged than before, and they are more frequently deployed than at almost any point in recent decades. The spectrum of threats facing our country is widening, from state-based adversaries to hybrid war, cyber-operations and persistent instability in regions where British forces are called to act with precision and professionalism. As I have set out, when operational tempo increases every part of the system is affected. It is not just about equipment, logistics or personnel numbers, but about the justice system that underpins discipline, accountability and command authority.

The question, therefore, is a relatively simple one: does our current system of service justice have the flexibility, depth and resilience required to meet that demand? Amendment 9 is one attempt to ensure that it does. It recognises that we are asking a great deal of a relatively small pool of serving officers. We are asking them not only to command forces in complex environments but, where necessary, to sit in judgment in court martial proceedings, including in cases involving senior rank, complex evidence, and often significant reputational consequence for all involved. That is not to say that these individuals are incapable of doing those tasks, but that is a heavy burden on any system. It becomes more difficult still when we consider the practical realities of availability.

Senior serving officers are, by definition, in high demand. They are deployed, rotated, assigned to strategic planning roles or engaged in operational command responsibilities that cannot simply be paused or rescheduled. At the same time, the court martial system requires a bench that is credible, experienced and capable of understanding the realities of service life. It is not enough that those sitting in judgment are legally competent to interpret the evidence; they must also understand the context in which decisions are made, the pressures under which orders are given and the operational environments in which conduct is assessed.

That combination of legal competence and operational understanding is not easily found, and it is here that amendment 9 can make a tangible contribution. By extending eligibility to retired officers of appropriate rank, we end up expanding the pool of individuals who can bring that essential combination of experience and judgment to the court martial system.

I want to be clear about what the amendment seeks to do and what it does not seek to do. It is not an attempt to dilute standards. On the contrary, it is an attempt to strengthen them by widening the field of those who meet them. It is not an attempt to undermine the authority of serving officers; it is an attempt to relieve them of some of the competing pressures that now fall on them in an increasingly demanding environment. It is not an attempt to create a separate or parallel justice system where some are tried by those who are still in active service and some are held in judgment by those who have retired. It is merely an attempt to ensure that the existing system has the necessary capacity to function effectively.

Does the hon. Gentleman accept that the Majority of courts martial involve non-commissioned individuals? Although senior commissioned officers are subject to court martial at times, they are in the minority. The majority are non-commissioned officers.

I welcome the hon. Member’s Intervention. If he is suggesting that we should look at going wider than the confines of this specific Amendment, I would welcome that conversation. It is about increasing the flexibility and agility of the court martial system so that it reflects the challenges for those who currently serve in uniform.

Is the hon. Gentleman talking about a lack of capacity of senior officers to sit on a court martial board, or inefficiency on the court martial board?

The Minister is right to challenge me on the case that I am making. It is about competing challenges facing those in senior rank in the armed forces. My right hon. Friend the Member for Rayleigh and Wickford gave the example of colonels or above. We have heard of very senior officers being brought before a court martial in cases that may involve, for instance, continuity of education allowance. These are senior individuals who then take out other senior individuals. They are often in a fairly small pool and have perhaps worked closely with one another during their service, but they also have increasing demands, given the global instability that we are currently facing.

It therefore makes logical sense to widen that pool and take the pressure off the shoulders of those who have operational responsibilities by allowing those who have served in the past, and hold those ranks by virtue of their service, to sit within the court martial system and increase capacity. I am not suggesting that there is an inefficiency in the service—everybody involved is doing the best job they can. It is about flexing resources so that they are used most appropriately to deliver the outcomes that we need not only from a national security and defence perspective, but to maintain the integrity and speed with which service justice is administered.

There is also a broader strategic point that we must not overlook, and it touches on the Minister’s point. We often speak about the importance of a whole-force concept and the idea that national defence is about not simply those currently in uniform but a wider ecosystem of reserve capability, which we will come on to later. It is also about veterans, institutional memory and those who can bring expertise from their time in service. We are, quite rightly, investing in the reserve forces. We are also increasingly recognising the value of civilian expertise in a variety of fields, such as cyber-intelligence or technology. In many respects, we are trying to build a much more flexible and adaptive defence structure, and yet, when it comes to the service justice system, we have not always applied the same logic with equal measure or consistency. We have in effect treated participation as something that must be narrowly confined to serving personnel, even when highly experienced retired officers could make a valuable contribution.

I understand the instinct behind that. There is a desire to maintain a close connection between those who are sitting in judgment and those who are currently serving. I think that is a legitimate concern, but I suggest that it does not undermine that principle if we include retired officers, provided that appropriate safeguards are in place in terms of eligibility, perhaps recency of service and of course suitability. I draw parallels with the point I made about there being a relatively small pool of individuals and the proximity of relationships that may exist. I think that, in some respects, increasing that pool by extending it to those who have served but are no longer in active service enhances the system’s legitimacy.

I say that because one challenge sometimes faced by the armed forces justice system is not necessarily a lack of expertise, but a lack of availability of individuals at the precise moment when that expertise is required. The danger of that, and something that I suspect we would all agree we want to avoid, is that it creates delays. It can create scheduling and listing difficulties; and in some cases it puts an enormous strain, as I have said, on those who have served. We have to be absolutely candid. Justice delayed is not just justice denied in the civilian context. In the military context, that can cause much wider issues in terms of morale, discipline and operational focus.

I feel that the hon. Member is perhaps trying to fix something that is not broken. In the evidence we heard about the service justice system, was there anything that implied that there was a large-scale problem with delays and scheduling? I ask because I thought I was hearing about a system that was relatively efficient and speedy compared with the delays that we all know are afflicting the civilian justice system. There was just one instance—I think it was of a general who had done something inappropriate regarding funding for school fees. It was almost a sui generis incident where it had been difficult to put together a board. Will the hon. Gentleman accept that there is some danger that the Amendment is attempting to fix something that is not broken in a system that is actually working rather well?

Order. I gently remind hon. Members that interventions should be slightly shorter than that.

I fear that recollections may differ. My interpretation of the evidence that we heard is not that this is a failing system—far from it. I gently suggest to the hon. Member that the civilian Crown courts and magistrates courts may not be the best benchmark against which to compare its performance.

There is a wider issue, which the hon. Gentleman has touched on: this should not be merely about fixing a problem that exists now. There should be some horizon-scanning for the emerging challenges for the armed forces, not only in the present day but in the years ahead, and safety-proofing of the system against those challenges. That is the specific intent behind the Amendment.

My right hon. Friend the Member for Rayleigh and Wickford and I have spent time making the argument about the more senior pool of officers. That is a fair position to take, because they will be under much greater demands, with extensive challenges. Given the threat levels we face—there was a statement in the main Chamber yesterday about events in the middle east—we are living in a much more unstable world, with much greater demands on our armed forces. One can foresee increasing difficulty in constituting panels for cases, particularly those involving senior officers. It would be a dereliction of duty if, instead of planning for those threats and the challenges that they might pose to our armed forces, the Committee and the House more widely sought only to react to them in future. It is always better to do things proactively in a calm manner and think about the implications, rather than doing things retrospectively and hurriedly because an issue has arisen.

I will dwell a little more on cases involving the higher ranks. When they do arise, it is often necessary for the panel to include officers of either equivalent or higher rank, but the pool of serving officers is by definition limited. As I hope I have described, that can create genuine operational and logistical difficulties in assembling boards that are both appropriately constituted, given the demands on their make-up, and able to proceed without undue delay. Retired officers of the relevant rank represent an obvious and sensible extension of the pool that would help us to proof the system. They would bring not only rank equivalence, but often a broader perspective. Having stepped back from the pressures of immediate command, they might bring a degree of reflective judgment that is particularly valuable in the complex and sensitive cases that invariably involve more senior officers, by virtue of the nature of the offences of which they are accused.

I speak as someone who has developed a healthy respect over the years for the ability of retired officers to express opinions with a greater level of clarity than they may have done in post. That brings a refreshing breadth to the system. There is something about leaving service—I certainly found this myself—that appears to improve one’s ability to identify precisely what everyone else should have done differently. Stepping away from the pressures and challenges of day-to-day service life enables individuals to take a wider and more holistic approach.

I am mindful of the fact that I am probably trying your patience, Mr Efford, so I will wind up shortly. I do not pretend that amendment 9 is perfect in every detail. The hon. Member for South Ribble provided a helpful challenge in relation to whether its scope should be wider. There are certainly questions about eligibility criteria and the mechanism for appointment, although I think that there is an obvious mechanism for identifying potential appointees. Those questions will need careful consideration, but that is not a particularly unusual position to be in at this stage of the legislative process. The purpose of Committee is not necessarily to produce final answers, but to test the direction of travel. I think the direction of travel is sound when it comes to ensuring that the system is foolproof.

This is about the resilience of our justice system and about making better use of experience that already exists in our wider armed forces community. It is about ensuring that the demands of the increasing operational tempo are not inadvertently creating bottlenecks in the very system designed to uphold discipline and fairness. Ultimately, that is the balance that we are trying to strike: on the one hand we want armed forces that are operationally effective, globally deployable and able to meet the demands of a more dangerous and uncertain world, but on the other hand we want a service justice system that is robust, timely and capable of functioning without becoming a constraint on our operational effectiveness. Those two objectives should not be in tension. We need to think carefully about how we design institutions that can support them both.

Clause 20 is an important part of that architecture: it will ensure that the court martial remains properly constituted and legally sound. Amendment 9 would strengthen that approach by ensuring that it remains practically workable under conditions of increasing demand. I urge the Government to accept the amendment, because I suspect that as operational pressures continue to rise and as we ask more of our armed forces across multiple domains, the need for flexibility in our service justice system will only become more rather than less pressing. If we get it right now, we will not only improve efficiency and effectiveness, but strengthen confidence in the system. That is ultimately what we should be trying to achieve in the Bill.

It is important that we take on board the evidence from our visits. Otherwise, what is the point of going on them? That point was brought up when we debated a previous Amendment, with reference to the use of the civilian or military justice system.

The hon. and gallant Member for Solihull West and Shirley made an excellent speech about using retired officers. We heard from those who are recruiting that there are delays. We heard during a visit that a senior officer had struggled to find a panel, and the process had been delayed because permission from the then Secretary of State was needed to use an officer of a lower rank. We also heard that it would be much easier to find officers. It is difficult to find officers of an equivalent rank, particularly among the higher ranks, who have not served or trained together or do not know each other, and to be sure that they do not have any relevant interest in protecting someone or perverting the course of justice. The right hon. Member for Rayleigh and Wickford also made a good point about who constitutes the panel. I support amendment 9, because what is the point of our going on visits if we do not act on what we have been told is an issue?

We also heard a point that has not been mentioned today, which is that those in the non-commissioned ranks, such as warrant officers who have 25 or 30 years’ experience in the job, could also sit on the panels. It is not addressed in the amendment, but we heard evidence that those with years of military service and a lot of experience could be used on the panels too.

I will add to the arguments of my hon. Friend the Member for Solihull West and Shirley, my right hon. Friend the Member for Rayleigh and Wickford and the hon. Member for North Devon.

The Opposition’s recollections align very closely with those of our Liberal Democrat colleague. Although we did not hear about a system that is breaking, we definitely heard about a system that is under strain. If memory serves—please correct me if I am wrong—we were shown a really good presentation by the people we visited in Portsmouth that demonstrated how the service courts have expanded. We had just a few men before; more rules and regulations have now been introduced, and thankfully women are being included, but extra bureaucracy has been added to the system. As the hon. Member for North Devon articulated, being more senior and not knowing people you have served with from other units is for the birds. We are going to end up with bottlenecks.

As my hon. Friend the Member for Solihull West and Shirley laid out very clearly, it is easy to conceptualise a military with significant numbers, but at the moment we do not have that. Instead, we have a military that has become more specialised. We have heard about the changing nature of warfare and skillsets, including cyber. As people become more senior, those skillsets become more specialised. As a case study, let us imagine a senior female officer in a specialised job, who may have worked in a few different units. It would be very difficult to put that person in a service justice courtroom and allow her to sit on a panel without her knowing other people. The pool would be very small.

We have these bottlenecks in the system, and they have to be identified. That aligns with the fact that operational tempo is increasing because of the conflicts in the middle east and issues in the north Atlantic that we discussed in the House yesterday, as well as all the other jobs that our armed forces are asked to do. We have a smaller, specialised pool of people, at a time when operational tempo is increasing.

The Opposition want to work with the Government to make the Bill stronger. We are finding practical solutions, as has been clearly identified in the arguments that hon. Members have laid out, and we are bringing in the evidence that we heard on our visits. This is an attempt not to civilianise the court martial process, but to augment what is already there. It reinforces the principle that those who are judging service personnel should themselves have served and should understand the realities of military life.

With operational tempo increasing as a result of international volatility, if we look back at the strategic defence review and the whole-of-society approach, it is valuable to have a natural conversation about drawing people and their skillsets back into service life. Retired officers meet the test in full. In one respect, they offer an additional advantage: they are completely independent, they are not in the chain of command and they have not worked with or heard of the people who are going through these processes. They are no longer subject to promotion considerations, reporting structures or chain-of-command relationships that might create even a perceived pressure on their judgment—I am not saying that there is such a pressure, but some serving people might have it at the back of their mind. Their independence should be seen as an asset.

There is also a clear and practical need in the most senior cases, as has been highlighted by the hon. Member for North Durham, for the framework to be robust in its own right, rather than being reliant on chance. I think the Amendment would achieve that. It would enlarge the available pool, strengthen independence and help to ensure that accountability at the highest levels is meaningful not only in principle, but in practice.

If there is one phrase my father always says to me, it is “Sarah, you can’t teach experience.” We have talked about bringing retired officers back into the justice system; this is a very good example of what we can do to call on their experience. With jury service and jury trials, we try to get a range of experience from all types of peers. I know that there is an argument to say, “If it ain’t broke, don’t fix it,” but we want to streamline and enhance our justice system to make it as effective as possible. I support Amendment 9.

I thank the right hon. Member for Rayleigh and Wickford for tabling Amendment 9, which seeks to add retired officers to those who are qualified for court martial membership. However, I believe that the amendment is unnecessary and most likely counterproductive.

The first argument made was about capacity and the lack of senior officers to sit on courts martial and hold people to account. As the Committee knows, we keep those things under constant review. The right hon. Member mentioned a case from several years ago that highlighted a lack of capacity to charge senior members. We pushed through secondary legislation in 2024 to amend two of the armed forces court martial rules so that if a defendant was at one star or above, the president of the board would be at one-star level; they did not need to be of higher rank. That was a significant change.

As for lack of capacity, I will throw out a question to the Committee: how many one-stars do we have in the military? We actually have 200 one-stars—let that sink in—and that does not include the reserves. There is no capacity issue here.

Secondly, the amendment could be counterproductive, because it is vital that the board members have up-to-date knowledge and real-time experience of the latest single-service policies. I say that from experience, because sentencing at court martial fulfils a number of purposes, including punishment, maintenance, discipline and deterrence.

The Minister mentions that there are 200 officers at one star and above. Does he have the facts on how many of those 200 one-stars do not know one another?

As the hon. Member will know, trying to speak to people about whether they know other people is exceptionally difficult. Trying to capture that in a data record would be even more difficult. The 200 officers in service at the moment do not include the reservist pool, which is quite large—and that is just one-stars, not two-stars, three-stars or four-stars, so the pool is actually far larger.

I will go back to the purpose of sentencing at court martial, because it is an important point. As I say, it includes punishment, maintenance, discipline and deterrence. It must also take into account the best interests of the service and the maintenance of operational effectiveness. I completely agree that experience cannot be taught, but sometimes experience can wane over time. An appreciation of the relevant factors comes with experience, but also with the responsibilities of rank, as the veterans community will understand, and with the exercise of leadership and command over others. In some cases, that will not come with the most up-to-date operational context, which could cause an issue on the court martial board.

We want to strengthen the Bill by working with the Government and taking a collaborative approach. Having a shared reality, in any aspect of life, is massively important. Among Opposition Members, there is alignment on the shared reality that we heard about, when we went down to Portsmouth, from the people we empower to run the service justice system. Does the Minister know of any of the cracks or weaknesses, as we heard about on our visit? Does he acknowledge that there may be issues to address?

Listening to evidence and acting on it is critical. Understanding the context in which it sits is equally important. Did that individual know that there are 200 one-stars within defence? Did they have the authority and responsibility to allocate individuals in a short, timely and effective manner to a court martial board? Probably not. The problem is not capacity. It is perhaps that the Defence Serious Crime Command needs greater authorities and programming to pool individuals in a timely and effective manner to sit on a court martial board and deliver justice.

This is not a criticism of the Minister, because no doubt he had other important things to do, but he was not on that visit, as I recall. As Her late Majesty once said, recollections may vary, but this was a point raised with us by the people presenting to us on the operation of the system. We did not invent it. They made the point quite strongly that, for instance, if people had been on staff courses together—let us say that they had done the Royal College of Defence Studies course for a year together—that would sometimes rule them out. I must make the point to the Minister that we have not fabricated this; it is a problem that was raised with us by the experts who actually deal with the process day to day.

In no way, shape or form am I suggesting that this was fabricated, made up or a lie. What I am trying to say is that context is important. The statistics show that there are 200 one-stars in regular service, not including the reserve. That is a large pool of individuals, which reduces the right hon. Member’s argument about capacity. He talked about people knowing each other, but there are clear protocols in place to ensure that when the board is pulled together, the range of individuals on it is as broad as it is wide, and that there is at least one woman and one man on it. I think that that is adequate. The 2024 secondary legislation that amended the rules was brought in specifically in response to the case that was mentioned during the Committee’s visit—

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Two o’clock.