House of Lords
Tuesday 7 September 2021
Prayers—read by the Lord Bishop of Oxford.
The Government are deeply concerned about the findings of the IPCC’s latest report, which shows that there is no doubt that human activity has changed the climate. The report is a further warning of the need for urgent global action to reduce greenhouse gas emissions over the next decade and reach net zero around 2050. This reinforces the importance of achieving the Government’s COP 26 objectives and the necessity of a UK transition to net zero.
I thank the Minister for his Answer. Bearing in mind that he has indicated the Government’s concerns around the findings in the report, what new governmental, governance and statutory measures will the Government bring forward, in terms of amendments to the Environment Bill on Report and other means, to deliver on climate change and greenhouse-gas reductions? What plans will therefore be brought to COP 26 in Glasgow later this year, outlining that necessary climate-change stabilisation scheme?
I totally understand the noble Baroness’s point, but of course we have already legislated for the greenhouse-gas emissions, as covered by the Climate Change Act. It is therefore our position that we do not need to cover any further measures within the Environment Bill, as it is at the moment. Before COP, we will publish our net-zero strategy to set out our plans to meet these ambitious targets, and we have also engaged regularly with devolved Administrations.
My Lords, we all agree, I am sure, that the climate emergency is an immensely complex subject with many different facets. There is an urgent need and responsibility to educate and engage the public in responsible ways on the urgent priority of public and private action. Does the Minister agree that investment and a serious programme of public engagement are needed to combat climate change deniers, climate change delayers and those who say that there is no hope and nothing can be done? What are the Government’s plans for this?
The right reverend Prelate makes some good points, and of course tackling climate change must be a shared endeavour. Our ambition puts affordability and fairness at the heart of our efforts, and that goes hand in hand with supporting economic growth and prosperity. We support a number of campaigns to do exactly that, such as the Simple Energy Advice campaign and Together for Our Planet.
I congratulate the intergovernmental panel on a serious and thorough piece of work and the action that our own Government are taking. How confident is my noble friend that countries, such as India and China, that are not yet doing enough will actually step up to the plate on the basis of the scientific evidence before us today?
That is the £6 billion CO2 question, in that we will have to wait and see. A tremendous amount of diplomacy is going on. My right honourable friend Alok Sharma, the COP president, is obviously engaging extensively, and we hope that they will publish realistic NDCs before COP.
My Lords, the UK still has no fully costed plan to reach net zero. The Office for Budget Responsibility has made it clear that the cost of delaying will increase dramatically the longer we do so, and then we will not get the benefits of a more sustainable society and a greener economy. This vacuum of clear policies is now giving space to those who have vested interests in delaying and continuing subsidies for polluting fossil fuels—so can the Minister give the House assurances that he will act swiftly to address this misinformation and ensure that, in the forthcoming spending review, there are long-term investment commitments that take full account of all these costs and benefits?
We are certainly committed to action. We have published a number of strategies—the hydrogen strategy and the transport decarbonisation strategy—and the net-zero strategy will be published before COP. The noble Baroness will understand that I cannot give commitments for the Chancellor in the spending review.
In the face of the IPCC red card to all of us, will the UK Government commit to a faster date than 2050 for achieving net zero and more ambitious targets than the emissions reductions of 68% by 2030 and 78% by 2035? The IPCC report definitely pointed those out as needed.
My Lords, a year ago when I asked the Minister whether it was not about time that the Government had a credible short-term action plan to tackle the climate emergency, he replied:
“Indeed, and we will be setting this out in due course.”—[Official Report, 6/10/20; col. 517.]
In light of the IPCC report, which makes it clear that global warming of between 1.5 and 2 degrees will be exceeded this century without drastic cuts in emissions, when can we expect to see that credible short-term action plan? I emphasise “credible”.
As I said in response to the previous question, we have published a number of our strategies. The heat and buildings strategy is to be published shortly; the net-zero strategy will be published before COP. We need to set an example, and we intend to do just that. These are difficult decisions involving a lot of different players within government, but we will endeavour to do so as quickly as possible.
Yes, our assessment is that it is still possible by the end of the century, but only with immediate and significant reductions in global emissions over the next decade and net zero by around 2050. It would be a challenge, but given concerted action across the world, we could still do it.
The IPCC report underlines the statistical proof of man’s footprint across the globe and that climate breakdown is already well under way and accelerating, with ocean acidification and glacier meltdown baked in for centuries to come. Does the Minister agree that the biggest threat that the world now faces is not climate denial but climate dither and delay? Will the Government now revise their NDC pledge to cut carbon emissions, on which my noble friend Lady Young sought clarification, and bring forward a more ambitious programme for action before COP 26?
As I said in response to a previous question, I admire the ambition of the noble Lord and his noble friend, but we have already achieved more than the vast majority of countries in the world. We have one of the most ambitious policies and one of the most ambitious reduction targets. We have made some of the fastest progress among all the G7 countries. Of course, it is right for the Opposition to keep pushing us to go further and faster, but we have done a lot.
My Lords, if anybody still has any doubts about the scale of the climate crisis, this report must surely put those to bed. As president of the CBI, I am very proud that one-third of the largest businesses in the UK with a market cap totalling £650 billion have already committed to net zero by 2050, but does the Minister agree that, although the UK’s 10-point plan is ambitious, we need to see more detail and clear timeframes for delivery?
Indeed. I can agree with the noble Lord on the first part of his question. It has been encouraging to see the number of major businesses that have joined us in the race to net zero. I pay tribute to the work of the CBI in helping us to do that. But we have already set a number of quite ambitious targets. We have legislated in this House for the carbon budgets, and we will produce the net zero strategy before COP, which will see further progress.
My Lords, as the European continent in the Middle Ages warmed up by 1.5 degrees centigrade and then reverted to normal temperature after a century, can the Minister tell the House of two scientific facts that show that we can stop or reverse climate change?
The noble Lord invites me to indulge in a long debate about the validity or otherwise of the various reports and the IPCC report. Perhaps we could discuss it separately outside. However, the IPCC report was a major piece of work taking on board many of the assessments from world-leading scientists, and we would do well to take it seriously.
The noble Baroness raises a valid point, because the effects of climate change include rising sea levels, but they are consolidated, considered and adapted throughout the lifetime of nuclear power stations. As the noble Baroness is of course aware, we have a robust regulatory framework. Planning permissions and environmental permit requirements mean that no site can be built or developed unless all these factors are taken fully into account.
Afghanistan: Women and Girls
My Lords, we are deeply concerned by reports of serious human rights violations and abuses, as well as a reduction in rights and access to services and public spaces for Afghan women and girls. On 18 August, the Prime Minister announced a bespoke resettlement scheme focusing on the most vulnerable, particularly women and children. The United Kingdom will continue to work with international partners to press any future Afghan Government to adhere to international obligations, including safeguarding human rights.
My Lords, we share the same concern. I pay tribute to the brave women of Afghanistan, including those who have protested for the right to work and an education and have been met by violence. Before the Taliban took over, 3.6 million girls were going to school, in many of whom and their futures we invested. The Taliban spokesmen say that girls can go to school, but in many areas they allow them to do so only up to grade 6 and in other areas not at all. The chasm between the statements and what is happening on the ground is wide, so how will we ensure the safe passage to the UK for women who have worked on rights and education and who are still in hiding, including former Chevening scholars? Many women were identified as being at risk, but how and when will they get out, including members of the young women’s orchestra?
My Lords, I agree with the noble Baroness, and I am sure I speak for all noble Lords in paying tribute to those brave women. We have managed to ensure that many women have been part of our evacuation programme, but many remain, including the girls’ orchestra, which I know well, and I will continue to work with all noble Lords on facilitating the safe passage of those particularly courageous women in Afghanistan.
My Lords, can we hear some more specific detail on how we are going to provide support to the women human rights defenders who are at such high risk? Are we helping, for example, with targeted documentation, advice on safe routes, specific support at the border and extraction to the UK?
My Lords, I can assure my noble friend that we are working on all the particulars that she mentioned. I have travelled to the region with my right honourable friend the Foreign Secretary to look at the issue of borders. The other matters that she mentioned are getting our full attention.
My Lords, a number of Arab countries already encourage the participation of women in the economy as a whole, and in business. Is the FCDO doing enough in preparing for its future relations with the Taliban to work closely with those countries?
My Lords, I assure the noble Earl that we are doing just that. Sir Simon Gass and Martin Longden are in Qatar, in our temporary embassy to Afghanistan. From an operational standpoint, we are working with the Taliban to ensure safe passage—but also, importantly, to make sure that they uphold the guarantees they have given.
My Lords, does the Minister agree that the voluntary sector plays a huge part in promoting women’s rights across the world, including in Afghanistan? Does he also agree that reproductive health rights are important to promoting women’s freedom? What proportion of the Government’s new and welcome increase in humanitarian aid for Afghanistan will go to support those brave organisations and women who are defending and promoting human rights and, especially, women’s reproductive rights?
My Lords, I thank the Minister for his readiness at any time of day or night to receive details of those who have been made very vulnerable in this situation and to do what he could to help them. However, all the cases that I have referred to him, including the woman MP, are still in hiding, even those with permission to settle here. Since the bomb went off at the gates of the airport, the Government went silent in relation to them, and with them. What will be done to help them and how will they be reassured in this terribly dangerous circumstance?
My Lords, in thanking her for her work on this issue as well, I assure the noble Baroness that for those who received a letter under the ARAP scheme, or those called forward under the leave outside the rules, that letter will continue to act as a prioritisation. All those under the ARAP scheme will be guaranteed access. The issue remains in-country, and with safe passage, and I assure the noble Baroness that we are working on channels to ensure that we can guarantee safe passage through the country as well.
On that question of safe passage, yesterday the Foreign Secretary acknowledged the vulnerability of the LGBT community in Afghanistan. Of course, he said that he was talking to the Home Secretary about how the resettlement scheme will address that issue but, as the Minister is aware, safe passage to countries that are also a hostile environment for the LGBT community is extremely difficult. How is the department addressing this issue and ensuring that the LGBT community can get safe passage to safe countries?
My Lords, I totally understand the point that the noble Lord raises. He and I have discussed this matter, and I shall continue to work directly with him and other colleagues, because it is important that we encompass all expertise to ensure safe passage for all vulnerable minorities, including the LGBT community.
My Lords, as the Taliban consolidate their power, we see them making promises to western media and western Governments. Considering that the civic space in Afghanistan has been shut down, that journalists, reporters and NGOs have dispersed, and that 36 million live in Afghanistan, many of whom are women, does the Minister agree with me that an international UN-mandated mechanism must be established so that the Taliban know that someone is watching and documenting this, and that promises made are promises kept?
My Lords, my noble friend rightly points out a particular issue. What the Taliban desire the most is international recognition; that is why it was right that we worked with France to ensure the UN Security Council resolution, so they are basically held to account for the promises they have made. I assure her that we are working directly with UN agencies on that very issue.
My Lords, many valid concerns have been raised, but does the Minister agree with me that a note of caution is also necessary? The Government’s pressure on the Taliban to allow all those who wish to do so to leave the country could lead to a massive outflow. Indeed, the numbers could run into millions, as they have in the past. Meanwhile, the EU and Turkey are effectively closing their borders. Will the Government focus on those for whom we have a direct responsibility as employers, and will they stick to the limit that they have announced for 20,000 over five years for any other applicants?
I assure the noble Lord that we are focused very much on the priority of those who work directly with us. Of course, there are people within Afghanistan who are British nationals or are their dependants and those special cases—and that is where the Government’s priority is.
My Lords, on specific actions, on 17 August, Gender Action for Peace and Security wrote to Boris Johnson and to senior members of the Cabinet about the imminent danger and serious risk of violence that Afghan women are facing, especially those who, at our urging, engaged in peace processes or in journalism or delivered programmes to meet women’s needs. I am sure that the Minister is aware of that letter—in fact, I know that he is—and he almost certainly agrees with the actions that it urges on the Government. Which of those actions have been advanced in the three weeks since it was received?
I assure the noble Lord that we are working on the specifics of what was proposed, and from other groups as well. I know the organisation very well, and in coming weeks I shall certainly look to meet colleagues in the organisation directly to discuss actions further.
My Lords, will the Minister tell the House what support and advice is being given to vulnerable women who could be eligible to come to the UK under the ARAP scheme but have not yet been called forward and do not have a male guardian? They are, perhaps, among the most vulnerable, and advice would be most welcome.
If we were to identify such individuals, with all sensitivities considered, we would see what support could be offered. The noble Baroness points to a very vulnerable category; I agree with her, and we continue to work with all channels, including international partners, to reach that particular group.
My Lords, overseas aid is an important part of our package, but the Taliban must live up to their promises, and no aid will be directed through those channels. We need to work with agencies on the ground to ensure that those who most need the aid receive it.
My Lords, all supplementary questions have been asked, and we now move to the next Question.
My Lords, the Government have not set out plans to amend competition law. However, we are committed to legislating to protect access to cash. The Government are consulting on legislative proposals to protect access to cash withdrawal and deposit facilities. Together with this, the Bank of England has brought together industry to design a new model for wholesale cash distribution. The Government will explore how they can best enable and support an efficient, sustainable and resilient model.
My Lords, in answer to a Question on 19 July this year, the noble Baroness, Lady Penn, stated that
“industry is best placed to develop the most efficient and sustainable solutions for access to cash”.—[Official Report, 19/7/21; col. 3.]
If that is the case, can the Minister explain why 8,000 ATMs—13% of the total—have disappeared in the past 18 months, making access to cash even more difficult?
To reassure the noble Baroness, there are still some 40,000 ATMs in the country at the last count, and we remain committed to supporting their continuation. Link, the payment services provider for cash machines, has restated that a number of times. The other side of the coin is that the percentage of transactions using cash has declined dramatically; it was 56% of all transactions in 2010, and is now down to 17%. The usage is declining, which is why some of these facilities are going.
My Lords, post offices are highly valued by the communities they serve. Will the Government consider committing to the Post Office’s future by developing it as “The People’s Bank”, providing cash withdrawal facilities in the communities that need them?
My Lords, the Post Office plays a vital role in supporting payments across the system. There are some 11,000 post offices, and some 95% of business customers and 99% of personal banking customers are able to deposit cheques, check their balances and withdraw and deposit cash. The banking framework allows banking via post offices.
My Lords, the Minister’s answers seem to me to fail to sense the problem for minorities and people who are poor. My real concern about access to cash is how poor people will manage. For poor people, frequently cash is the only way they can budget—they are not up to systems and that sort of thing. There are not many of them, but society must be responsible for them. I have read the document on this that the Treasury has pushed out; it seems pretty reasonable when you read it, but the key issue is the charging. The system is losing free-to-use cash machines. To us, the charges look trivial, but when you are taking small amounts of cash out, proportionately they are eye-watering. Will the Government insist that the free-to-use network is maintained and possibly enhanced?
My Lords, to reiterate my earlier point, there are some 40,000 cash machines that are free at the point of use; they are sustained through an interconnection charge between the banks. As for what the Government are doing, in the Financial Services Act of this year we legislated to allow cashback without purchases. That became law in June this year, and it is something where everyone’s interests are aligned: the retailer gets the opportunity to increase footfall into their shops and to reduce the cost of having to bank cash, which is expensive. We are optimistic that this will provide a wide range of additional outlets for cash.
I declare my interest as an independent non-executive director of Link. What are the Government’s plans to ensure that an effective hub network of physical access to financial services is maintained right across the country in the future? Amid the increasing tension that exists between banks, post offices, the banks’ attempts at hub pilots and local shop services such as cashback, what are the Government doing to co-ordinate the picture to ensure we have free access to cash?
My Lords, the Government welcome industry efforts to develop solutions to provide continued access to financial services. The community access to cash pilots are an industry-led initiative, taking place in eight locations in the UK at the moment. These are trialling and testing sustainable solutions for ensuring that communities can conveniently withdraw and deposit cash. The Government’s proposals for cash will enable firms to use a range of solutions, including existing facilities, to provide access to cash for the purpose of meeting geographic requirements, provided they are judged to be delivering reasonable access by the responsible regulator.
My Lords, I accept that change will come but it is vital we protect those who rely on cash. It is people on tight budgets, but it goes beyond that: it is also people who are cared for in their own home, with carers who do the shopping. I declare an interest: I was shielding for months last year. Three people were doing the shopping, with cash provided sometimes before the shopping and at other times after. What was I supposed to do? Cash was absolutely vital for those transactions. You cannot give a cheque or give your plastic cards out, so the idea that it affects only a few people, and that change is on the way in digital, is nonsense—we are going to be a cash society for a long time to come.
My Lords, in July I asked whether unbanked pensioners could be issued with debit cards, topped up with their monthly pensions, which they could use in shops—a facility already available to universal credit claimants. I was told that this service was widely available, but when I asked the DWP it told me that only 350 pensioners have these cards. As more and more retailers refuse to accept cash, should not more unbanked pensioners be issued with these cards?
As my noble friend is aware, the DWP payment policy is to pay benefits and pensions into a standard bank, building society or credit union. The DWP encourages customers to provide standard bank account details, to give them greater choice in where and how they collect their money. Customers who receive their payment into an account of their choice are financially included and can benefit from a wide range of financial services, such as direct debits. A standard account allows customers to access cash payments via post offices, as I mentioned in a reply to an earlier question. The DWP payment exception service is a small-scale scheme where vouchers are uploaded to a card or sent electronically by SMS or email. It is available to that small minority of claimants who cannot open or use a standard bank account. It is not a prepaid card and cannot be used to purchase goods and services.
My Lords, the Minister knows that the ending of the Post Office card account, with the Government refusing to renew the contract, is going to really hit those very poorest pensioners who depend on that cash—that is practically all they have to take out each week. Week after week they are now getting letters telling them they must get a bank account or some other kind of digital banking. Why will the Government not accept that the Post Office card account should be retained to help those very poorest pensioners who rely on it, without the bureaucracy of a bank?
I congratulate my noble friend on the work he is doing in this regard, but surely we should keep from retailers the costs from the banks themselves for handling cash, which seem to be an impediment. Does my noble friend agree that there is still some reluctance, following the Covid crisis, about handling cash? Is anything being done to reassure the public that it is safe to handle cash?
My Lords, the time allowed for this Question has elapsed.
Railways: Bridge Strikes
My Lords, reducing bridge strikes involves interventions from the owners of bridges—usually Network Rail—highways authorities and the owners and operators of vehicles. Network Rail raises driver awareness and offers advice on avoiding low bridges. It has published Prevention of Bridge Strikes: A Good Practice Guide on GOV.UK.
I am grateful to the noble Baroness for that Answer and I commend the work that Network Rail has done, but my Question arises from an incident in Plymouth, on bank holiday Monday, which closed the west of England line for three days and affected tens of thousands of passengers, when a Tesco lorry hit a bridge. According to Network Rail, 43% of drivers do not know the height of their lorries. That is pretty frightening. According to Network Rail again, there are something like five bridge bashes every day, and clearly there will be occasions when there could be very serious accidents. Will the Minister, in addition to supporting Network Rail’s work, encourage it to claim all the costs from every bridge bash, including the cost of delays to trains, the cost of rebuilding and of course the cost of the delays to passengers? At the moment, it is costing the taxpayer £23 million a year, which seems rather a lot of money.
I am not wholly sure where the noble Lord got the figure of £23 million a year, but I would point out that costs are not necessarily met by the taxpayer; it depends on the circumstances. If liability rests with a vehicle driver, the costs will be recovered through insurance, and Network Rail has been successful in recovering large amounts for both infrastructure repair and compensation in the past.
The Road Haulage Association promotes the use of specialised lorry satellite navigation devices, which give bridge heights. Do the Government plan to take any steps to help promote their use more widely, or even make it a requirement that they be fitted and used in a similar way to tachographs? If they do not do so already, could such devices not also be adapted to give a warning to drivers approaching bridges that are lower than the height of their truck and trailer?
I agree with the noble Lord that technology will provide at least some of the answers to the problems we currently face. As he will know, Network Rail often installs special technology on some of the more bashed bridges that measures the height of the approaching vehicle and then flashes up “Turn Back” signs. Of course, we are very happy to work with the freight associations—and indeed we do—on ensuring that HGV drivers are fully aware of the technology available to them both in their cab and on the roads.
My Lords, without the quick-acting response of a local resident calling the emergency phone number by the bridge in Plymouth in the incident referred to earlier, a high-speed derailment was highly likely. I went to visit the site the day after it happened. As Plymouth had just had a very severe event associated with a fire alarm, I am delighted that nobody was hurt in this incident. However, there must be more that we can do. The south-west rail network has been significantly under-invested in; there are only two lines, one going one way and one the other, from Plymouth to Cornwall. This results in overcrowded trains, resulting—particularly with Covid—in the risk of cross-infection, as we have recently seen in Devon and Cornwall. So I ask the Minister not only about the safety of bridges but about safe and sufficient trains.
The noble Baroness has taken the Question a little more broadly than the brief, and I am afraid I will not be able to comment on the capacity of trains in the south-west. However, I agree that bridge strikes are dangerous, disruptive and costly. The solution does not lie in any single intervention; we must maintain our focus on getting bridge owners to put up the relevant signage and getting highways authorities to put up warning signs ahead of these bridges, and of course we must double down on our efforts to communicate with HGV drivers and bus drivers to ensure that they know exactly how high their vehicle is—indeed, by law they must know this, and it must also be displayed in the cab.
My Lords, the Minister has already noted that the Government support Network Rail in recovering costs from operators of HGVs involved in avoidable crashes. Network Rail also said that it will report bridge strikes to the Traffic Commissioners for Great Britain, the regulator responsible for licensing professional drivers, who have the power to suspend or revoke licences. Will Her Majesty’s Government support Network Rail in its pursuance of the suspension or revocation of HGV licences in this situation?
Absolutely, and I can reassure the noble Baroness that I have already been on the case in this matter. Bridge strikes have not suddenly arrived on our doorstep recently, although I am pleased to say they seem to be coming down in number, which is a relief. I wrote to the Traffic Commissioners on 17 September last year, after a terrible bus crash—noble Lords may remember it—where the top of the bus, which had children on board, went into the bridge. It was a very serious matter. I asked the commissioner to remind all operators of their obligations, and he wrote me a very helpful response just a week later setting out a range of measures he would take, not only communicating with the drivers and operators but setting out what steps must happen when an event has occurred—there is usually a public inquiry, the driver may face suspension or revocation in more serious cases, and the operator can face sanctions relating to their licensing. So the Government do take this matter very seriously.
My Lords, my noble friend Lord Berkeley has highlighted a very important issue. Is the noble Baroness satisfied that the signage as set out in the Highway Code is as clear as it should be? I lived in the east Midlands, in Derbyshire, where there are a number of bridges. It is about not only the height of the vehicle but its width; sometimes the lorry arrives and the signage has not been put out properly for it to see the problem in advance. Can we look at that? If the noble Baroness is going to tell me that the signage is correct, what procedures are there to review the advice from time to time to ensure that the prevailing view is actually correct?
The regulations setting out what signs are needed are actually set out in chapter 4 of the Traffic Signs Manual, which is published by the DfT. We set out comprehensive advice on signage approaching a bridge to make sure that reduced height clearances are clearly set out in advance. It is up to the highways authority, under Section 41 of the Highways Act 1980, to make sure that the signage is appropriate. If noble Lords are aware of signs which they feel are insufficient, they should get in touch with the local highways authority, which has a responsibility to make sure the signage is correct. We feel confident that the Traffic Signs Manual sets out exactly what is required.
My Lords, that concludes Oral Questions for today.
Corporate Insolvency and Governance Act 2020 (Coronavirus) (Extension of the Relevant Period) (No. 2) Regulations 2021
Motion to Approve
Armed Forces Bill
My Lords, it is a privilege to be speaking to the Armed Forces Bill this afternoon. Without this Bill, the Armed Forces Act 2006—the legislation that maintains the Armed Forces as a disciplined body—could not continue in force beyond the end of this year.
This Bill is for the Armed Forces. We have the best Armed Forces in the world; their professionalism and dignity has recently and vividly been displayed to us with the evacuation of over 14,500 people from Kabul airport to the safety of the UK. That draw-down operation was no easy undertaking, with the ever-present risk of attack and the emotionally charged, hostile environment that our service personnel found themselves operating within. It is their professionalism, integrity and resolute fortitude to get the job done that shone through.
The Government acknowledge their responsibility to the new arrivals from Afghanistan; as such, Operation Warm Welcome is fully under way to support and provide the necessary assistance where required. We owe an immense debt to those arrivals, and this Government are determined that we give them and their families the support they need to rebuild their lives here in the UK.
I acknowledge that many of us have questions about what has happened in Afghanistan. As the Prime Minister said,
“the events in Afghanistan have unfolded faster, and the collapse has been faster, than I think even the Taliban themselves predicted.”—[Official Report, Commons, 18/8/21; col. 1254.]
As the Defence Secretary said, “the die was cast” when President Trump struck a deal with the Taliban, paving the way for our exit. However, I reaffirm to your Lordships that we will now use every diplomatic and humanitarian lever at our disposal to restore stability to Afghanistan, and the Prime Minister has been clear that that will require a concerted and co-ordinated effort from the international community. None the less, this must not overshadow what our brave service personnel have achieved in Afghanistan, nor indeed their tireless efforts domestically at the forefront of the battle against the global pandemic. Therefore, I ask your Lordships to join me in commending and saluting their manifold accomplishments, and we can do that in tangible form by supporting this Bill.
This leads me to the integrated review. During the passage of the Bill in the other place, questions were raised over prospective reductions in service strength and, in turn, whether such reductions have negatively impacted our operational ability; for example, in Afghanistan. The integrated review is about the future; it is not about the past, and our military operations in Afghanistan are now at a close. Furthermore, it would be disingenuous to suggest that any variations in the overall Armed Forces strength figures could be directly and meaningfully linked to delivery of specific outputs. It is simplistic to say that there is a direct correlation between overall Armed Forces strength figures and capabilities. I reassure your Lordships that the UK Armed Forces continue to meet all their operational commitments, and we expect them to continue to do so, and our capability will be designed to meet a new age of threat.
Finally, before I turn to the Bill, I wish to say a few words about the recently published report from the House of Commons Defence Committee on women in the Armed Forces. I extend my gratitude to the members of that committee for their well-balanced and thoughtful report. I reassure your Lordships that we are giving the report serious consideration and the Ministry of Defence will publish its response soon.
Your Lordships will also be anticipating the outcome of the review led by Sir Richard Henriques, which was announced last year. We are very grateful for the comprehensive work Sir Richard has been undertaking. I expect to be able to update your Lordships in early course, and certainly in time for your Lordships to consider the matter during the passage of this Bill.
Without further ado, I now turn to the Bill. There is an Armed Forces Bill every five years to renew the legislation that governs the Armed Forces. This is currently the Armed Forces Act 2006, which contains nearly all the provisions for the existence of a system for the Armed Forces of command, discipline and justice. The requirement for renewal of the 2006 Act is based on the assertion in the Bill of Rights 1688 that the Army—and now, by extension, the Royal Air Force and the Royal Navy—may not be maintained within the kingdom without the consent of Parliament.
I wish to be quite clear that this Bill must pass to renew the 2006 Act by the end of this year, because current legislation does not provide for the 2006 Act to be extended beyond 2021. Your Lordships will understand that if we fail to effect that renewal, there would be serious consequences. For example, if the Act expired, members of the Armed Forces would still owe allegiance to Her Majesty and would have a legal duty to obey lawful commands, but there would be no penalties for disobeying orders or for other types of indiscipline. Service offences would cease to exist, commanding officers and service police would lose their statutory powers to investigate offences and enforce discipline, and the service courts would no longer function.
Discipline in every sense is fundamental to and underpins the existence of our Armed Forces. Indeed, it is the reason for their success in the discharge of their remarkable range of duties. That is why renewal of the 2006 Act is so important, and renewal is the primary purpose of this Bill. That is what Clause 1 provides for: the continuation of the 2006 Act for a year from the date on which this Bill receives Royal Assent. It also provides for renewal thereafter by Order in Council, for up to a year at a time, until the end of 2026. The Bill also provides us with a regular opportunity to update legislation for the Armed Forces.
I turn to service courts, summary hearings and jurisdiction. In 2017, in preparation for this Bill, the MoD commissioned an independent review of the service justice system to ensure that it continues to be transparent, fair and efficient. The review, led by His Honour Shaun Lyons, made a significant number of recommendations for improvement and this Bill deals with the small number that need primary legislation to be implemented, including changes to the constitution of the court martial and a power to correct mistakes, which is called a “slip rule”. Clause 7 deals with the issue of concurrent jurisdiction. For offences committed by service personnel in the UK, justice can be delivered through the civilian criminal justice system or the service justice system.
Importantly, the service justice system review found that the service justice system was fair and robust. But it also proposed that some of the most serious offences should not be prosecuted at court martial when they are committed by service personnel in the UK, except where the consent of the Attorney-General is given. To be clear, the review was not saying that the service justice system should stop dealing with certain categories of cases which occur in the UK. Rather, it was saying that, when such cases come up, controls should be introduced if they are to be tried in the service justice system. Meanwhile, jurisdiction would remain to deal with such cases overseas. I reassure your Lordships that the Government considered this recommendation fully and carefully and concluded that concurrency of jurisdiction must remain.
We have highly skilled, capable and effective service police, who have equivalent serious crime training to civilian police. They also follow procedures and processes used by civilian police, and, so far as investigations are concerned, are independent from the chain of command. Indeed, a process audit which was part of the Lyons review found that the service police have the necessary training, skills and experience to investigate any crime.
The Service Prosecuting Authority is headed up by a civilian, Jonathan Rees QC, who is a leading criminal silk and eminently qualified to lead the Service Prosecution Authority in prosecuting these and all types of offences. When he took up the position of director, he seconded, to lead on rape for the SPA, the former head of the Thames and Chiltern CPS rape and serious sexual offences unit, with all the experience and knowledge that brings. The judges who sit in the court martial are also civilians who frequently sit in the Crown Court. So we are confident that the service justice system is capable of dealing with all offences, whatever their seriousness and wherever they occur. But we agree that the current non-statutory protocols and guidance around jurisdiction must be clearer. That is why Clause 7 places a duty on the heads of the service and civilian prosecutors in England and Wales, Scotland and Northern Ireland to agree protocols regarding the exercise of concurrent jurisdiction.
We believe that such decisions on jurisdiction are best left to the independent service justice and UK civilian prosecutors using guidance agreed between them, but the Bill ensures that the civilian prosecutors will have the final say should a disagreement on jurisdiction between the prosecutors remain unresolved. I want to be clear here: this is not about seeking to direct more cases into the service justice system and away from the civilian criminal justice system or vice versa. It is about guaranteeing that both systems can handle all offending and are equally equipped to deliver justice for victims.
I turn to the Armed Forces covenant, which the Bill takes important steps to strengthen. Clause 8 imposes a duty to have due regard to the three principles of the covenant on certain public bodies across the UK. It is perhaps helpful to remind your Lordships of the three principles of the Armed Forces covenant: first, the unique obligations of, and sacrifices made by, the Armed Forces; secondly, the principle that it is desirable to remove disadvantages arising for servicepeople from membership, or former membership, of the Armed Forces; and, thirdly, the principle that special provision for servicepeople may be justified by the effects on such people of membership, or former membership, of the Armed Forces.
Clause 8 inserts new sections into the 2006 Act to impose the duty in each of the four nations of the United Kingdom. The new duty will apply where particular types of public bodies or persons are exercising certain of their public functions in key areas of housing, education, and healthcare, which are vital to the day-to-day lives of our Armed Forces community.
In the area of housing, the duty covers bodies that are responsible for developing housing allocation policy for social housing, homelessness policy and the administration of disabled facilities grants, which can be vital for injured veterans.
In education, we know that our service families sometimes face challenges, due to their service-related lifestyle, in accessing suitable school places for their children. Specific challenges may present themselves in relation to service children with special educational needs or disabilities—as it is described in England—when attempting to maintain continuity of provision to meet their needs. We know that some service children have specific well-being needs and this duty will target those who are responsible for this, ensuring that they understand and consider the specific needs of our community’s children.
In healthcare, much has already been achieved, but service families and veterans may still experience disadvantages, often caused by their mobility or healthcare requirements resulting from military service. This duty will apply to all bodies that are responsible for commissioning and delivering healthcare services across the UK.
At this point it would be useful to remind your Lordships that health, education and housing are all matters for which the devolved Administrations are responsible, and they are administered as best suits those nations. However, the Government have been delighted with the proactive support we have had from colleagues in the home nations for the covenant as a whole and for this legislation in particular.
Guidance will be crucial to ensure that bodies subject to the new duty understand the principles of the covenant and the ways in which members of our Armed Forces community can suffer disadvantage arising from service. Clause 8 provides that the Secretary of State may issue guidance in relation to the duties imposed to which those subject to the duty must have regard when exercising a relevant function, and he must consult with the respective devolved authorities where this is relevant, and other appropriate stakeholders, before issuing the guidance.
The Bill also provides for the covenant duty to be extended in the future. The Secretary of State may, by regulations, widen the scope of the new duty to include additional functions and bodies in other areas. However, before doing so, he would be required to consult the relevant devolved authorities and other appropriate stakeholders, and any amendment—this is important—would have to be made by way of affirmative regulations, requiring the express consent of Parliament.
Clause 9 deals with a new continuous service commitment that will enable members of a Reserve Force to volunteer to undertake a period of full-time or part-time service. This offers a more flexible suite of engagement options for reservists, incorporating seamless movement between full and part-time service under the Reserve Forces Act 1996, and empowers defence with greater freedoms to introduce further modernising changes to reserves commitment types.
Clause 10 creates a power to change the minimum time limit for submitting an appeal against a first-level decision in a service complaint from six weeks to two weeks. It also provides the ability to restrict the grounds on which someone can appeal. There are good reasons to make these changes.
Currently, the 2006 Act provides for a minimum time limit for submitting appeals of six weeks, and this is the time limit set in regulations. However, we believe that in most circumstances two weeks is adequate for someone to submit an appeal. Not all service personnel are engaged in the same type of work; many are engaged in roles such as working in offices, where a two-week deadline would be appropriate. This approach is in keeping with other public sector complaints systems. However, of course, we recognise that there are circumstances in which it would not be appropriate to restrict the time to appeal to two weeks, such as for those deployed on operational duties or those in poor health. In such cases, an extension can be sought.
We also need to ensure that people have good reason to appeal. Currently a complainant need only say that they are unhappy with the decision. We believe that appeals should be permitted only where there were procedural errors or where new evidence is provided that may change the outcome of the original decision. Where a complainant’s request to move a service complaint to the appeals stage has been deemed inadmissible, they are entitled to ask for a review of that decision by the Service Complaints Ombudsman.
Clause 10 and Schedule 3 are part of wider reforms to support service personnel through the complaints system, to increase efficiency and to reduce delay within the service complaints process. Other reforms, which do not require primary legislation, will provide guidance agreed with the Service Complaints Ombudsman on the criteria and grounds for appeal, early access to an assisting officer, mandated offers of informal resolution, easy-read guides for complainants and respondents, and improvements to forms for lodging complaints.
We have to ensure that we modernise and reduce delay in the service complaints system, creating where we can a consistent experience across defence, and following best practice from other parts of the public sector. It is crucial that our service personnel feel confident that complaining will not adversely impact on them. Therefore, complaints must be dealt with appropriately and in a timely fashion to build that trust further.
Clause 11 amends the 2006 Act to create a new regime for complaints against the service police and related matters. It does so by establishing the service police complaints commissioner and enabling the creation of a regime for complaints, conduct matters and death or serious injury matters which is modelled on the regime for the civilian police in England and Wales. The clause also contains powers that will enable provision to be made in relation to both super-complaints and whistleblowing, which will be modelled on the regime for the civilian police in England and Wales.
The new independent service police complaints commissioner will oversee the new complaints regime and will carry out investigations into the most serious allegations against the service police. The commissioner will also have overall responsibility for securing the maintenance of suitable arrangements for making complaints and dealing with other serious matters. The creation of this new oversight regime brings the service police into line with their civilian counterparts.
The Bill also addresses sentencing and rehabilitation. It would enable the court martial and the Service Civilian Court to disqualify offenders from driving in the UK and deprivation orders to be made in the service justice system. The Bill also makes some minor technical adjustments to the rehabilitation periods for reprimands.
Finally, among the main provisions in the Bill are steps to right the wrongs of the past which ensure that posthumous pardons for those who were convicted of historic service offences relating to their sexuality also apply fully to convictions under older legislation governing the Army and the marines.
This Armed Forces Bill makes important changes to the service justice system, bringing forward the sound recommendations of the Lyons review that require primary legislation. The Bill ensures that our service justice system remains fit for purpose, and, importantly, it will strengthen the legislative basis of the Armed Forces covenant to help ensure that those who serve and have served, and their families, are treated with fairness and respect in the communities they serve.
I look forward to the detailed scrutiny which we shall give the Bill in Committee and I commend it to the House.
My Lords, I thank the Minister for her usual clear and helpful introduction to this legislation, which the House will appreciate. It is a privilege to speak for Her Majesty’s Opposition on this Armed Forces Bill, so I join the Minister in her comments.
The Armed Forces Bill provides Parliament with an essential opportunity every five years not only to renew the legal underpinning for the Armed Forces but to examine how we can improve the lives of, and protections and support for, personnel and their families through legislative change. I make it clear that Her Majesty’s Opposition stand firmly behind our brave service personnel and their families, and we strongly believe that the law should be on their side. That is why I say to the Minister that we support the principles behind the Bill and indeed the Bill itself, and welcome steps to create a legal duty to implement the principles of the covenant and the key elements of the Lyons review.
However, there are many both in and outside the House who believe that the Government could and should go further. Therefore, our main priority will be to work with others cross-party to improve the legislation where appropriate and to challenge the Government on certain points in order to seek further clarity. Our forces communities are themselves determined that the Bill should not be a missed opportunity, so we will bring forward amendments in good faith to reflect these calls where we believe the Bill could be strengthened.
First, we need to place the Bill in context. The UK is currently facing a rapidly changing security environment, threats are multiplying and diversifying, democracy itself is under pressure and technology is changing warfare for ever.
As the Minister acknowledged, we also debate this legislation on the back of the Afghan withdrawal. Afghanistan, whatever the rights and wrongs, has demonstrated how quickly situations can change, with serious consequences for the UK and our allies. I join the Minister and, I know, everyone across the House in noting the bravery of our personnel and their professionalism during the evacuation, which has been incredible and, once again, awe-inspiring. Alongside them were embassy staff, diplomats and many other personnel, including many of our Afghan colleagues who stayed with us until the end. We are used to this brilliance, but we must never take it for granted. We thank them for everything they have done and recognise that our troops are a great source of pride for our country, as they should be.
However, as the Minister herself acknowledged, we cannot escape what has happened, as withdrawal has raised questions about the future and what the Government’s Global Britain actually means, nor how the trauma of recent scenes will not end for our personnel and Afghans now that the main evacuation is over. As I said, we owe them a huge debt of gratitude, along with a moral obligation to continue to support serving personnel, veterans and former local staff. Combat Stress pointed out recently that, not unexpectedly, perhaps, calls to its helplines doubled in August. In the light of that, we will work with the Minister to suggest where the Bill may be strengthened and, in particular, to look to ensure how the Ministry of Defence continues to provide additional mental health support for those who have been affected by the Afghan withdrawal.
As we turn to the Bill, I am reminded that sometimes the Government’s rhetoric may not match the reality of their actions. The Prime Minister promised not to cut personnel, but the integrated review defence Command Paper is a plan for 10,000 fewer troops. The overseas operations Act promised to end repeat investigations, but focused only on prosecutions, not shoddy investigations, nor a duty of care for troops.
We need to ensure under the Armed Forces covenant that the law fits what we all want to achieve. The Bill introduces “due regard to principles” of the covenant, but what will that mean in practice. How will it be measured? What will enforcement look like? What redress is there for Armed Forces personnel who feel let down? Many of us, including me, would argue that this commitment needs to be broadened. At the moment, it focuses only on healthcare, housing and education. Of course, all of those are important, but the Government need to ask themselves: why not social care, why not employment, why not pensions or, indeed, immigration?
That oversight has been raised by not only people such as me but many service charities and organisations. The Army Families Federation said:
“This limited scope will address only a small proportion of the disadvantages that Army families face”,
while the Royal British Legion said that the scope should be widened to include all matters affecting the Armed Forces community. Help for Heroes said that, as many issues of vital concern to veterans will be excluded, the Bill risks creating a two-tier covenant.
I am sure that the Government will point to proposed new Section 343AF, which allows the Secretary of State to add later by regulation other policy areas and additional persons and bodies to which the “due regard” principle applies, but how often will that be reviewed? What will the consultation process look like?
I was also surprised to see that, while the Bill creates new responsibilities for a wide range of public bodies, from school governors to local authorities, central government is not included. I remember that the noble Lord, Lord Kirkhope, for example, questioned that oversight during the Afghanistan debate late last month. Why are Ministers not including central government within the Bill?
The Armed Forces covenant represents a binding moral commitment between government and service, but also between the public and our Armed Forces and communities, guaranteeing them and their families the respect and fair treatment their service has earned, suffering no disadvantage. That is why the scope of the legislation must be wide enough to ensure that all areas of potential disadvantage are addressed, and we will be tabling amendments to probe the Government’s thinking.
What about the Government’s stated objective to improve the service justice system, ensuring that personnel have a clear, fair and effective route to justice wherever they are operating? That is on the back of the Lyons review, which, as the Explanatory Notes state, was carried out with the aim of ensuring the service justice system's effectiveness. We welcome efforts to implement key recommendations of the Lyons review, particularly the creation of an independent service police complaints commissioner, which will ensure greater oversight and fairness in service justice cases. But the Government should clarify—to be fair, the Minister attempted to do this in her remarks—why they have not adopted the Lyons recommendation that civilian courts should have jurisdiction in matters of murder, rape and serious sexual offences committed in the UK. The Minister will know that the MoD’s own figures show that between 2015 and 2019, the conviction rate for rape cases tried under courts martial was just 10%, while, during the same period, the conviction rate was 59% in civilian courts, with considerably more cases being tried each year.
Indeed, in evidence in other place, the Victims’ Commissioner, Dame Vera Baird QC, said:
“Rape and sexual assault are hugely under-reported, and it is all the harder to report something when you are inside a system that is hierarchical and you may be jeopardising your own career”.
The report from the Sub-Committee on Women in the Armed Forces, chaired by Sarah Atherton MP, stated:
“We do not believe that the problems highlighted by the Lyons Review in the handling of sexual offences in the Service Justice System have been fully resolved.”
Again, we will need to explore the Government’s thinking on that in Committee. Therefore, we will be seeking an amendment to the Bill to ensure that court martial jurisdiction should no longer include rape and sexual assault with penetration, except where the consent of the Attorney-General is given. Given that reports such as the Wigston review have highlighted unacceptable levels of sexism, we shall be looking to see how we can strengthen the Bill in that area.
There are many other amendments under which we will seek to pursue the Government and to clarify their thinking in later debates: visas for Commonwealth and Gurkha veterans; a review of the number of people dismissed or forced to resign from the Armed Forces due to their sexuality; the role of Reserves, which I am sure that the noble Lord, Lord Lancaster, will touch on, given his excellent report; and building on the creation of a representative body for the Armed Forces.
Finally, the Minister highlighted those who were dismissed in the past because of their sexuality. I think all of us in this House welcome the Government’s commitment to do something about that. It was a historic wrong which has been too long in the undoing, and I think we would all compliment the Government on doing something about that, but there are many other important issues that we need to discuss.
Her Majesty’s Opposition remain wholeheartedly committed to working across the House to doing all we can for our Armed Forces. Our service communities deserve nothing less. I know that view is shared by everyone, so let us work together to try to achieve it.
My Lords, I associate these Benches with the tributes paid by the Minister and the noble Lord, Lord Coaker, to the expertise and professionalism of the British forces in the recent withdrawal from Afghanistan.
In February 1997, Lance-Sergeant Alexander Findlay of the Scots Guards, a veteran of the Falklands campaign and the Battle of Mount Tumbledown, successfully appealed to the European Court of Human Rights against his conviction for assault. Suffering from PTSD, he had held members of his own unit at pistol point and threatened to kill himself and them. The court held that the constitution of courts martial in the UK was such that they were not an independent and impartial tribunal, as required by Article 6.1 of the European Convention on Human Rights. The march to reform the system had begun. I declare my personal interest as chair of the Association of Military Court Advocates.
This Bill means that we have nearly reached the conclusion of that march. I pay tribute to the excellent review of His Honour Judge Lyons, who comprehensively covered the ground and made recommendations on the composition of the panel that tries these cases, including on numbers, on the need for more than a simple majority to convict and on the extension of membership to chief petty officers and their equivalent. He also proposed that a board need not be of single service composition in general discipline matters. I raised all these issues as amendments to the then Armed Forces Bills of 2006, 2011 and 2016, in step with the evidence given to the Commons committees by the highly experienced former Judge Advocate-General Jeff Blackett. Something once bitterly opposed by the Ministry of Defence, under Governments of every stripe, is now seen as uncontroversial and commonplace; I am grateful to the Government for that and to the noble Baroness, Lady Goldie, for the way in which she opened this case and has been open to discussion and consideration of these proposals.
The one recommendation of Judge Lyons that the Government rejected is that 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. The judge thought it important enough to make it his first recommendation. In 2006, I moved an amendment to negative this novel extension of jurisdiction, introduced in the then Bill. My excuse for quoting myself is that my remarks were quoted in Judge Lyons’s review. I said:
“The purpose of my amendments is to maintain the present position. The present position traditionally has been that if a serious offence of treason, murder, manslaughter or rape is committed in the United Kingdom, as opposed to abroad, by a soldier or serviceman or a civilian subject to service discipline, those offences cannot be tried by way of court martial but can be tried only in the Crown Court”—
that is if the offences are committed in the United Kingdom. I continued:
“That is the position today. For some reason, which has not been adequately explained, although I have pressed the matter both in Committee and on Report, the Government think that it is right to extend the jurisdiction of the court martial court to encompass any criminal offence.”—[Official Report, 6/11/06, cols. 599-600.]
I lost the Division by 63 largely Liberal Democrat votes to 165 Labour votes. The Conservatives abstained.
What, then, is the reason given by this Government to reject Judge Lyons’s primary recommendation to restore the pre-2006 position: that cases should normally be heard in the civilian courts, as they always used to be? If a really exceptional case arose, an application could be made to the Attorney-General to transfer it to the court martial system; I suggest the possibility that a manslaughter case involving the failure of equipment or the exigencies of training might be such a case. I had a look at the justification given by Mr Leo Docherty in the other place in answer to the Labour amendment. He suggested:
“If the AG had to give consent, the process would be slower … there would be no easy way to transfer that case to the civilian system.”—[Official Report, Commons, 13/7/21, col. 251.]
The noble Baroness, Lady Goldie, tried to expand on his explanation by suggesting that it shows confidence in the service system if it can try everything. I do not think that is the right position. I am not aware of any case of a murder committed in the United Kingdom and involving service personnel that has been tried by court martial since 2006.
However, on rape, the Government’s position has been completely undermined by the Defence Sub-Committee’s report Women in the Armed Forces, published on 25 July—barely a month ago—and to which the noble Lord, Lord Coaker, referred. As it happens, the review was chaired by my own Member of Parliament, Sarah Atherton—the only Conservative in recorded history ever to represent the constituency of Wrexham. She said:
“Sexual assault and rape are amongst the most serious offences committed against female service personnel … It is difficult not to be moved by the stories of trauma, both emotional and physical, suffered by women at the hands of their colleagues. A woman raped in the military often then has to live and work with the accused perpetrator, with fears that speaking out would damage her career prospects … From our evidence, it is clear to us that serious sexual offenses should not be tried in the Court Martial system. It cannot be right that conviction rates in military courts are four to six times lower than in civilian courts. Military women are being denied justice.”
To underline those comments, Judge Lyons’s review contains a telling statistic: in 2017, of the 49 charges of rape preferred before a court martial, there were two convictions. This means that up to 47 victims and their families have been failed by the system. What does that do for the recruitment and retention of women soldiers? I leave it to your Lordships’ imagination. It undermines the trust and public confidence on which the whole criminal justice system, whether military or civil, depends.
Here, we have a number of factors coming together. Giving jurisdiction to courts martial to try murder, manslaughter and rape charges for offences committed in the UK was an aberration introduced by the Labour Government in 2006. It is not a hallowed part of service history. The Conservative Party did not support it at the time. In considering this Bill, the Labour Party has called for its removal in the other place. The jurisdiction has not been utilised, save for rape cases in a highly unsatisfactory way. As I said, the Conservative chair of the Defence Sub-Committee, after the investigation, stated:
“Military women are being denied justice.”
She is right. The Government, which cannot give a sensible explanation for its retention, should heed the voices from Wrexham and follow Judge Lyons’s recommendation.
Another issue that remains is that of sentencing. I have argued during the passage of each Bill that sentencing is a complex process resulting in varying disposals. I suggest again to your Lordships that it should be left to a professional judge to determine sentence, not to a panel whose members may well be making such a decision in respect of a defendant for the one and only time in their lives. Whereas they can impose sentences of up to life imprisonment, magistrates with lengthy experience of the judicial system can do no more than pass a sentence of 12 months. It is true that, these days, a judge sits in on and participates in the decision, but he does not have a casting vote.
Of course I pay tribute to our armed services—they are very close to all our hearts in this House—but we must have a justice system that is perfect. We have moved strongly in that direction. My noble friends Lady Smith of Newnham and Lady Brinton will deal with the important aspects relating to the military covenant, while the noble Baroness, Lady Garden, will deal with pensions. I fully support what they will say.
My Lords, I welcome the Armed Forces Bill 2021 and support the principle of strengthening the Armed Forces covenant in law. As the Lords Defence Minister at the time, I was responsible for the passage through this House of the Armed Forces Bill 2011, which received Royal Assent in November 2011. It amended the 2006 Act, most notably by requiring an annual Armed Forces covenant report to be presented to Parliament—which has been done each year since. Following the present Government’s manifesto commitment, this Bill makes provisions to further incorporate the Armed Forces covenant into law. I very much welcome the Government’s stated support for this position, and I am grateful to Poppyscotland for the briefing that it sent me.
Maximum advantage should be taken of this golden opportunity to enhance the delivery of the covenant to the Armed Forces community and ensure that it is fit for purpose for the next 10 years. During the consideration of the Bill by the Commons Select Committee, a wide range of oral and written evidence was received from those who regularly work with the Armed Forces covenant, often daily. They included Armed Forces charities, representatives of local and devolved governments, the Veterans Commissioners in Scotland and Northern Ireland, and the Local Government and Social Care Ombudsman. The committee also undertook its own online survey of the Armed Forces community. The evidence repeatedly highlighted the desirability of the Bill being enhanced, and in particular the need to apply the same legal standard to national government as would be applied to local government.
Members of the Armed Forces community access public services through national, devolved, regional and local bodies, so it is important that there is a consistent approach, so that all public bodies recognise their responsibilities under the covenant. However, the Bill as introduced largely applies only to local government and some education and health bodies. National government should be subject to the same legal standard on the covenant that it seeks to apply to councils.
Many of the policy areas in which members of the Armed Forces community experience difficulty are the responsibility of national government or are based on national guidance provided to other delivery partners. This is particularly relevant to ensure that serving personnel, for whom many services are the responsibility of the MoD, benefit from the Bill’s provisions along with the rest of the Armed Forces community. I also suggest that the Scottish Government, in addition to Scottish councils and certain public bodies, should be within the scope of the new “due regard” duty. Many issues affecting Scotland’s Armed Forces community are the responsibility of the Scottish Government. Without the application of the Bill’s covenant provisions to all aspects of devolved government, national policies developed in Scotland will not be subject to the duty of due regard, as will be the case at the local level. On this point, I welcome the view expressed by the then Scottish Government’s Minister for Parliamentary Business and Veterans in evidence to the Select Committee, indicating that he would be content with such an expansion.
The overwhelming backing for widening the Bill’s scope would suggest that improving the Bill in this way would be an uncontroversial step for the Government that would command widespread support and consensus.
My Lords, I too welcome this Bill. I wish to speak about the service justice system, and in particular the courts martial. It is important that we put this on a firm and clear basis, because the bravery of our Armed Forces, shown recently in particular in Afghanistan, demands no less. I therefore welcome the recommendations and their acceptance by Judge Lyons in matters such as the type of majority that is required for a court martial jury to convict, and also the slip rule. These are welcome and have been long advocated by Judge Jeff Blackett, who did so much to bring the courts martial system into line with the ordinary courts.
However, I too take the view that the best solution would have been to adopt the recommendation of Judge Lyons in relation to the concurrent jurisdiction point. I will say nothing about two factors which are important, namely the independence of the investigation and the experience of prosecutors, until we have the report of Sir Richard Henriques. That is crucial to these issues and I would be grateful if the Minister could indicate when it might become available.
Two critical matters do arise at this stage. First, why do we retain special juries in serious cases in respect of murder and sexual offending for the military? These were abolished in the rest of our justice system many years ago and it is difficult to see why they should be retained, save in exceptional circumstances. Why is a member of the Armed Forces not entitled to the protections that the rest of us have? It will be interesting to hear what the Minister has to say about that fundamental point. Secondly, I assure the House that sentencing is an incredibly difficult exercise that requires a great deal of experience. There is therefore no reason for differentiating the court martial system from the ordinary justice system. I very much hope that the Minister will think again on these points, and I look forward to speaking in support of what it has been indicated that the Opposition might move in relation to Judge Lyons’s recommendation.
Perhaps I may say two words about the proposed solution to the concurrent jurisdiction issue. First, if this is the route we go down, it will be easier to see whether the details have been got right when we see the report of Sir Richard Henriques on the matters. There are three matters that I will briefly mention. The first is the question of supervision or the provision of factors that should influence the protocol. We are delegating very considerable powers to two law officers. Should Parliament consider setting into the Bill the factors that they should take into account, or should Parliament approve the protocol? Secondly, the choice of jurisdiction is quite unlike the choice of a prosecutor as to whether to prosecute or not. I respectfully ask the Minister to consider whether there should not be a right of appeal to a judge of the Court Martial Appeal Court if the defendant or the complainant feels that the wrong choice has been made. This seems to be a far preferable route to seeking judicial review of the prosecutor’s decisions.
The third point, which is possibly a technical mistake in the Bill, is that the protocol will deal only with offences committed in the United Kingdom. However, there is concurrent jurisdiction for certain offences, wherever they are committed, murder being the clearest example. Therefore, if we are to go down the protocol route, it seems to be a technical error to have left out dealing with the issues in relation to the commission of serious offences overseas. I merely put on the record that this was one of the issues that arose in the Blackman case, and it is accepted that that trial could have been conducted if a different decision had been made in the ordinary courts of the land—just as any British citizen accused of murder can be tried here. This is a problem that should not be left out of the Bill. It is not dealt with satisfactorily at present.
My Lords, I too want to pay tribute to our Armed Forces. In repaying their service, it is right, as the Armed Forces covenant states, that
“those who have served in the past, and their families, should face no disadvantage compared to other citizens”.
I welcome the provisions in the Bill enabling greater legal enforcement of the covenant in achieving this parity.
At the same time, however, the Government must pay attention to the unique working environment of military service and the accompanying higher risk prevalence of a variety of health-related issues that occur both during active service and when readjusting to civilian life. Numerous studies over the years have identified a higher prevalence of alcohol misuse in military service personnel compared with the general population. The Ministry of Defence explicitly recognised this reality back in 2016 when it introduced the AUDIT-C questionnaire for alcohol screening during routine dental inspections by defence primary health care dentists.
Despite this positive public health approach in the past, last year I asked the MoD about the success of its existing programmes in the military to stem gambling-related harm. I was surprised by the response that it had seen no evidence that service personnel were more prone to problem gambling than any other group. I am tempted to say that it cannot have looked very hard. There is a raft of studies from the United States of America analysing the gambling habits of both serving personnel and veterans. Those studies have found far higher rates of pathological gambling and lifetime gambling disorder in both those serving and in veterans, and in both genders. Based on this evidence, the United States of America introduced screening for gambling in Section 733 of the 2019 National Defense Authorization Act.
Of course, the conditions that give rise to problem gambling and the nature of the addiction itself may differ between the UK and the USA, but that alone does not mean that the possibility of higher than average levels of gambling disorder in the military can be dismissed. One of the few UK studies of problem gambling, from 2018, using data from the 2007 Adult Psychiatric Morbidity Survey, recorded UK veterans as being eight times more likely to be problem gamblers than the general population—a trend that broadly mirrors those found in the United States of America.
Currently, little research has been done on the gambling habits of serving UK personnel but, since similar trends in UK veterans and their American counterparts have been found, there is good reason to believe that the gambling habits of American service personnel broadly correlate to those in the UK. In fact, the UK has had a much more relaxed attitude to regulating online gambling. If ever research were undertaken into the gambling habits of UK service personnel, it is likely that it would reveal levels of gambling disorder that exceed those in the USA military. I believe that screening for gambling disorder is as important as screening for alcohol misuse. Both are destructive; both ruin lives.
It is part of our care for those who go into these dangerous situations and are put under huge psychological pressure that we screen them and make sure they have proper support. For this reason, I am minded to table amendments to the Bill in Committee including provisions that mirror those the USA already uses when screening for various disorders in the military, including gambling disorders.
On a final note, I simply want to add my support to the Government in not forgetting those who served their country and have long since passed, and I welcome the extension of posthumous pardons for now abolished service offences.
My Lords, I echo other noble Lords’ words of support for and admiration for our Armed Forces. I have the highest regard for those who serve. From their work on the front line of the pandemic to operations around the world, such as Operation Pitting, daily they earn our admiration and deserve our gratitude. As my noble friend Lord Coaker has so clearly and articulately explained, Labour has made clear at every stage of the Bill that it is our intention that they be given the support they need and deserve, both during service and thereafter. It is the Government’s duty to look after the Armed Forces. As my noble friend said, and as has been echoed, the Armed Forces Bill presents this Parliament with its best opportunity to improve the lives of our service personnel, veterans and their families, and it should not be allowed to become a missed opportunity.
For that reason, my Labour colleagues and I support the principles that underpin the Bill. There are welcome steps in the Bill, including the creation of a legal duty on public bodies to have regard to the principles of the covenant, but I too urge the Government to go further. That is why, in the other place, Labour put forward amendments to strengthen the Bill so that it offers the support and protection identified as needed now by many of our service personnel. Disappointingly, all of them failed to attract government support, and I was appalled to read in the debates the disrespect with which some of these amendments were treated by the Minister who predominantly responded for the Government.
The legal duty to have regard to the principles of the covenant imposes new legal responsibilities which appear, certainly in the main, to apply only to councils and some limited public bodies delivering certain aspects of housing, health and education. As has already been said—I commend the noble Lord, Lord Astor of Hever, who made a persuasive and compelling case for the principal point I wish to make here—it would appear that these amendments do not apply to the Government; they are absent from this commitment. In moving an amendment that placed the same legal responsibilities for the Armed Forces covenant on central government, my honourable friend Stephanie Peacock in the other place asked the Government to show leadership in at least holding themselves to the same standard that they are imposing on others.
Interestingly, the Bill, which was published in January, was the subject of a substantial piece of work by the Government, on 21 January, on the pages of the Government’s website aimed at those who are entitled to the protection of the covenant. A four-page document entitled Armed Forces Covenant—Proposed Legislation was posted. On page 2, under the heading “aims of the legislation” the Government’s stated that it was intended
“to increase awareness among service deliverers and policy makers of the unique obligations and circumstances facing the Armed Forces Community”.
Service delivery and policy—not alternatives, but complementary purposes. So I ask the Minister, for whom I have the most enormous regard, just how it is hoped that the legislation will increase awareness among the relevant policymakers if it does not apply to them? Or were we to infer from her words about the devolved Administrations that it applies to policymakers in the devolved Administrations but not to policymakers in our own Government? Either the Bill needs to be amended to meet the Government’s own aims, or, in all honesty, they must go back to those web pages and erase the reference to policymakers, because it is not served by the Bill.
In July, leading military charities joined together to urge the Government to improve the Bill by extending its scope to make sure that greater protections are given in employment, pensions, social care and immigration—issues that are currently affecting the Armed Forces community—and the Government’s response was to vote down attempts to do just that. At the same time, some Afghanistan veterans struggling with the scenes of chaos in Kabul and of the unchallenged Taliban seizure of power across the country have had their own trauma from their experiences come back to them, but this time, in the context of a public narrative of failure.
Many young soldiers involved in a Kabul evacuation operation will need different forms of counselling in the coming months, but published targets for mental health care for members of the Armed Forces community are routinely missed. A formal review of the standards of mental health care available to service personnel was called for; the Government did not agree in July, but should now consider it, in the face of the evidence that is emerging. I regret also that the Armed Forces Minister James Heappey, in unforgiveable errors yesterday, has done nothing to instil confidence that the Government have a grip on this important issue.
Finally—I apologise for slightly overrunning the advisory time—I plan to revisit an issue I raised first on the overseas operations Bill and signposted that I might return to in this Bill, which is the protection and guidance that Armed Forces personnel need to ensure they comply with the law, including international humanitarian law, and explaining how international and domestic legal frameworks need to be updated, all because of the use of novel technologies that could emerge from or be deployed by the Ministry of Defence, UK allies or the private sector, which is now routinely deployed with our Armed Forces in overseas operations as part of multinational force deployment. On this point, I commend the Minister and her officials for their generous and helpful engagement with me and other noble and noble and gallant Lords on the complexity of these issues since I first raised them. That discourse will continue and I am grateful for it.
My Lords, the next speaker will take part remotely. I call the noble Baroness, Lady Brinton.
My Lords, I will focus my speech on Clause 8 on the covenant. I support the comments made by the noble Lords, Lord Astor and Lord Browne. The creation of the covenant is a serious and enduring undertaking by Ministers and Parliament on behalf of the people of our nation, who understand the sacrifice that we are asking of those serving and their families when they undertake the obligations of protecting our nation and our interests in the world. It is vital because it also recognises that those sacrifices continue beyond the time that they serve, understanding that many of our veterans and their families also face barriers to living what the rest of us would regard as a normal life.
As health spokesperson for my party from these Benches, I will particularly raise the difficult and sensitive subject of the practicalities of delivering the covenant for access to health services, especially but not only mental health. Over recent weeks, I have talked to family and friends who are current or former service personnel deployed in Afghanistan and Iraq. The recent shocking events in Afghanistan have brought back the most difficult memories and experiences for many of those who made sacrifices for us and, they believe, for the Afghan people. For some, their PTSD has been retriggered; for others, there is a sense of helplessness about whether their deployments and the sacrifice of friends’ lives and health over the past 20 years were worth it.
Our service personnel, being ever practical, always just accept the order to “fill their boots”—service speak for “Go ahead and carry on with the task”—and they do. Here, I give a special shout out to the Sandhurst Sisterhood, which has worked tirelessly using and finding contacts to help senior Afghan women at high risk from the Taliban to get to safety. I mention it because much of the recent publicity has focused on our servicemen and far too often we forget that women were deployed to Afghanistan too. They suffered injury, physical and mental, and some did not come home at all.
The long-term mental health difficulties that many service personnel face are intended to be covered by the covenant, with responsibilities for our clinical commissioning groups, GPs and secondary hospital sector. The Minister, in her usual gracious way, helpfully explained the new duty in this Bill for housing, education and health, but the reality is that this new duty is only to “have due regard”, and without any similar duty for central government it is unlikely to be able to be delivered. It does not put a duty on those public services to actually provide the help that is needed. No duty and, as important, inadequate funding from central government mean that, too often, for individual current or former service men and women the covenant is not being fulfilled.
Combat Stress has said that it has had a doubling in calls to its 24/7 helpline from veterans struggling with their mental health. Its specialist clinics are hearing veterans say, “When we went there, we fought a war. Friends died, we struggled, we got blown up, and now they’ve given the country away.” One veteran, Dean, has attended 13 military funerals since he left the Army in 2008, including eight killed in Afghanistan; the others have subsequently taken their own lives. Dean said:
“it just feels as though it was all for nothing.”
Combat Stress is partnering with the NHS on Op COURAGE, but it struggles to support more than 1,600 veterans with severe complex needs a year. Some 75% of Combat Stress’s funding is from voluntary donations, and it believes that there are at least double the veterans needing this key expert service. We know that NHS mental health services are very stretched with extremely long waiting lists at the moment, so the capacity of local services to provide support is limited without guaranteed extra funding.
This last month has reminded all of us of the long- term problems that too many service men and women face. After Afghanistan moves out of the headlines, the covenant’s specialist health services commitment will probably be needed for the rest of our veterans’ lives. It must be a statutory duty, properly funded, including covering central government, to ensure it is not just lip service. I ask the Minister: what costings have been made for the help support needed under the covenant? Will the Government provide that funding?
Finally, in the debate on Afghanistan in August in your Lordships’ House, I said that the Armed Forces covenant needed to be extended to those who served alongside our troops in Afghanistan. The interpreters and members of the Afghanistan army who have been given the right to resettle here under ARAP stood and fought alongside our troops and faced exactly the same dangers. This group should also be able to access the services under the covenant in the same way.
The covenant is a key part of the duty of care that we owe our service men and women. They have and do fill their boots without question. It is time that Ministers, Parliament and our nation filled our boots to deliver a covenant that really works for the men and women who keep us and our world safe.
My Lords, I thank the Minister for the very clear way she introduced this very important Bill. I join those who have spoken already very eloquently in thanking the Armed Forces. Sometimes that is particularly important on issues that they may feel have not been particularly successful. I think of those who gave their lives in Afghanistan and those who suffered very serious injuries there. Today they sometimes wonder just exactly what it was for. I do not know whether your Lordships are always able to answer that question; I must say that I find it quite difficult to know, except in relation to the idea of keeping out of existence a safe place for the development of terrorist organisations.
I associate myself very much with all that has been said in appreciation of the Armed Forces. We are extraordinarily in debt to the Armed Forces of the Crown and those who support them in every possible way. The Armed Forces covenant is some token of that. It is important that it is sufficiently specific to make it really worth while. For example, it is questionable whether it will be successful without incorporating central government, with its policy responsibilities, into the three principles mentioned that apply to local authorities to come up with possible results. Why they should not apply also to central government and the devolved Administrations I do not feel confident to answer, but I look forward to hearing an answer from the Minister in due course.
This Bill is an important reminder of the principle of our constitution that the Armed Forces of the Crown are not authorised by a statute that has no end. The statute that authorises the existence of the Armed Forces is one that always has a terminus. That is an important part of our constitution, and the need for this particular Bill is a very important reminder of that.
The last thing I want to say is that in relation to the previous Bill—the veterans Bill—the noble Lord, Lord Dannatt, and his colleagues pointed out the very difficult situation that some members of the Armed Forces have encountered as a result of experiences they have had in the course of their service that raised issues of possible criminality. I was not alone in being very moved by that account, and I wish that we could have done something about it then, but it was obviously very important to get that Bill through and therefore the noble Lord, Lord Dannatt, and his colleagues graciously decided not to press that amendment at the end of the consideration here. I am glad that the Government have fulfilled their promise to bring it forward now, and I sincerely hope that the noble Lord, Lord Dannatt, who will follow me, is pleased with that.
My Lords, it is now 10 years since the informal military covenant developed by the Army was converted into the Armed Forces covenant for the benefit of all three Armed Forces, and incorporated into the Armed Forces Act 2011. At the time, its incorporation was seen by some as something of a politically expedient device by the then Cameron Government because it lacked bite. I am therefore very pleased that this Armed Forces Bill provides many of the teeth that were missing, especially in the areas of housing, education and healthcare.
The well-being of our Armed Forces personnel once again came into sharp focus as we witnessed the extraordinary efforts of our service men and women in and around Kabul Airport last month. As Brigadier James Martin, commanding 16 Air Assault Brigade, said a few days ago, British soldiers cannot unsee the horrors of Kabul and will need help to recover from that deployment, which he described as “harrowing”. I would be grateful if the Minister would reassure the House that such help is being made available. I am considering an amendment to the Bill to ensure that such help is indeed forthcoming in full measure. I see this as an extension of the duty of care to our service- people—a topic debated and endorsed by your Lordships’ House earlier this year in the context of the overseas operations Bill but which was rejected by the government majority in the other place.
The non-combatant evacuation operation at Kabul raises other issues pertinent to the Bill. Given that one of the stated aims of the operation was to assist the evacuation of interpreters and other locally engaged Afghan civilians who had helped the British over the past 20 years, can the Minister provide any information about how many interpreters we have been able to bring to this country? My information is that we directly employed some 2,850 interpreters up until 2013 when the service was contractorised, but that only 440 interpreters benefited from the ex gratia scheme until the introduction of the Afghan relocation and assistance policy in April this year. My concern, which I believe is shared by many of the 45 senior retired officers who signed an open letter to the Government in July, is that many of the other 2,400 interpreters have not yet been brought to this country. Can the Minister provide an up-to-date figure on how many of those 2,400 interpreters were brought here between April and mid-August? Presumably all those disembarking from RAF evacuation flights were asked who they were and what they did to qualify.
I am sure that noble Lords will want to thank local councils around the country for making homes and education available to these Afghan people, and I also congratulate charities, such as Help for Heroes, which are agreeing to treat Afghans who stood shoulder to shoulder with us in the same way that they are supporting British veterans of recent conflicts. Among those who have recently arrived in this country are former members of the Afghan special forces. It has been suggested that some of them might wish to continue to serve in the British Armed Forces. I would welcome that, provided that normal nationality regulations are followed, or perhaps an exception should be made via another amendment to the Bill. Is this something that the Government are considering?
It was heartening to see the way in which the Government pragmatically put aside the rules regarding indefinite leave to remain to aid the resettlement of recently evacuated Afghans. This relaxation of the rules is part of Operation Warm Welcome, which will see individuals who worked for British forces and their families granted indefinite leave to remain in the UK. Unfortunately, this generous treatment is in stark contrast to how we currently treat our foreign and Commonwealth veterans. For them, many of whom will have served in Afghanistan, military service confers no such privilege. Indeed, when those individuals leave HM forces, they are treated the same as any other foreign applicant seeking indefinite leave to remain. Foreign and Commonwealth service personnel also miss out as they cannot apply to bring their families to the UK while serving unless they meet the income threshold, while under the new Afghan schemes the whole family can come notwithstanding income levels. We will therefore shortly face the bizarre situation where veterans of the Afghan National Army arriving here have greater residency rights than some veterans of the British Armed Forces. If we agree with the aspiration that the UK should be the best country in the world in which to be a veteran, we must ensure that we treat our veterans as well as we treat those to whom we give refuge. It is high time we extended the warm welcome to our foreign and Commonwealth veterans. Can the Minister update the House on the Government’s thinking in this regard?
While we are dwelling on anomalies, there are two other groups of veterans who are being disadvantaged. One is the dwindling ranks of servicemen who were excluded from the Armed Forces Pension Scheme 1975. Recently a petition signed by more than 30,000 people was handed to the Government requesting pension equity with those who benefited from the post-1975 scheme. It should be acknowledged that some of those discriminated against served in Northern Ireland, Aden and Borneo. Can the Minister update the House on progress to eradicate the pre/post-1975 pension inequality? Of course, the Northern Ireland veterans are eagerly awaiting the tabling of legislation to terminate the endless questioning of their operations during the Troubles. Are we any nearer to knowing when that legislation will be tabled?
Finally, it will not have escaped noble Lords’ notice that the other group of veterans currently being discriminated against—Gurkha veterans who retired from the British Army before 1997—have been on hunger strike outside Downing Street. This is shameful. Successive Governments inevitably carry some responsibility for the actions of their predecessors, and although many approved of the popular decision some 10 years ago to allow Gurkhas who had retired before 1997 to have residency rights in the UK, doing so without an uplift to their pension was shameful. A solution to this entirely predictable problem must be found before a Gurkha veteran dies on our streets. Does the Minister have an update on the resolution of this issue? The Armed Forces covenant is for all serving and veteran personnel, including minority groups whose voices often do not get heard.
My Lords, we all owe a great debt of gratitude to the brave men and women who have served and continue to serve us so valiantly in our Armed Forces at home and in combat overseas. In my part of the United Kingdom, Northern Ireland, we will never forget their efforts and, in many cases, their sacrifices during the height of the Troubles. For that reason, I welcome, and will always welcome, moves by Her Majesty’s Government to give greater standing to the Armed Forces covenant across the entirety of the United Kingdom. It is important to state that there should be no impediment that would block veterans from being treated fairly and equitably in any part of the United Kingdom.
In Northern Ireland, the New Decade, New Approach agreement committed the Government to legislate to incorporate the Armed Forces covenant further into law and to support its total implementation. It is right and just that the Bill before us today should treat Northern Ireland veterans and service personnel in exactly the same way as those in other parts of the United Kingdom, with full implementation of the military covenant. The failure to implement the covenant fully in Northern Ireland up to this point has let down our brave veterans. It is right that this injustice should be brought to an end.
Veterans across this nation should have full access to a full range of services. We owe it to our Armed Forces to do better. We owe it to them to provide a duty of care for legal, pastoral and mental health support. It is a historical fact that were it not for the bravery and courage of our Armed Forces and security personnel there would never have been a peace process in Northern Ireland and we would not have the relative peace that we enjoy today. We therefore have a duty here and in the other place to protect those who have protected us.
This stretches further, beyond the provision of the vital health and mental health services under discussion. We must also protect our brave men and women from malicious charges and questionable legal claims. We should value the principle that access to justice remains open for us all. To that end, it is worth noting in the strongest terms that there should never be any question of a blanket amnesty being offered. Where a murder has been committed, the law does and must apply equally. Equally, cases that have already been thoroughly investigated, and in some cases reinvestigated, and for which no new evidence has been brought forward, should not be continually reopened to satisfy a particular agenda.
There can be no moral equivalence between terrorists, or those accused of terror offences, and people accused of having committed offences when they were members of the Armed Forces trying to protect us from the terrorists. Those who served our country valiantly deserve some form of legislative protection against continual cycles of reinvestigation when they have been previously investigated and no compelling evidence has been brought. Where service personnel have been fairly judged to have carried out their duties, often in extremely difficult circumstances and at great risk to themselves, their actions should not be second-guessed years or decades later in the interests of political expediency.
British soldiers operate under the highest possible standards and with strict rules of engagement. The vast majority of service men and women act within the law in the service of their country. In any conflict there are of course exceptions to this. However, the majority of victims and veterans do not seek a blanket amnesty from prosecutions; they seek fair and equitable justice.
Regrettably, in recent decades we have witnessed a two-tiered approach to these sensitive issues. In some instances, decisions have been taken to shield the victim-maker rather than deliver justice. As it relates to Northern Ireland specifically, the early release of convicted terrorists under the terms of the Belfast agreement, and the subsequent securing of royal pardons through the on-the-runs scheme, equally perverted the criminal justice system. These are historical examples where dangerous legal precedents have been set.
We must at all times work hard to find proportionate answers to these extremely difficult questions. These answers will not be found if we follow a path that finds any equivalence between brave soldiers and the terrorists and criminals they protect us against when on the battlefield. We stand four-square behind our troops. We must support all efforts to ease the burden for our brave soldiers. Our veterans, and today’s service men and women, do not expect the path they have chosen to be an easy path.
I welcome the work that has been done to date, but it is clear that we have still much work to do. I firmly believe that the passage of this Bill into law will make a significant contribution to the improvement of the welfare of our brave service men and women.
My Lords, I too thank the Minister and join in the tributes to our Armed Forces. I wish to raise two points in connection with this Bill. I recognise that it is a routine Bill, but it gives us an opportunity to raise issues of concern.
My first point concerns the ombudsman. I have been given evidence of a case in which the ombudsman’s ruling was apparently overturned by the very senior officers who were comrades of the object of the complaint. Can the Minister assure us that there is now a cast-iron method of totally impartial complaint in which complaints against senior officers cannot be overturned by the might of the military machine?
I raise my second point because the Bill says it is
“to make provision about war pensions”.
There is virtually nothing about war pensions in the Bill, but the noble Lord, Lord Dannatt, has raised some anomalies and I wish to raise another. I am a vice-president of the War Widows’ Association, and the Minister is well aware of—and, I think, sympathetic to—the issue I wish to raise yet again.
Time was when military widows automatically lost their widows’ pensions if they remarried—obviously this edict was made entirely by men; no women, let alone widows, were allowed anywhere near it. It was also a time when the military made no pretence at being caring: wives were tolerated as long as they were camp followers, but woe betide them if they fell out of line. Happily, those days have largely gone. Many widows would be very young; servicemen often die young. The only support and legacy they had from the men who had died in the service of their country was the pension those men had left them. I well remember when my husband—as a young RAF pilot who had seen too many of his comrades meet an early death, and who paid as much as he could into the widow’s element of his pension—told me that if he died, not to remarry and lose all the contributions he had made but to live in sin and be happy. The terminology will tell noble Lords that this was a very long time ago. Of course, for his last three years he was a Member of your Lordships’ House, so happily he did not die as a young pilot.
Then, of course, the Military Police caught up with those living in sin, who we had to then call “cohabitees”, and they too lost the meagre pensions from their dead husbands. How cruel. How mean. For many of those women, that money was the only money that they held in their own account, so what penny-pinching politicians thought this was a caring saving on the public purse? Women who had lost their men—who had died doing their duty—were targeted to lose the pensions that were the last gestures from dutiful dead husbands.
For most military widows this cruel edict has now been cancelled, but there is a small and dwindling group of ageing widows who fell between legislation and who have not had their pensions restored nor any financial recompense. We are told that it is impossible to restore pensions retrospectively, but is it really beyond the brains of the MoD and the Treasury, where we do have some very bright people, to find a way of giving some sort of financial compensation to this last, small group of deprived and elderly widows? We are left with the conclusion that the MoD is waiting for them all to die off, for the problem to go away. Is this really the face of the caring military family?
I once again appeal to the Minister, who I know to be a caring person, to go back to the MoD and the Treasury and ask again for some form of financial help for these widows who lost their men and who, when they dared to find happiness in a new relationship, lost their entitlement to pensions. The total sum would be a pittance against an eye-watering aircraft carrier and would be greeted by such enthusiasm from all military widows, and indeed all the military community that cares. I look forward to the Minister’s response. I continue to live in hope, and I assure her that the War Widows’ Association will not give up on this campaign for justice for their peers.
My Lords, I start by declaring a familial interest in that my son, who is 24, is serving in the Army and therefore is subject to the Armed Forces Act and will be subject to this Bill, when it becomes an Act. I took the 2011 Bill through the House of Commons; it established the Armed Forces covenant, so I know a little about it. My noble friend Lord Astor took it through the House of Lords, as he mentioned. I recall that it was rather hard work, which is not always my favourite topic.
I will concentrate on one point alone today; it was raised by the noble Lord, Lord Coaker, from the Labour Front Bench. The humiliating defeat and disaster that was the withdrawal from Afghanistan has changed the geopolitical spectrum beyond recognition. China, Russia and Iran—all of which, I regret to say, are not our closest friends—are laughing their socks off at the humiliation of the West, NATO, the US and us. The West, western values and western culture are no longer taken seriously around the world. This should deeply depress us all. Our Armed Forces are here to protect us and our interests. I think they have done a pretty good job over the years, but in my opinion this is the worst disaster that NATO has had in its existence. We won the Cold War—I sat in Germany for a year trying to defend the western alliance. The Americans had Vietnam, of course, but NATO is now exposed as weak and rudderless, I am afraid, and we should all address that.
With that in mind, I turn to my noble friend and say that the geopolitical situation has changed. The idea of reducing the Army by 11% and reducing the number of ships and aircraft that we can use is, in these times, absolutely bonkers, and we must revisit it. I pay tribute to the Government for increasing the amount of money they are spending on defence. Yes, what used to be called unmanned aerial vehicles and are now largely called drones are very important, as is AI, but we must have boots that we can put on the ground, ships that we can put in the sea and aircraft that we can put in the air. It is by that that we are judged by potential adversaries.
My Lords, I too welcome the Bill, which, in addition to sustaining the legal basis for our Armed Forces, brings with it some worthwhile innovations. Inevitably, though, its provisions tend to raise as many questions as they answer. It is on some of these loose ends that I wish to concentrate today.
One of the most controversial aspects of the Government’s approach to the Bill has, as we have heard, been their rejection of the recommendation in the Lyons review that cases of murder, manslaughter and rape committed in the UK should be tried in civilian courts except as agreed by the Attorney-General. I accept that there may be valid reasons for the Government’s decision. The military justice system will continue to have responsibility for dealing with such offences involving service personnel outside the UK, but our military footprint abroad has been reduced significantly in recent years so such cases will probably occur infrequently.
The military justice system may find it very difficult to sustain the skills and experience necessary to carry out its responsibilities overseas if it is unable to prosecute domestic crimes of this nature. If it is to do so, however, it must be demonstrably comparable to the civilian process. There is at the moment a very serious issue of credibility, which must be addressed. Conviction rates in cases of rape brought before service courts are significantly lower than for similar crimes tried in civilian courts. Why? Supporters of the Lyons recommendation might point to fundamental deficiencies in the service justice system. I suspect that the Minister would reject such a proposition but, if so, she needs to set out credible reasons for the stark differences in outcome between the two systems. Perhaps she could take the opportunity to do so this afternoon.
The inclusion of OR7 ranks in the list of those eligible for appointment as lay members of a court martial takes us closer to the idea of a jury of one’s peers, although not all the way. It does, however, raise the question of rank gradient. There is a tendency in the military for juniors to defer to seniors even when wisdom does not necessarily lie with the greater rank. This was in the past a significant issue in aircraft cockpits—not just in the military, I might add—and a factor in a number of avoidable accidents. It took a dedicated programme of training and cultural change across the entire aviation community to address the problem. Does the Minister envisage the need for something similar for lay members of service courts?
My final points concern Clause 8, which places a duty on “specified persons and bodies” exercising certain functions to have “due regard” to the principles laid out in the Armed Forces covenant. I welcome the intent behind this clause. It certainly represents necessary progress but it leaves a number of unresolved issues. The relevant functions that fall within the ambit of the Bill are restricted to housing, healthcare and education. These are undoubtedly the functions about which service personnel, veterans and their families are most concerned but, as we have already heard today, they are by no means the only areas of difficulty.
My other concern relates to the legal implications of Clause 8. As far as I can see, there are none. It requires the relevant bodies to have “due regard” to the provisions of the Armed Forces covenant but it does not specify any outcomes. There is nothing that could be effectively challenged in law, nor are there any potential remedies for a failure to comply with the provisions. The alternative—to specify particular outcomes—is not viable. What outcomes would one specify? In any case, it must be for those most closely involved to determine priorities. Veterans and their families should not suffer from their service, but that does not automatically place their needs above those of others.
So how are we to ensure that the very welcome intent of Clause 8 is delivered in practice? We cannot just rely on veterans to raise concerns. What formal avenues will be open to them? With whom should they register those concerns, and what processes of investigation and judgment would this trigger? In any case, most of those most in need, particularly those suffering from mental illness, will be just those least able to deal with the pressures and demands of an uncertain appeal process. Balancing the need for flexibility and local decision-making with certainty in enforcement is a challenge, but it must be faced if Clause 8 is to function effectively. A comprehensive and proactive audit process would allow us to assess the practical implementation of the clause and to develop recommendations for both closing loopholes and tightening application. Does the Minister agree that this is necessary if the Government’s worthy aspirations are to be given practical effect?
My Lords, I too congratulate our Armed Forces on their conduct in the evacuation from Afghanistan. During my national service—there cannot be many of us still around in Parliament—my command in Germany was a platoon of 30 men. From time to time, I was deputed to take a section of 10 men fully armed on the overnight train from Hanover to Berlin, with all blinds down, in order to maintain our right to travel from the British zone to the British sector in Berlin. Our limited training was for war and the maintenance of peace on the border with the Russians. I make this point to emphasise that our young men had no training in crowd control, let alone receiving babies in arms across wire fencing. I therefore congratulate them even more.
I once prepared a speech for your Lordships’ House detailing the history of British Forces fighting in Afghanistan. I did not make the speech because there were Welsh regiments fighting in Afghanistan at the time and we lost a large number of men, and many lives were permanently changed, including that of the commanding officer of the Welsh Guards.
I want to concentrate on the court martial system. I give notice that I intend to move an amendment to set up an inquiry into the merits of bringing the system into line with civilian courts without endangering military discipline. I first raised my concerns about courts martial as far back as 2017, following the case of Sergeant Blackman. The noble Baroness responded with a speed unaccustomed in the Ministry of Defence and announced an independent and more in-depth look at the service justice system. We are indeed indebted for the report of His Honour Shaun Lyons and Sir Jon Murphy. However, I fear that the report and the Government’s conclusions in the Bill are a missed opportunity to bring courts martial into line with our civil courts.
I am not concerned with the bulk of the work of the courts martial in their dealings with minor offences. The first point I want to make is that the Armed Forces are considerably smaller than in my day as a young soldier, and life in the forces for soldiers and their families is now much closer to life for their civilian counterparts. When I was Attorney-General, I set up a protocol that, if any difficulties arose in prosecutions, the differences should be finally resolved by the Attorney-General. I welcome Clause 7 on the role of the Director of Public Prosecutions; it places him in the senior role and, of course, he will be guided by the Attorney-General.
My concern is with the more serious offences of murder, manslaughter, rape and serious injuries. In the courts, in my professional life, I have had to deal with many of those. I suspect that they are in the minority of cases dealt with by courts martial, and probably quite rare. Judge advocates who preside over courts martial have only limited experience of dealing with such cases in their own courts, although, of course, they sit from time to time in the civil courts. The Bill empowers the Lord Chief Justice to nominate a circuit judge to preside over courts martial as only a minority of circuit judges are licensed to try murder and rape cases. May I be reassured that this power will be exercised in the same way whenever a circuit judge is nominated?
I come to my main point: the Secretary of State should set up an inquiry to consider bringing the whole system of murder, manslaughter, rape and serious offences into line with court procedures. Courts martial now reach their decisions by a majority verdict of their lay members. It is proposed in Schedule 1 that where there are three members of a court martial their decision can be made by a majority of two to one, and appropriately where there are other numbers. I do not think that a majority of two to one is fit for purpose in this modern age—or, as the Minister said as far back as 2017, when she set up the inquiry—as effective as it can be for the 21st century.
Why cannot our servicemen have the same rights as ordinary citizens and have a jury of 12 persons with the detailed control of a majority verdict, whereby it is set out in public how many people have voted one way for a conviction and how many have not? As I understand it—the Minister can confirm this—courts martial do not announce whether there is a majority or whether the verdict is unanimous. In all those circumstances, given the time available I wish to return to the issue in Committee so that we can have a definitive view on why soldiers cannot have the same privileges as their counterparts in civilian life.
My Lords, like other Members I welcome the Bill to the House. I want to briefly focus on two issues: healthcare for our Armed Forces veterans and reinvestigation into service personnel, an issue that my noble friend Lord Browne has already alluded to.
As has already been said, our Armed Forces do a remarkable job to keep the people of this United Kingdom safe and secure in an ever-changing and increasingly dangerous world. We owe them all a debt of gratitude for their courage and devotion to duty. The sacrifices of our Armed Forces at home and abroad must never be forgotten. Across the United Kingdom, there are 2.5 million veterans and it is vital that they are not simply left to fend for themselves once they return from active service. Our Armed Forces veterans continue to need support for housing, unemployment and vital public services such as improved healthcare. It is only right that those who have sustained life-changing injuries in the service of this nation should receive the best medical care available. When our brave men and women return from a tour of duty, many need assistance when reintegrating into society after the physical and mental challenges they have sustained while serving across the world.
Regrettably, too often the promises made have not matched the reality experienced by service communities, from poor housing provisions to veterans’ poor mental health and social care. We must continue to improve these services and, where we can, support sensible, practical and long-lasting protection for our military personnel. I fully support any legislation that will improve the lives of our forces personnel.
In return for their service, the Armed Forces should enjoy our strongest possible support as we work towards ensuring that our brave men and women get the best possible mental health and well-being provisions available, during and after their service. We must also ensure that, across the United Kingdom, they benefit equally—and in full—from the protection within the covenant. Regrettably, there have been attempts to block the full implementation of the covenant as it relates to Northern Ireland. All forces personnel and veterans across these islands should be able to avail equally of the same quality service, protection and support made available via the covenant. There should be no difference between the services offered in different parts of the United Kingdom.
I will focus briefly on equal justice; more especially, the matter of reinvestigation into service personnel. Operation Banner remains the longest continuous deployment in British military history. Without the bravery and long-lasting commitment of our security personnel, the reign of terror in Northern Ireland would have led to the deaths of many more innocent victims. Veterans and victims are searching for fairness and balance in how justice is served. Nobody is suggesting that military veterans, security forces or anyone else should be above the law or able to act with impunity. However, veterans rightly expect to be afforded natural justice and fairness.
Investigations into previous cases ought to be balanced. It is wrong that former members of the security services have been subject to different sets of standards and rules, despite the fact that 90% of the deaths during the Troubles were caused by terrorists. We have the unseemly situation where thousands of innocent victims of terrorist organisations have been denied justice. As we have done in the past, it is important to say again that we oppose any attempt to introduce an amnesty for criminal actions of terrorists or gangs. There should be no amnesty for anyone who perpetrated wrongdoing.
Broadly speaking, no legal or moral equivalence can be drawn between Armed Forces acting under the rule of law and terrorists who set out to murder and clearly acted outside the law. Affording some form of legal protection to Armed Forces in conflicts at home and abroad against repeated historical reinvestigation is one thing; the possible introduction of a blanket amnesty for anybody is another.
We all must work to provide the services and protections that are needed for our Armed Forces and service personnel. However, what recent discussions have there been with the Northern Ireland Executive on the full implementation of the military covenant in Northern Ireland?
My Lords, I too welcome the Bill and of course start by declaring my interest as a serving member of the Armed Forces, and so subject to it. I also fear I am a veteran of this process, having served on the 2006 committee and the 2010 committee, and been the Minister responsible in the House of Commons for taking an Armed Forces Bill through in 2016. Of course, the star turn of this Bill is the enshrining of the Armed Forces covenant into law. That is most welcome, although it brought a slight wry smile as I recall saying something similar before, when we were simply enshrining the requirement for the Secretary of State to report to Parliament each year. None the less, this is welcome. Like other noble Lords, however, I wonder whether it goes far enough.
I understand absolutely the Government’s argument when it comes to local authorities; they certainly want to hold them to account while not necessarily restraining them in how they should enforce the covenant. Focusing on healthcare, housing and education is the right thing to do but, at the same time, if I am true to myself, I recall slightly irritating my noble friend Lord Robathan when he was the Minister back in 2011 by proposing a Back-Bench Conservative amendment in Committee that pensions should be added. At the very least, I feel that a role for this House as the Bill progresses will be to explore to what should be included in the military covenant.
Linked to that, since a Second Reading is about what should be in the Bill, there is also potentially a missed opportunity here with the Veterans Advisory and Pensions Committees. As noble Lords know, these are 13 regional committees which advise, advocate and assist. They are very much a conduit between the MoD and helping veterans in the regions, but their role is very much governed by law. There has been talk for some time about whether we should be updating their role, yet we have not done it. As we bring the Armed Forces covenant into law, why are we not looking at those committees? They are desperate to do more. Why are we not allowing them to do more, when it would help us as the Armed Forces covenant is enshrined in law?
It would be wrong, however, not to recognise the progress that has been made in recent years in the world of veterans. Not least, there is the creation of the veterans’ gateway and the one-stop shop of the Office for Veterans’ Affairs. Even last year, we saw for the first time in the census the question about whether or not veterans should be included.
I too want to say a couple of words about indefinite leave to remain. I declare my interest as colonel commandant of the Brigade of Gurkhas. I have lobbied the Government on this issue and know that it was out to public consultation, but I would be grateful if my noble friend the Minister could update us on that. I urge a word of caution to the noble Lord, Lord Dannatt, when it comes to Gurkha pensions. We are comparing apples and pears. The Gurkha pension from 1948 enabled a Gurkha soldier to receive an immediate pension after just 15 years’ service, meaning many Gurkhas received a pension from their early 30s for life. A British soldier at that time had to serve 22 years; had they served 21 years, they would get not a penny. Be very careful when calling for equivalence between those two schemes: they are quite different.
I am particularly pleased about Clause 9, which brings in continuous service for the Reserve Forces. I declare my interest as over the last year, I have been chairman of the Reserve Forces review. The headmark is the integration of the reserve and regular forces. We have a vision of a spectrum of service whereby, on the right of the arc, we have a civilian working in industry and we can bring their skills through reserve service into the military. On the left of the arc is full-time service in the Armed Forces, and we enable the individual through their service career to move along that spectrum. This clause removes some of the obstacles preventing that. Terms and conditions of service for both regular and reserves are quite different. In the same way that the 2006 Act brought together the three single service Acts, there are some who call—and I am probably one of them—for the bringing together of the Armed Forces Act and the Reserve Forces Act into a single piece of legislation, as that will enable further integration.
Finally, I want to offer one word of caution, which I have mentioned before. I declare another interest—this is a very happy interest—as colonel commandant of the Cayman Islands Regiment; I look forward to going to visit them soon. I fear we made a mistake last time by excluding Gibraltar from the Act, and it is excluded again from this Bill. Shortly after excluding it, we had the airport incident in Gibraltar and, because of a misunderstanding about whether this Act applied, three members of the Armed Forces were arrested and there is still rancour there. Yes, Gibraltar has now passed its own Armed Forces Act, but as soon as we pass this Bill, Gibraltar will be out of kilter again. I simply do not understand why it, like other overseas territories, cannot be included in this Bill.
My Lords, I am pleased that additions are to be made to the Armed Forces covenant. I know that the Royal British Legion and other forces charities have raised points of substance and I wish to be helpful in tabling and debating suitable improvements.
As the noble Lord, Lord Astor of Hever, mentioned, as Minister he introduced the covenant in the 2011 Act. It added two sections about the annual report, and they were to be inserted, almost as a postscript, into a miscellaneous part of the 2006 Act. I objected to this de minimis approach. First, it did not seem to accord with the importance that Prime Ministers and many others then attributed to the concept of the covenant. Their fine sentiments deserved better visibility in legislation. Secondly, two new covenant sections followed immediately: Section 359 dealt with posthumous pardons for servicemen executed for disciplinary offences in World War I—an unfortunate juxtaposition of veteran treatment. My proposed amendment was resisted but, after protracted discussions, by Third Reading the Government decided that the covenant deserved better treatment and should be given its own separate and distinct part, where it now sits as Part 16A. The Government tabled the relevant amendment but, graciously reflecting my persistence, the Minister asked me to speak first to move his own amendment. Clause 8 of today’s Bill builds on that modest beginning.
When the 2011 and 2016 Bills were debated, I commented that they were large, cumbersome Marshalled Lists for the latest version of the 2006 Act. This 2021 Bill is even larger. There are over 85 insertions of substance and five pages of concurrent jurisdiction— no less than 10 for the Armed Forces covenant—and 15 pages of schedules. When it was introduced in 2006, the Bill was over 340 pages long. Now it is close to 400, thanks to the 2011 and 2016 Acts. I asked in 2011 and again in 2016, without answer, why the Government did not introduce the Bill in the form in which they wished it to be enacted, replacing the 2006 Act in toto. It might be a 400-page Act, but the Bill before us is over 50 pages. Future quinquennial reviews could be considering 50 pages of amendments to a 500-page plus, and growing, 2006 Act.
It might be possible, if the Bill were to be a new one, to tidy up the presentation. It has a plethora of parts, chapters and miscellaneous add-ons. The 2006 Act, which was an amalgam of the single service legislation, was a brand new Bill, replacing the single service Acts: a departure from the quinquennial amendments of past Acts. Is there any reason why this legislation, at least in the future, bearing in mind it has passed in the other place, could not be tabled as a complete Bill? It would be more readable and comprehensible, compared with the cross-referencing now required. Maybe this time the Minister will be able to respond.
The thrust of new Chapter 3A in Clause 7, in particular protocols for directors of prosecutions to follow and arrangements to approve their alteration, worry me. I remain concerned that the march of disciplinary legislation for the Armed Forces has the unintended but most unfortunate implication that Parliament and the Government harbour a lack of trust in the higher ranks of the chain of command and the military courts martial system. Yet trust in the chain of command, both upwards and down, is of crucial and overriding importance to the very life and fighting resolve of the Armed Forces. So too there should be no unintended inference that courts martial, which are an essential part of the Armed Forces disciplinary structure, are inadequate or failing. One should look rather at what steps might be taken to counter or dispel any such impression.
These new protocols are ill-defined. Could not different versions be approved for England, Wales, Scotland and Northern Ireland? The view of the service prosecutor may be overruled by the Director of Public Prosecutions, the Lord Advocate for Scotland or the Director of Public Prosecutions for Northern Ireland, as the case may be. The prosecutors are only required to “consult” the Secretary of State, presumably the Defence Secretary, and other named bodies, which differ in each jurisdiction. Is “consult” strong enough to avoid or prevent different approaches to these protocols? Is there a danger that one or more of the final civilian arbiters of the protocols may be personally averse to courts martial, being inconsistent, in their view, with a fair and efficient justice system? What may not be a worry now might be in the future without some strengthening of the protocol arrangements. Is it right that the disciplinary structure of the Armed Forces should be a devolved matter? Is this Bill not a further diminution of courts martial? I look forward to some reassurances from the Minister in winding up the debate.
My Lords, it is a great pleasure to follow the noble and gallant Lord, Lord Craig of Radley, who made some very good points in his excellent speech. I thank my noble friend the Minister for introducing this Bill and explaining its purposes. We tend not to debate often enough our Armed Forces and the proportion of our national income that they consume. The historical requirement to pass an Act every five years to maintain a standing army ensures that Parliament has more opportunities to debate the state of our Armed Forces than would otherwise be the case. It is particularly welcome that the Bill seeks to strengthen the Armed Forces covenant, which contains the Government’s promise that servicemen and women should not be disadvantaged in any way by their service and that special consideration may be appropriate on occasion, especially for those injured and those who have lost close family members.
It is good that the Bill makes provision for a new legal duty for public bodies to give due regard to the covenant. However, this applies only to local councils and some limited public bodies delivering housing, health and education. Could the Minister please tell the House why the Government and the devolved Administrations are exempted from this duty? Could she also explain why the list of relevant functions covered is so limited? It includes only housing, education and healthcare. The Royal British Legion, together with many other service charities, is asking for the duty to be extended to employment, pensions, compensation, social care, criminal justice and immigration, among other topics.
It is welcome that, with the Bill, the Prime Minister can rightfully claim that he has honoured the second of the three commitments together described as his “veterans pledge”, which he made in his letter to the Sun of 11 July 2019, to enshrine the military covenant in law. The first commitment was:
“To create an Office of Veterans Affairs within the Cabinet Office”.
The third—outstanding—commitment was to introduce legislation
“to end repeated and vexatious investigations into historical allegations against our servicemen and women—including in Northern Ireland”.
I recognise the highly sensitive and difficult nature of achieving this third objective, and I welcome the Government’s Command Paper, published in July, which I think all will agree constitutes progress. It points out:
“The decreasing likelihood of successful prosecutions is supported by evidence, which shows that between 2015 and 2021 just nine people have been charged in connection with Troubles-related deaths.”
It also notes that
“of these nine, just one person has been convicted.”
In particular, proposals for a statute of limitations, which would bring an immediate end to the divisive cycle of criminal investigations and prosecutions, would successfully deliver the Prime Minister’s third objective. Can the Minister tell the House more about the timescale to which the Government are working to achieve this?
As honorary air commodore in the No. 600 (City of London) Squadron of the Royal Auxiliary Air Force, I welcome the provisions introduced by Clause 9, which recognise and give effect to the fact that reserve or voluntary service today comes in many different shapes and sizes and that the legal framework required to support that needs to be much more flexible than has been the case in the past. The “whole force” concept, which blurs the distinctions between regular and voluntary service, also requires modification to the legal commitments required of our service personnel. My noble friend Lord Lancaster spoke wisely about this matter. It is right that reserve personnel are subject to service law for the entire time that they are in service, under continuous service commitments.
Together with other noble Lords, I am full of admiration for the loyal and tireless service given by all those involved in Operation Pitting. Nevertheless, I also agree with the moving speech of my noble friend Lord Robathan, who is not in his place. He was surely right to say that the badly damaged reputation of NATO, as a result of the Afghanistan debacle, means that now is absolutely not the time to make cuts to numbers of military personnel, ships or aeroplanes.
I take this opportunity to ask my noble friend the Minister whether she will also commend the great contribution made by the Reserve Forces to Operation Rescript, in combating the Covid-19 pandemic, which would otherwise have wrought even greater havoc on our lives. I welcome the Bill and look forward to supporting my noble friend in taking it through your Lordships’ House.
My Lords, the Minister started the debate by saying that our Armed Forces are the best in the world. I am proud to serve as an honorary group captain in No. 601 Squadron in the Royal Air Force.
Clause 8 of the Bill would make further provisions for the Armed Forces covenant. I will quote the covenant. It is the nation’s commitment to
“acknowledge and understand that those who serve or who have served in the armed forces, and their families, should be treated with fairness and respect in the communities, economy and society they serve with their lives.”
The House of Commons had its Second Reading on 8 February this year, and many MPs spoke about Clause 8, criticising it for not going far enough in strengthening the covenant. The shadow Defence Secretary said that it was a “missed opportunity”. The Royal British Legion was quoted as well—I am privileged to be chairman of the Memorial Gates Trust, and the Royal British Legion is our partner. The Memorial Gates commemorate the service and sacrifice of the 5 million volunteers from south Asia, Africa and the Caribbean who served in the First World War and Second World War. The problem with this is that it could lead to a two-tier covenant. A committee said that the Bill falls short of what it ought to be and it must have due regard to the covenant itself—it is too weak because it is local and not national. Will the Minister explain why it is not national but only local?
As noble Lords have said, any person with citizenship of a Commonwealth country—other than the UK, of course—who served for at least four years is to be exempted from visa fees. This also applies to those who served for at least four years in the Brigade of Gurkhas. However, there is a shameful scandal: Commonwealth personnel face a fee of £2,389 per person to continue to live in the UK after having served for at least four years, and, to add to this, they are given less than a month—28 days—in which to pay this. This leaves many of them in financial ruin. A suggestion has been made that all they should pay is £204, which is the fee for indefinite leave to remain, instead of £2,389. Does the Minister agree that this should be implemented? The Government say that they are listening to this.
It has been suggested that those of the Afghan special forces who have come to the UK could be absorbed into the Armed Forces and made into a regiment like the Gurkhas. Will the Minister confirm that this has been considered? After all, the bravery that those Afghan troops have shown in the evacuation—going out into the crowds outside the airport, risking capture at Taliban checkpoints—has been absolutely amazing. In the past two decades, the UK special forces have worked alongside the Afghan units, such as Commando Force 333. My friend Tom Tugendhat, the chair of the Foreign Affairs Committee, said:
“We trained and fought alongside many Afghans who are now in the UK. They've proved their loyalty a thousand times. If they want to serve, we should welcome them. I would love to see a regiment of Afghan scouts.”
We must remember that, sadly, 457 people from our country gave up their lives and more than 2,000 were injured in the Afghanistan conflict over the past two decades.
I will conclude by talking about the Gurkhas, of whom there are 4,000 in the British Army. They have served over here for over 200 years. This year is the 50th anniversary of the country of Bangladesh. My late father, Lieutenant General Bilimoria, commanded his battalion of Gurkhas—the 2nd 5th Gorkha Rifles (Frontier Force)—in the liberation of Bangladesh. His battalion received three Victoria Crosses in the Second World War. My father ended up being colonel of his regiment, president of the Gurkha Brigade in India and commander-in-chief of the central army. He commanded his battalion with pride. The person who took over from him as commander of the regiment, Major General Cardozo, has recently written a book, 1971, about the 1971 operation. Field Marshal Sam Manekshaw was the chief of the Indian Army at the time, and, referring to the Gurkhas, he said:
“If a man says he is not afraid of dying, he is either lying or he is a Gurkha.”
We had a sad situation recently where three Gurkhas, representing Gurkha veterans, went on hunger strike outside Downing Street; fortunately, it was called off. It was to do with the pensions that noble Lord, Lord Lancaster, spoke of. My friend Joanna Lumley, who fought so hard with us to give Gurkhas the right to stay over a decade ago, has also urged the Government to meet the brave and loyal Gurkha veterans staging the hunger strike. I ask the Minister: are the Government doing all that they can to resolve the Gurkha pension situation, which seems so unfair? They say that the cost is £1.5 billion, but I would go so far as to say that there is no cost: the contribution of the Gurkhas has been absolutely priceless.
I conclude with this: we must never ever take for granted our beloved Armed Forces, our respected services, which are the best of the best. We will always owe them a debt of gratitude, and that is the covenant that is testament to this.
My Lords, I am grateful to my noble friend the Minister for explaining the purposes of her Bill. Like many others, I am convinced that the system of the quinquennial review, coupled with an annual renewal, is the right one.
When we have just been defeated in a major overseas military campaign, I do not believe that the usual channels have served this country or the House well by providing us with only five minutes of speaking time to deal with all the G1 matters in defence. Unlike my noble friend Lord Lancaster, I no longer have to declare any interest as a reservist, but I have been subject to service discipline, have exercised summary jurisdiction and have once been subject to summary jurisdiction myself. With hindsight, I realise that it was rather more to do with accounting for a lost camp bed than anything I might have done wrong. However, it was in the mid-1970s. Importantly, I have also served on a court martial a few times.
I have three issues to raise. The first is about opening up the membership of the board of the court martial to certain senior NCOs of OR7 rank, which may have unintended and undesirable effects. It might sound a bit more democratic, but the board is not synonymous with a jury—it is a tribunal. Before starting their training, commissioned officers were very carefully selected for having suitable innate and learned characteristics and capabilities. Warrant officers will also enjoy those characteristics in large measure, and they are already permitted to be on the board. It was only when I became a major and a company commander that I dared to suggest to the RSM that he might do something differently or better. My worry is not that a staff sergeant or equivalent might be too lenient but rather the other way: he or she might not have much sympathy or understanding of a weak or poor-quality serviceman. He or she might also lack the wider knowledge and education of an officer or warrant officer. Furthermore, they may lack the capability of standing firm against a judge advocate who advocates a relatively severe punishment against the wishes of the board, a point touched on by the noble and gallant Lord, Lord Stirrup.
My second issue relates to Clause 7 and follows on from the comments of the noble Lords, Lord Coaker and Lord Thomas of Gresford, and others, including the noble and gallant Lord, who raised the issue of suspicious deaths, rape and sexual assault and any related investigation, prosecution and litigation. I do not believe that the service police or the court martial system are well placed to deal with these matters, as some arise so infrequently while others are extremely difficult to investigate and determine. Moreover, there will always be a suspicion of a cover-up, no matter how unfounded the suggestion is. It would be much better to hand these matters over to a Home Office police force immediately, or as soon as possible, and then exclusively use the civil criminal justice system.
My final point concerns inquests related to deaths on overseas operations. The lawyers, who members of the Armed Forces absolutely love, would argue that we need the inquest system to identify what has gone wrong and prevent a repetition. I suggest that that is a delusional view. If there is a technical failure leading to death, especially with ECM matters, the feedback loop can operate within days. If it is an equipment, tactics or training issue, that weakness is fed back into the training system and to the staff. The idea that an inquest, taking place perhaps 18 months later, is going to add to or improve the process is ludicrous. All it would do is to tie up the staff to no useful effect. As I told your Lordships during the debate on the Chilcot report, the attention paid to each individual fatality incurred on operations is inversely proportional to the number of such casualties.
Media reports of those inquests are an absolute gift to our opponents, who can use them to encourage their own members to take the risk of making further attacks on our people and our friends. These reports could also create a lack of confidence within our own servicepeople and the wider public. I am afraid that the hard fact of life is that “hot” overseas military operations are bound to involve fatalities and serious injuries. The other hard, delicate and unpalatable fact is that the victim—or his or her comrades—is sometimes, sadly, the author of the tragedy. Quite understandably, and for obvious reasons, the MoD and the staff will never make this clear at any inquest. Therefore, there is little chance of the inquest coming to the correct verdict in many of these cases.
I intend to return to these issues at a later stage and will provide strong support on the Clause 7 issues.
My Lords, in rising to speak to the Armed Forces Bill, I can only contextualise our debate, as so many other noble Lords have, with the dreadful events in Afghanistan and the continuing desperate efforts of people who have supported and served with our Armed Forces to escape the country where their lives remain in severe danger. I acknowledge the impacts, as so powerfully outlined by the noble Baroness, Lady Brinton, of these events on so many who have served there recently and who have served there previously. I share concerns expressed by many noble Lords about inadequate funding and levels of services for veterans and current servicepeople, particularly mental health services.
Many noble Lords have expressed concerns, which I share, about the failure of the Government to adopt the recommendation of Judge Lyons on the treatment of murder, manslaughter and rape charges, and particularly well-highlighted concerns about the management of rape and sexual assault cases. I do not feel that I have a great deal to add on that issue; the view of the House is already very clear. The statutory application of the military covenant to local government but not central government is another area in which the view of the House is very clear. Furthermore, I commend the right reverend Prelate the Bishop of St Albans, who is not in his place, on highlighting the issue of problem gambling. I ask the Government, as he did, whether they have at least planned an examination of the issue. To be fair, I want to commend the Government on the measure in the Bill to right previous wrongs against LGBTIQA+ servicepeople.
I want to devote my speech to raising two issues, which I do not believe that other noble Lords have raised. The first is child soldiers. It is estimated today that the number in the world ranges from 250,000 to 300,000. The United Nations has an International Day Against the Use of Child Soldiers, also known as Red Hand Day. The UK is remarkably silent in international venues on this issue, when we are outspoken on so many other related issues—and we know why. It is because we have child soldiers. This Bill is a lost opportunity to end the practice of recruiting children into the UK’s Armed Forces, as a coalition of 20 human rights organisations called for earlier this year.
I suspect that many Britons would be surprised to know that one in five new military recruits are under 18, a ratio that rises to one in four in the Army, which recruits more 16 year-olds than any other age, particularly into infantry roles. This argument has been rehearsed over many years, but we are now in a very different situation, given that continuation of education for 16 and 17 year-olds is now standard even among the most disadvantaged groups, where four in five continue in education.
Nearly one in three underage recruits leave the Army or are dismissed. They have left their education early to join up, unlike their peers, and then they are immediately out of a job and not in education. So I have a question for the Minister. Are they covered by the military covenant, and what special provision are the Government making for their obviously very high needs? Have the Government any plans for a reconsideration of the recruitment of child soldiers?
I note the disturbing figures obtained by the SNP MP Carol Monaghan that girls under 18 made at least 16 formal complaints of sexual assault to the Military Police in the last six years—equivalent to one in every 75 girls in the military. That brings me to the second main issue I want to address. Women are about 10% of our full-time military, more than 15,000 in number: a significant minority, serving in virtually all roles and functions, but still very much a minority, bringing in their different experiences from a discriminatory society, subject to particular issues in service life and afterwards. I commend the work of Salute Her in highlighting this issue and the need for specialist support services, with women veterans having experienced significantly higher rates of adverse childhood experiences than civilians: 38% of women veterans report military sexual trauma and 33% of women veterans have experienced intimate partner violence, compared with 24% of non-veteran women.
Since we are addressing the place of our military, I must also raise one broader issue, given the timing of this debate: the role of our Armed Forces being closely interrelated with our arms industry. Indeed, we are speaking now as we are about to see arms fairs in the UK not very far from this place. Our military is working with our arms industry to pump weapons out into a world that is already awash with them. This weekend I will be joining many on the streets to protest and call for an end to such promotion of a dangerous industry that threatens the security of all of us.
I think there is one final question—I suspect that the Minister will not have this in her briefing, but I hope she might consider responding to me afterwards in writing. In that industry since 2008, export licences have been allowed for £150 million-worth of weapons to go to Afghanistan. Can the Minister tell me how many of those weapons are now in the hands of the Taliban—and useably in the hands of the Taliban?
My Lords, I join in welcoming the Bill and paying tribute to the Armed Forces, but I do reflect that, while we make a tribute to the Armed Forces, during the time of Covid the Government made tremendous efforts to get people off the streets. I claim no great role in that, but I did notice the huge number of ex-military personnel who are homeless, who felt left out of society, who were sleeping on the streets and who were part of that homelessness.
I must also say that, as someone who has had a fair amount of dealings with the United States and its legislative assemblies, we pay far less attention to our military than they do in the United States. To be an ex-soldier in the United States is an honourable situation. To be an ex-military person in Britain is something that is referred to from time to time with warm words but seldom followed up very effectively. So one thing I hope can come out of the Bill, the covenant and what follows, is a more humane look at the need to deal with post-service life as well as service life, and to face up to the problems that one gets.
If we are running a military operation, we should be clear what we are doing. We are operating a killing machine. The main purpose of an army is to go and kill people, and, if you bring people into that sort of situation, you get throwback in the sense of not only post-traumatic stress disorder but enormous pressure on people and the way in which they see the world. We have to face up to that. I spent a long time, as some noble Lords know, in the European Parliament and I was for some years vice-chair of its Security and Disarmament Committee. We used to go to NATO and, when it existed, the Western European Union and talk to people from all over Europe. It was very clear, talking to some of our Nordic friends, that they did not want to get their soldiers anywhere near military action that would involve killing the opposition—and they did not want it for quite good psychological reasons. I make this point because I think we sometimes romanticise this, saying “Oh, yes, Tommy soldier, great person”. I cannot remember the quote, but Kipling made it and we all know it: sometimes we love them, sometimes we don’t, but mainly we forget them. I think we need to remember that.
We also need to come to terms with the fact that the whole nature of warfare is changing. While 100 years ago the idea of mass killing was accepted—“Over the top you go” at Ypres or the Somme—that would never now be acceptable. Time has moved on. I predict that we are coming to the end of military operations as we have known them up to now. Afghanistan may well turn out to be the last big operation of its kind, and maybe we are moving forward to operations where drones and targeted killings are much more the case. Let us be honest: it is much easier to sit in a bunker in Lincolnshire and destroy someone on the ground in the Middle East than it is to face them across 300 yards or 300 metres of desert.
So I put it to the Minister, not as part of this Bill but as a consequence of this Bill, that we need to come to terms with how we deal with ex-service personnel, many of whom have severe mental problems partly caused by the situation in which, you can say, they have put themselves, but actually in which we have put them. We owe a duty of aftercare, and if there is one thing that Covid taught me, it is the huge number of people in society, on the streets, who come from a military background. I was actually shocked to learn how many, as a percentage, there were. I notice my good friend opposite—I am not sure whether I am allowed to call her a friend—the noble Baroness, Lady Smith, who lives in Cambridge, the same city as I do. Much of my evidence came from there, where the Government gave Cambridge City Council money to get people housed and people were still on the streets. I spoke to some of them and went round with some of the welfare workers, and I discovered a shocking level of mental incapacity that we also need to tackle.
My Lords, I am the last Back-Bench speaker in this important debate and I will confine myself to one clause, Clause 18, to which some reference has been made but which I would like to talk about a little more fully. Clause 18 redresses, as far as is possible, the hardship and suffering inflicted in the past on gallant servicemen who happened to be homosexual. I speak not only for myself but also for my noble friend Lord Cashman, who cannot be in his place today, and for our indispensable colleague, Professor Paul Johnson of York University, who has a fuller understanding than anyone else of the laws which, over the centuries, created hardship and suffering for homosexual servicemen.
Five years have passed since the three of us called for the action which Clause 18 will at last now authorise. Back in 2016, during the Committee stage of the Policing and Crime Act, which became law in 2017, provision was made through amendments passed in this House to grant posthumous pardons under certain conditions to individuals convicted or cautioned for certain offences that have now been swept from the statute book. I pointed out in December 2016 that the legislation would not make adequate provision for the Armed Forces. Pardons were made available for offences now repealed under civil law going back to the famous Henrician statute of 1533, but for service offences only the period since 1866 was covered. It goes without saying that all families who want justice for homosexual forebears or relatives should have the same possibilities of redress made available to them.
Some improvement was made in the final stages before the 2017 Act became law. Posthumous pardons for naval personnel were extended back to 1661, but in the time available it was not possible for Professor Johnson to locate all the relevant statutes under which homosexual servicemen suffered for so long. After additional work had been carried out, further legislation to accomplish what had been left undone in 2017 was drafted in the form of two Private Member’s Bills which the noble Lord, Lord Cashman, introduced in this House. Clause 18 represents the completion of a long process for which my noble friend the Minister and her officials deserve sincere thanks. It has been a formidable undertaking. The clause covers a period in which some 300 separate enactments, comprising the annual Mutiny Acts and Marine Mutiny Acts as well as numerous iterations of articles of war, regulated the Army and Royal Marines. We do not know how many servicemen were convicted or punished for engaging in same-sex sexual conduct which would be lawful today. Whatever the number, a posthumous pardon will, so far as is possible, acknowledge and address the grave injustice done to them and wipe the stain of that injustice from their memory.
I would like to say that Clause 18 ends the matter. Unfortunately, it does not. These posthumous pardons cover only those convicted of civil offences under service law. Many Armed Forces personnel were convicted under specific service discipline offences, such as the offence of disgraceful conduct, for engaging in consensual same-sex acts which would be lawful today. Again, we do not know the number, but it is substantial, and for every one of that number a career was damaged or destroyed. Service discipline offences are not covered by the current pardon and disregard schemes first introduced in 2012. Why should the brave people harmed by them be excluded from such measures of redress as have been belatedly devised to help restore the reputations of the unjustly condemned? I intend, therefore, with the noble Lord, Lord Cashman, to table amendments in Committee to address those further historical injustices.
My Lords, from these Benches as from the Opposition Benches, I support this Bill. As we have already heard, this is the once-every-five-years Armed Forces Bill, following very swiftly on from the annual Bill to ensure that the Armed Forces continue and quite swiftly on from the overseas operations Bill. In recent weeks and months, we have therefore had the opportunity to talk quite frequently about the Armed Forces and as much about our duties to them as about theirs to our country.
I welcome this Bill and certain aspects of it in particular, but as many noble Lords have pointed out, there are some aspects which could go further and some aspects on which we will certainly move amendments. Some will be probing and others very much will not be—they will seek to change the Bill.
While this is in many ways a welcome Bill, which clearly has support across the Chamber—with the partial exception of the noble Baroness, Lady Bennett of Manor Castle, who had a few more caveats than the rest of us—there are two areas where we will want significant change. The first is service justice and a change to Clause 7, while the other is aspects of the Armed Forces covenant.
I do not propose to rehearse the comments made by my noble friend Lord Thomas of Gresford; the reason I asked him to open for the Liberal Democrat Benches was because I knew that he had the expertise to talk about military justice that I absolutely do not. Please take it as read that I am in complete agreement with everything he said, and that is very much the Liberal Democrat position. Any amendment that my noble friend proposes we will support, but that very much fits with comments that we heard from across the Chamber, including from the noble and gallant Lord, Lord Stirrup.
There are questions about why one aspect of the Lyons review was not brought into this Bill. If the Minister is unable to give satisfactory responses on why military justice should differ from civil justice in the areas of rape, murder and manslaughter, a series of amendments will be brought forward. Whether that is in the form of the inquiry proposed by the noble Lord on the Labour Benches or of a series of explicit amendments, something needs to be done to ensure that everybody receives justice—the women who, as my noble friend Lord Thomas pointed out, currently do not receive justice or the service people against whom the allegations are brought. If incorrect or poor decisions are made, that clearly is not right either for the perpetrator or for those against whom offences are committed. We need to ensure that justice is brought for everybody.
I want to talk in particular about Clause 8 and the Armed Forces covenant. Before I do, I pay tribute in his absence to the noble Lord, Lord Cashman, and the noble Lord, Lord Lexden, for their efforts on posthumous pardons. We obviously welcome Clause 18 and will listen to the amendments that they will bring forward.
A key part of this Bill, and where it differs from previous Armed Forces Bills, is the focus on the Armed Forces covenant; all Members are committed to it but there appear to be questions about how far it goes. It is obviously welcome that it is being put on a statutory footing, but what good does that do? As the noble and gallant Lord, Lord Stirrup, implied, there are no clear legal implications from the duty to have due regard in the areas of health, education and housing. Can the Minister tell the House what that might mean in practical terms?
The phrase “due regard” sounds good and legalistic, but what does it mean in practice? We can say to service personnel who are looking to their future, “It’s fine. The Armed Forces covenant is enshrined in law. The local authority will have to give due regard”. However, if the local authority says, “We have no funds—we can’t make any difference. We’ve paid due regard, but the Covid crisis has left us almost bankrupt. We can’t do anything”, what will central government do about that? I say as somebody who was on Cambridge City Council as a portfolio holder, including for customer services and resources for some years, that there is a tendency for Governments of whatever political persuasion to give duties to local authorities. They may give a small amount of money, but it never covers the cost of what is required.
The areas in the Bill on the Armed Forces covenant are very much ones where local authorities are already under pressure. What will the Government do to ensure that local authorities and public health bodies will be able to do anything more than pay lip service to the duty to have due regard to health, education and housing? As the noble Lord, Lord Balfe, pointed out, veteran homelessness is a significant issue. What support will local authorities be given to deal with that aspect of the covenant? A lot more work needs to be done in the Bill on those areas, and I propose to table amendments on the financial aspects.
However, as several other noble Lords have pointed out, we see the duty to have due regard only at the local level, not at the national level. What assessment have the Government made of creating a duty for themselves to pay due regard to the Armed Forces covenant? Are there particular departments of state that could be looking at the Armed Forces covenant? Should those educational duties be on local education authorities or should the Department for Education be doing something? What is happening at the UK level? What should be happening at the Scottish, Welsh and Northern Ireland levels?
In addition to the aspects on the face of the Bill, like my noble friend Lady Brinton I raise the issue of PTSD—a very particular aspect of the health, particularly mental health, areas of the Armed Forces covenant. This puts it very much in the context that the noble Lord, Lord Coaker, talked about in his opening remarks, as did the noble Baroness, Lady Bennett. This Bill must be seen in context. We can see that context in a general way or a very specific one. The general way is, as the noble Lord, Lord Robathan, sought to do—to say that this has been a military disaster and that we in the West are being laughed at. There is a case for looking at the UK’s role in Afghanistan and our role with NATO, but I do not believe that that is for this debate or this Bill. There are lessons to be learned, but they are not issues that we can deal with in this Bill.
What we can do is think about the veterans of Op Herrick and Op Pitting and the service men and women who have been involved, because we have a duty to all of them. As my noble friend Lady Brinton pointed out, the danger is that recent events in Afghanistan are triggering our service veterans, who have in many cases been on several tours of duty there. Can the Government commit to putting more resources into ensuring that PTSD can be treated, and that veterans and current service personnel can be looked after as quickly as possible?
I have no service background, but in the last three weeks I have talked to people who have been involved with the UN, the British Council and our Armed Forces. Talking to people with hands-on, personal experience of those who are currently at risk in Afghanistan is incredibly moving because they are so concerned about the people now at risk of losing their lives—people they have worked alongside and who have worked for them. They feel a personal responsibility, in the way that we as a country and the Government, as responsible for the Armed Forces, all have a duty to the service personnel, as well as to those we are evacuating from Afghanistan.
My final plea is for the Government to think about extending the Armed Forces covenant to those who have come out of Afghanistan under ARAP, and maybe even those who come through the second tier. If that is to be done, I make a further plea on financing. We have already heard the impassioned pleas from my noble friend Lady Garden about widows’ pensions—a very small number, but it would make a huge difference—but the Government have said they cannot do things retrospectively. We have also heard impassioned speeches from the noble Lords, Lord Dannatt and Lord Bilimoria, about the Gurkhas. If we have not been able to look after those people, we will not be able to look after those who will come from Afghanistan, unless we put the resources in. Could the MoD please think about that? If we do not do that, Operation Warm Welcome will be merely warm words and will not deliver. We owe it to our service men and women, and to those whom we are liberating and bringing back from Afghanistan, to ensure that we give them the warmest of welcomes. We must honour our service personnel, as we all owe them a great debt.
My Lords, this has been an excellent debate, demonstrating not only the wealth of service experience in our House but how all Peers want to work together to get the best for our service communities. Personnel, veterans and their families are a source of great pride for our country and their professionalism is respected across the world. I know many will join me in thanking them for their past and ongoing service, especially those who have been involved in the evacuation in Afghanistan in recent weeks.
As my noble friend Lord Coaker outlined at the start of the debate, we will seek to improve this legislation. We support the Bill’s main principle and welcome steps for the creation of a legal duty of due regard to the principles of the covenant and the implementation of elements of the Lyons review. I have been struck by the cross-party support for the issues my noble friend outlined at the start of the debate: widening the scope of the legislation to ensure that all areas of potential disadvantage are addressed; ensuring a two-tier Armed Forces covenant is not created; including central government on the list of public bodies which must take on the new responsibilities; and giving civilian courts jurisdiction in matters of murder, rape and serious sexual offences committed in the UK.
As we have heard, these priorities reflect the main calls and concerns from service charities. The Royal Air Forces Association said the Bill misses an opportunity to enact the Lyons recommendations, the Naval Families Federation called for widening of the Bill’s scope to include all aspects of the Armed Forces covenant, and the Royal British Legion stated that the list of public bodies subject to the due regard duty should be widened to include national government. We are listening and responding to service charities, so why are the Government not?
The Government have not maximised this legislative opportunity to fix other important issues which continue to blight personnel and veterans. These focus on investigations, visas for Commonwealth and Gurkha veterans, an Armed Forces representative body, and examining dismissals and resignations based on sexual orientation and gender identity.
First, we have heard throughout the debate that issues surrounding repeated and shoddy investigations remain. Noble Lords tried to settle this in the overseas operations Bill; there was a clear consensus in this House that the Bill, now an Act, did not do what was promised to protect British personnel serving overseas from vexatious legal claims and shoddy investigations. There was cross-party support for a duty of care to support troops facing investigation, as well as for conditions to be set on investigations to ensure timely, not time-limited, investigations. I remind the Minister of her words during ping-pong, when she gently encouraged the noble Lord, Lord Dannatt, not to press his duty of care amendment, saying that if he was to
“bring back this amendment in the Armed Forces Bill … this House will no doubt debate the issue further. I look forward to continuing these constructive discussions”.—[Official Report, 28/4/21; col. 2347.]
So here we are. I hope the noble Lord will be inclined to bring back this amendment, which we strongly support.
Next, the Government should have made provision in the Bill to stop Commonwealth and Gurkha veterans being subject to eye-watering fees to remain in the country they have served. Under the current rules, Commonwealth personnel face a fee of £2,389 per person to continue to live in the UK after having served for at least four years. It means that someone with a partner and two children could face a bill of almost £10,000 to stay in Britain. We believe that this is dishonourable, unfair and certainly no way to repay their bravery and sacrifice.
In May, the Government announced a consultation that would waive visa fees for those who had served for 12 years or more, but this would apply to just 20 of the 200 non-UK personnel who left the regulars in 2020. Commonwealth service personnel have contributed an enormous amount to our national defence and we owe them a debt of gratitude. However, the extortionate visa fees have left many non-UK veterans facing financial ruin and being abandoned. Therefore, in line with calls from the Royal British Legion, we will bring forward an amendment that would mean that Commonwealth and Gurkha veterans who have served for years would pay just the cost price for an indefinite leave to remain application.
It has been clear for some time that the Armed Forces need independent advice and representation. Witnesses during the Committee stage in the other place reinforced this, since Armed Forces personnel have endured a real-terms pay cut for most of the last decade and concerns about the service complaints system remain. We will therefore explore whether the time is right to formalise representation and support for service personnel on issues such as welfare and pay. To be clear, this would not be an equivalent to a trade union for the Armed Forces, and it would not conduct or condone any form of industrial action or insubordination within the Armed Forces. The body would work with the Ministry of Defence to put in place a form of understanding that could deal with such issues and would be similar to models in the United States and Australia.
We are also saddened to see that the Bill does not include a clause requiring the Government to conduct a comprehensive review of the number of people who were dismissed or forced to resign from the Armed Forces due to their sexuality. Homosexuality was banned in the British Armed Forces until 2000, when the ban was lifted by the then Labour Government. During the ban, many were dishonourably discharged or forced from the service, losing access to pensions and benefits. Some were also stripped of medals that they had earned for their service. Along with the practical impacts of this discrimination, such as the loss of pension, it also caused significant challenges for mental health and well-being. We deeply regret the treatment of LGBT+ veterans under the ban. As organisations such as Fighting With Pride, Stonewall and the Centre for Military Justice have said, we must do more to identify those affected and consider what further compensation might be appropriate. We will therefore seek to amend the Bill to force Ministers to consider the restoration of ranks, pensions and other forms of compensation to honour appropriately those who have served our country.
That is, in a sense, a summary of the position we will take on these Benches, but I ask the Minister to take away three ideas. First, our Front Bench found little reason to disagree with most of today’s speakers; there is consensus across the House on a wide variety of issues. Secondly, at least five speakers were concerned about the failure to embrace all the Lyons recommendations, particularly those relating to murder, manslaughter and rape. Thirdly, no less than 10 Members spoke about their concerns about the covenant. It if comes to Divisions, the Government will lose. I hope that they will start straightaway to think about how they might meet this House’s concerns so that we can work through concessions, not government defeats.
There is much to be commended in this Bill but there is also much to be put right. This type of legislation comes along once in a military session. Let us seize this opportunity. Let us work across parties, including with the Government, and improve the lives of our service personnel, veterans and their families.
My Lords, I begin by quoting my immediate predecessor, the noble Lord, Lord Tunnicliffe, who said that this has been an excellent debate. He is absolutely correct—we have heard many thought-provoking contributions. What has left a lasting impression on me from this afternoon’s proceedings is the many impassioned speeches made on behalf of our Armed Forces. I thank your Lordships for that warmth and affection, and for the cross-party support of the noble Lord, Lord Coaker, who opened for the Opposition, of the noble Baroness, Lady Smith of Newnham, and from the Cross Benches. That attitude and those contributions reflect the deep and abiding affection and support that our service men and women, veterans and the broader service community enjoy in this House and beyond.
Of course, as the noble Lord, Lord Bilimoria, said, we should also remember that a tremendous contribution has been made over decades by our Commonwealth forces and veterans. Bringing it right up to date, my noble friend Lord Trenchard rightly reminded us of the role of our reservists in Operation Rescript, so there is much of which we can be very proud and certainly much for which we are very grateful. In turn, this mirrors the desire of your Lordships to make certain that this Bill can deliver measures that have a profound and far-reaching benefit to those who guard and shield the nation.
As the noble Lord, Lord Tunnicliffe, said, support for this Bill is strong and widespread. I appreciate the interest shown and the questions about certain measures and wider issues. I will address as many of your Lordships’ concerns as I can in the time available.
I was interested in the points made by the noble Baroness, Lady Garden of Frognal. One was perhaps predictable, because her assiduous work on behalf of war widows is, rightly, widely respected and acknowledged. Her plea for war widows, for whom she so tirelessly advocates, is heard. I can say that there is a desire to find a solution and all avenues are currently being explored; I use the word “currently” advisedly. I hope it will be possible to report further on that in the not- too-distant future.
The noble Baroness, Lady Garden of Frognal, also asked about overturning decisions of the Service Complaints Ombudsman. That ombudsman is of course independent but, as with other ombudsmen and ombudswomen, their recommendations are taken seriously but are not in themselves binding. However, I was interested to hear the noble Baroness’s contribution.
I also want to deal with one or two important points made by the noble Lord, Lord Dannatt, which I noted down. In character, the noble Lord raised a multiplicity of thought-provoking and important issues, and I will look at Hansard and endeavour to respond to him. He referred to the Gurkha hunger strike, which I am pleased to say has now come to an end. My colleague the Minister for Defence People and Veterans, and the Defence Secretary, will meet Gurkha welfare groups shortly to discuss all welfare concerns. I know that the noble Lord, Lord Bilimoria, was also concerned about that.
I was not surprised to find that a lot of the discussion this afternoon concerned the covenant. There was widespread acknowledgement that placing it in legislation is good news; indeed, my noble and learned friend Lord Mackay of Clashfern rightly identified the important message that this sends to our Armed Forces, as did the noble Lord, Lord Dannatt. However, I certainly noted the concerns articulated by a number of noble Lords, not least the noble Lord, Lord Coaker, and the noble Baroness, Lady Smith.
In response to the specific point raised by the noble Lord, Lord Coaker, my noble friend Lord Astor of Hever and my noble and learned friend Lord Mackay of Clashfern on why the legislation will not apply to central government, I would say that government is held to account by Parliament and the purpose of the covenant duty is to raise awareness among providers of these public services of how service life can disadvantage the Armed Forces community in accessing these key public services. The MoD is fully aware of issues that impact the Armed Forces community, and we work with other departments and organisations across not just government but the United Kingdom to raise awareness, to access concerns—as best we can—and to help facilitate the resolution of problems. The MoD and central government more widely are already held to account in the delivery of the covenant by the statutory requirement to report progress against the covenant annually to Parliament. That will remain a legal obligation. I realise that that will not satisfy all noble Lords, but I shall anticipate with interest how your Lordships who are concerned about the omission of Governments—indeed, I think it was my noble friend Lord Astor who specifically mentioned the Scottish Government—explore and broaden out these genuine issues.
As in the other place, a number of noble Lords have argued that the scope of duty for the covenant is too narrow and that it should be broadened beyond housing, healthcare and education. We have chosen the scope of the duty carefully and in consultation with the Armed Forces community because we know that these issues will make the greatest improvements to family life. Indeed, I am grateful to my noble friend Lord Lancaster for recognising that. Significantly, of course, the Bill contains provisions for us to expand the scope into other areas through secondary legislation at a later date. I was asked for an assurance that this will be reviewed regularly. I am happy to give that assurance: the scope of the provision will be reviewed regularly. This is not the end of our legislative effort; it is the beginning.
A number of noble Lords, not least the noble Lord, Lord Coaker, the noble Baroness, Lady Smith, and a number of others, claim that the new legal duty is not strong enough. They are concerned that creating a legal duty “to pay due regard” to the principles does not go far enough. I know there has been talk in the other place from the Opposition Benches of needing to set “measurable national standards”. I think our challenge throughout this has been one of striking a balance. On the one hand we wanted to ensure delivery against the covenant principles, but on the other we wanted to avoid the sort of prescriptive approach that puts bureaucratic barriers in the way of practical delivery. Your Lordships will understand that when we are dealing with constituted local authorities which are entitled to a degree of government autonomy to make their own democratic decisions about what they wish to do, and with devolved Governments who have legislative competence to deal with delivery of these policy areas, we have to be very careful that we are not setting down a prescriptive approach which could be provocative, inimical and, in that respect, fairly unhelpful. I assure your Lordships that public bodies were consulted extensively, and our decision also reflects the diverse nature of public services across the country, but the Government will monitor responses and we are obliged, as I said earlier, to submit an annual report on the covenant to Parliament.
Predictably, the issue of the service justice system invited significant and extensive comment. I was pleased to hear noble Lords refer to the important reviews of the service justice system. I, too, have considered the reviews of His Honour Shaun Lyons and Professor Sir Jon Murphy, and it is their recommendations that underpin the improvements to the service justice system that we are taking forward in the Bill.
The noble Lord, Lord Thomas of Gresford, with his considerable experience in this field, raised this issue. He sought a further explanation about why the Government were adopting the particular course they have chosen. That was, to some extent, echoed by the noble and learned Lord, Lord Thomas of Cwmgiedd. As I said at the beginning of this debate, while we accept the need to improve the decision-making process in relation to concurrent jurisdiction, we do not believe that the introduction of an Attorney-General consent function is the best way to achieve it, because Attorney-General consent arises at the end of the investigatory process, when key decisions on jurisdiction have already been made. I find it hard to see what the attorney adds if he or she is endorsing decisions already made. If the attorney were to disagree with those earlier decisions and veto a case being tried in the service justice system, there is no easy way to transfer that case to the civilian system. This could have the undesired effect of making it difficult or impossible to prosecute the case in either system; I think we all need to reflect upon this. The Government believe they have opted for a more pragmatic approach. As I said earlier, Clause 7 ensures that decisions on jurisdiction are left to the independent service justice and UK civilian prosecutors using guidance they have agreed between themselves. I do not consider that politicians should meddle in that. It is the case that the civilian prosecutors will have the final say as to within which jurisdiction the matter will be tried if there were disagreements.
The noble and learned Lord, Lord Thomas of Cwmgiedd, raised three significant points to which I listened with interest: first, should Parliament approve the prosecutor’s protocol and, secondly, in the choice of jurisdiction, should there be a right of appeal? He also suggested that it must be an error that this applies only in the United Kingdom. The Government seek to go with the grain of existing non-statutory arrangements. There is an existing non-statutory protocol between service and civilian prosecutors, and putting it on a statutory basis will bring clarity and transparency. On the specific points the noble and learned Lord raised, I suggest that there is no need for parliamentary approval for this type of protocol because this follows the precedent for the statutory Code for Crown Prosecutors, and that is not subject to that type of approval. On the second point, the Government see these as decisions for prosecutors. They are not subject to appeal at present; we are not looking to change that. On the third point, no, it is not a drafting error that it applies only to the United Kingdom. The purpose of this provision is to guide how civilian and service authorities within the United Kingdom manage these matters. Overseas matters are different—not least that they are often governed by a status of forces agreement.
I have endeavoured to explain why the Government have not just pulled this out of the air. Careful thought has been given to these proposals. I think it is worth reminding ourselves that the current situation was established by the Armed Forces Act 2006; that is the legislation that Parliament approved back then. I appreciate that that was under a Government of a different hue but, none the less, Parliament approved it and established jurisdictional concurrency by allowing murder, manslaughter and rape in the UK to be tried as service offences. It is that legal principle that the Bill supports, and that is why it is drafted as it is.
A number of your Lordships raised the comparative statistics on conviction rates between the service justice system and the civilian criminal justice system. I have to say—and I have looked at this—that I do not think it is possible to make a meaningful statistical or data comparison between the service and civilian justice systems. The service justice system review makes it clear that it is not possible to make accurate comparisons of outcomes in the systems as the relatively low number of cases and the small database in the service justice system mean that variances have a disproportionate effect on percentage values, which can subsequently lead to false conclusions.
A number of your Lordships referred to the House of Commons Select Committee report, which the MoD is currently considering; we shall publish our response shortly. On some of the criticisms which were levelled by your Lordships about the efficacy of the service justice system dealing with rape and serious sexual offences, we are confident that the service justice system provides an effective and fair system of justice for the men and women in the UK’s Armed Forces. It is interesting to note that the forces themselves do not report a lack of confidence in the system. The latest continuous attitude survey showed that 64% of the service population thought that the service justice system was fair, which compares with around 69% of the civilian population who think that the criminal justice system is fair. I am merely offering to your Lordships some basis for the approach which the Government have chosen.
A number of your Lordships raised the very important matter of mental health and mental health support: the noble Lord, Lord Coaker, and the noble Baroness, Lady Brinton, spoke movingly about this, and the noble Lord, Lord Hay of Ballyore, referred to it, as did my noble friend Lord Balfe. It is correct that as our service personnel return home from testing operations, there is little doubt that in future years, sadly, an increasing number of veterans may suffer from mental health issues.
The MoD is committed to the mental health and well-being of our Armed Forces personnel and recognises that service life can cause stress. All Armed Forces personnel are supported by dedicated medical services, including mental health support. The MoD works with the single services, the Defence Medical Services and other stakeholders to promote mental fitness, prevent ill-health and try to reduce stigma. A lot of work has been done in that respect, of which I think many of your Lordships are aware.
I emphasise that an online mental health fundamentals course is available to all Armed Forces personnel, and since 2021 an annual mental health briefing is mandatory for all Armed Forces personnel. The MoD provides a 24-hour mental health helpline for Armed Forces personnel and their families, delivered by Combat Stress. That has been one of the most important developments in recent years. Togetherall allows Armed Forces personnel access to its 24-hour staffed digital forum and the Samaritans delivers bespoke workplace training and a peer support pocket guide providing guidance on how to talk to and support colleagues struggling to cope with mental health.
I think it was the noble Baroness, Lady Brinton, who sought information about resource. From the information I have available, in 2020-2021, NHS England provided £16.5 million for veteran-specific mental health services, which increased to £17.8 million for 2021-22. In addition, the Government are also accelerating a new NHS England high-intensity mental health service for veterans who have acute mental health needs and are in crisis.
I refer to yesterday’s announcement that additional funding will be allocated to a range of projects that will increase capacity in mental health charities. There will be a £5 million boost to help increase the user-friendliness and accessibility of services and better signposting of veterans to the range of services available. I hope that that reassures your Lordships that this is an area in which we are determined to do our very best and that we endeavour to support our veterans in every way we can.
In the time remaining I will address specific points that were raised. The noble and learned Lord, Lord Morris of Aberavon, is not with us. He explained to me that an urgent domestic matter has commanded his attention, requiring him to leave early, and I thank him for his courtesy. He raised important points, and, although he is not here, I will address them because they concern the courts martial.
His honour Shaun Lyons in the service justice system review concluded that there remained the need for a separate service justice system. The court martial system largely follows the Crown Court procedure, and the Bill takes the court martial system closer to that civilian system. While it is true that the Bill retains the possibility of 2:1 majorities, the intention is that three-member panels will deal only with less serious offending, and serious offending will be dealt with by six-member panels. His honour Shaun Lyons considered but rejected the possibility of voting being announced; voting is not currently published.
My noble friend Lord Lancaster raised the fact that the Armed Forces Act 2006 no longer applies to Gibraltar. I am aware that this is an issue which my noble friend dealt with extensively when a Minister in the Ministry of Defence. While it is true that the 2006 Act no longer extends to Gibraltar, the Bill contains an important provision on Gibraltar. Clause 19 confirms that Gibraltar legislation can apply the Armed Forces Act 2006, which means that Gibraltar can make provision so that the Royal Gibraltar Regiment can make use of the UK service justice system.
The noble and gallant Lord, Lord Craig of Radley, raised the important and interesting issue of what I would describe as a statutory spring clean: could we make future Armed Forces Bills more straightforward, easier to read and to understand? As regards spring cleaning, that is a kind of floor-to-ceiling job with the curtains included as well, so I undertake to have a meeting with the noble and gallant Lord to discuss those issues further.
The noble Lord, Lord Dannatt, asked whether we have figures for interpreters returning to this country. During Operation Pitting, between 15 and 29 August up to 5,000 Afghan locally employed staff and families were relocated under the Afghan Relocations and Assistance Policy. Prior to Operation Pitting and between 22 June and 14 August, a further 2,000 were relocated, and in the last six weeks 7,000 locally employed staff and families were evacuated in total. These are the figures I have at the moment. Obviously, they may change on a day-to-day basis, but we have all been aware of the noble Lord’s herculean efforts to keep this matter at the forefront of the attention of government and the British public, and I pay tribute to him for those efforts.
My noble friend Lord Lancaster and the noble Lords, Lord Dannatt and Lord Bilimoria, raised the matter of visa settlement fees. We recognise that settlement fees may place a financial burden on some serving personnel wishing to remain in the UK. The Defence Secretary has met with the Home Secretary to consider how we could offer greater flexibility in the future. As was indicated, a public consultation was launched on 26 May 2021, which closed on 7 July. We are currently analysing the feedback from that consultation and we shall respond in due course.
My noble friend Lord Lexden raised the very important matter of Clause 18, and I am grateful to him for mentioning the significance of that clause. He rightly mentioned Professor Johnson and the noble Lord, Lord Cashman. I wish to use this opportunity to pay tribute to their incredible efforts to bring Clause 18 to fruition, and I think the Chamber would wish to acquiesce in these sentiments.
Finally, an interesting contribution, if slightly not in the mainstream, came from the noble Baroness, Lady Bennett of Manor Castle. She referred to “child soldiers”, which is a term that few of us in this Chamber recognise—it is certainly not one that the Armed Forces recognise. We have a very healthy cadet programme where young people, on their own admission, have marvellous opportunities and thoroughly enjoy the experience, and that seems to be a very positive initiative in this country.
The Armed Forces covenant covers those who have been in regular service. It applies to all service personnel and veterans, and a veteran is a person with at least one day’s service. On the noble Baroness’s specific question about export licences, I refer her to the Department for International Trade, because that is its responsibility.
In conclusion, I thank everyone for their valued contributions. If my memory serves well, back in February I said to this House during the debate on the Armed Forces Act (Continuation) Order that I anticipated an interesting and lively debate on this Bill. In that regard, I am certain that none of us has been disappointed. I have enjoyed the debate and found it stimulating. I look forward to the detailed scrutiny we shall give the Bill in Committee, and I commend it to the House.
Bill read a second time and committed to a Grand Committee.
National Insurance Contributions Bill
The Bill was brought from the Commons, read a first time and ordered to be printed.
Public Service Pensions and Judicial Offices Bill [HL]
My Lords, the Public Service Pensions and Judicial Offices Bill consolidates and strengthens a common UK legal framework for pensions across all the main public services—that is, the NHS, the judiciary, the police, firefighters, the Armed Forces, teachers, local government and the Civil Service. The Bill ensures that those who deliver our valued public services continue to receive guaranteed benefits in retirement that are among the best available on a fair and equal basis. In addition, the Bill includes measures that will address resourcing challenges facing the judiciary, recognising the unique constitutional role of judges. The Bill will also lead to the creation of a new UK asset resolution public service pension scheme for the beneficiaries of the existing Bradford & Bingley and NRAM—that is, Northern Rock —pension schemes.
I will start with the measures that relate to ensuring fairness and equality across public sector pensions, but first I will set out the wider context for reform. As your Lordships will recall, in June 2010, supported by cross-party consensus on the need for the greater sustainability and transparency of public sector pensions, the coalition Government established an Independent Public Service Pensions Commission chaired by the noble Lord, Lord Hutton of Furness. The commission undertook a fundamental structural review of public service pensions. This review was underpinned by a set of principles against which the options for reform were judged. These principles were that the measures should be affordable and sustainable, adequate and fair, supportive of productivity, and transparent and simple. These principles are just as important today as they were then, and they highlight the need to achieve greater fairness between lower and higher earners and for the taxpayer, as well as the future sustainability and affordability of public sector pensions.
Following that review, the Government introduced a number of key changes. Pension benefits would no longer be based on an individual’s final salary, but instead on career average revalued earnings. Member contribution rates were increased and the normal pension age was linked to the state pension age for all schemes, except those specific to the police, firefighters and the Armed Forces. These changes achieved greater fairness for low earners by giving many a more generous pension. In addition, the reforms will save taxpayers an estimated £400 billion over the following 60 years.
Having provided this background, I will turn to the Bill’s specific measures on the remedy. Prior to the 2015 reforms, the Government agreed, following negotiations with trade unions, to protect the pensions of those closest to retirement. They did this by allowing those members within 10 years of retirement in most public service pension schemes to remain in the final salary schemes, instead of being moved to a career average scheme. This step was known as transitional protection. However, in 2018 the courts found that this step unlawfully discriminated against younger members. Although the legal challenge was specific to the judicial and fire schemes, the Government recognised the wider implications across all public service schemes. We therefore began a thorough programme of work to identify and implement a robust remedy. This Bill brings that remedy into effect and its measures follow public consultations in 2020 and government responses earlier this year.
For the remedy period—that is, from April 2015, when the reforms were implemented, to 31 March 2022—all eligible members will be given a choice between legacy and reformed scheme benefits. For the majority of members that choice will be made at retirement, when it will be clearer which scheme is most beneficial to each individual. This is known as a deferred choice and was the preferred option in the majority of consultation responses. The exception is the judicial schemes, where affected members will make their choice before retirement in a so-called options exercise.
The local government arrangements reflect that the remedy for the discrimination does not require member choice. Instead, protection will be granted to younger eligible members via the extension of the existing underpin, which gives protected local government pension scheme members a guarantee that their reformed scheme pension will be no lower than it was in the legacy scheme. The local government arrangements also reflect that in England and Wales the scheme reforms were implemented a year earlier than other public service pension schemes—from 1 April 2014. For those members who have already taken pension benefits in relation that period, a choice will be offered as soon as is practicable. This measure therefore remedies the differential treatment of younger members as a result of transition protection.
Although the Bill ensures retrospective fairness, it is also right that we ensure that all pension savers are treated equally in future—the so-called prospective remedy. Therefore, from 1 April 2022 all legacy schemes will be closed to future accrual and all those impacted will be placed in their 2015 reforms schemes or, in the case of the judiciary, moved to a new scheme. This measure guarantees that all members within each scheme will be put on an equal footing and underlines our recommitment to the principles of the 2015 reforms. Local government workers have already moved to career average arrangements and these schemes will continue after 31 March 2022.
As your Lordships may recall, the Independent Public Service Pensions Commission also recommended that the new public service pension schemes should include a cost ceiling to protect the taxpayer from unforeseen increases in scheme costs. However, the Government chose to go a step further and establish a symmetrical cost control mechanism that also maintains the value of pensions to members when costs fall. The mechanism was designed in such a way that, if the cost of a scheme rises above or falls below specified margins, the scheme rules must set out a process for agreeing how costs can be brought back to target. So, where costs rise above a certain level, benefits are reduced, or where costs fall below a certain level, benefits are improved.
It is right that the additional benefits that members will receive as part of the remedy are considered by this mechanism as a cost, by giving members a choice of benefits. The value of schemes to members will increase and therefore costs will rise. This assessment of the costs of member benefits is precisely what the mechanism was established to do. However, to ensure that no members’ benefits are reduced as a result of this assessment, the Bill contains a measure to waive any results that might lead to benefit reductions. This should mean that no member will be worse off. In addition, the Government have committed that, where benefit improvements are due, these will be delivered.
As I have outlined, the Bill builds on the Public Service Pensions Act 2013 to create an overarching legislative framework for all public service pension schemes. While this piece of legislation is comprehensive, I am sure your Lordships would acknowledge that pension schemes are extremely complex and must be tailored to fit each workforce’s individual requirements. As a Government, we intend that our legislation accounts for those differences, many of which are found in scheme regulations. Therefore, given the level of detail involved, these measures will come before Parliament as statutory instruments for further scrutiny. Furthermore, to demonstrate the approach to secondary legislation, I pledge to deposit policy statements in the House Library in the coming weeks for further scrutiny.
Allow me now to turn to the Bill’s next element: the package of reforms to help address the resourcing challenges facing the judiciary, recognising the unique role that judges fulfil in our constitution. The UK justice system is known across the world for its excellence, objectivity and impartiality. This is due in no small part to the exceptional expertise of our courts, our tribunal judges, our coroners and our valued magistrates.
However, as the structure and operation of our courts and tribunals have developed, so has the resourcing needs of the judiciary. The frequency and volume of judicial recruitment has increased considerably in recent years and, despite recruiting about 1,000 judges and tribunal members per annum since 2018, we have not been able to recruit the full number of judicial officeholders needed across all courts and tribunals, putting considerable pressure on judges and the justice system.
I am sure your Lordships will agree that it is vital that we continue to attract and retain high-calibre judges to secure the proper functioning of our justice system. This Bill brings forward bespoke measures to address some of the current recruitment and retention challenges facing the judiciary. It enables the provision of a new, reformed career-average judicial pension scheme. It increases the mandatory retirement age of judicial officeholders to 75, extends the potential for sitting in retirement to the fee-paid judiciary and puts judicial allowances on a firmer legal footing. Taken together, those measures represent significant steps that will allow us to continue to support our world-class judiciary, for which we are so rightly renowned, to meet the demands of the present day and the future.
I now move to the measures to establish new UK asset resolution public service pension schemes for the beneficiaries of the existing Bradford & Bingley and Northern Rock asset management pension schemes—so-called NRAM. These two schemes cover the pension schemes of the former staff members of both bodies, some of whom worked for in the region of 30 years for each company respectively. These measures are an important step in the Government’s careful long-term management of the financial assets acquired as a result of the 2007-08 financial crisis. The new schemes will provide former Bradford & Bingley and Northern Rock staff members with the assurance that their pensions are secure over the long term. Let me stress that members’ pensions and pension promises will be unaffected by this change. In addition, this measure will ensure better value for the taxpayer through the creation of a more efficient structure for the Government to meet their liabilities towards those two schemes.
There is no doubt that the Bill before the House is complex legislation. It is therefore crucial that all technical changes are robust and legally operable across all schemes. As I mentioned, we are committed to getting the detail right and to giving in-depth consideration to each scheme’s specific circumstances. Therefore, to ensure a comprehensive and effective remedy with consistent application of measures across all relevant schemes, it is expected that some technical amendments will be required during the Bill’s passage. In addition, I am pleased that the Welsh, Scottish and Northern Irish Governments are considering legislative consent Motions to aim to ensure parity across the UK for the areas where legislative competence is devolved.
Our public servants provide vital services on which we all rely. Their unwavering commitment has been particularly vital during the pandemic. We have an obligation to continue to provide guaranteed pension benefits to reward those workers for their dedicated service, but we must do so on a fairer basis, in a way that ensures that pensions are affordable and sustainable in future.
In conclusion, I believe that the package of measures contained in the Bill will bring about long-term sustainable changes that are in keeping with the original principles of the 2015 reforms and provide fairness for members, employers and taxpayers. I hope noble Lords will recognise the Bill as a clear sign of the Government’s responsible approach to public service pension provision, as well as responding to the specific resourcing challenges facing the judiciary. It is for those reasons that I commend the Bill to the House.
My Lords, first, I need to mention my entry in the register of interests. I have had an actuarial career, largely advising a range of trade unions about their members’ pension schemes, including most public service schemes covered by the Bill, but I am no longer actively engaged in such work.
I very much welcome the Minister’s careful and lucid explanation of what he rightly says is a complicated subject; it was a fine introduction to the work that faces us over the next few months. I also very much welcome the fact that I have a pensions Bill to get my teeth into, and I will be a committed and active member of the Committee when it considers the Bill. I look forward to interesting and detailed discussions.
I ask the Minister to say something about the expected timetable for passing the legislation. Much detailed work is being undertaken at the moment in parallel with the Bill going through Parliament. The government departments and scheme advisory boards are busy implementing the measures in the Bill, and it would be good to have some idea of exactly how that process will work because, clearly, they need certainty about the legislation’s outcome before they can reach final decisions.
My major issues with the Bill arise from Chapter 1, about public service schemes. The problem is that we have here only part of the story. It deals with the consequences of the decisions in McCloud and Sargeant, which, as the Minister explained, ruled against transitional protection. In its place, we have this remedy to sort out what is undoubtedly a significant mess, but the difficulty is that this is only part of the story of what is happening to public service pensions at the moment. These measures can be fully understood only in the context of the other things occurring at the same time, which the Minister did not mention—they are not in the Bill—but I think we need to understand the context in which this particular part of the picture is being considered.
There is a range of matters. The most significant is getting the 2016 valuation concluded. The 2016 valuation—the results of which should have been implemented some years ago—is ongoing and must still be resolved. At the same time, the Government are reviewing the cost-control mechanism. As explained by the Minister, this is highly contentious, because the Government are attempting to make changes which the unions consider go against the spirit of the Government’s agreement made 10 years ago. At the same time, the Government are reviewing the SCAPE discount rate mechanism—a particular element in the cost-control mechanism.
What is the effect of all those changes on the 2020 valuation? You might think that in 2021 the 2020 valuation would be done and dusted but, as I explained, we have not finished the 2016 valuation yet, so there is a certain amount of slippage here. It is difficult to understand. A sequence of events needs to be taken into account and, unless we have some picture of how this will affect the 2020 valuation, it is difficult fully to assess this legislation without putting it in the context of the other things happening.
One significant additional issue which must be resolved is whether the cost of the remedy this Act sets out is to be met by the members. This is taken for granted by the Government; the members contest it. It is currently the subject of a legal process but it is crucially important. When considering the legislation, we must consider the effect of that issue. So, while this Bill is presented to us as a set of standalone measures, it is difficult to be confident that the solution, the remedy proposed here, is just and workable when all these other factors are still in play.
I have gone over the allotted time; I apologise. I will quickly mention some other issues that I will seek to raise in Committee. We must carefully consider the use of Treasury directions. It raises constitutional issues that must at least be clarified. Concern has been expressed by various groups of employees, most notably the police service and firefighters, that the specific way in which the remedy is being implemented has an adverse effect because of their particular past pension structures.
I am heavily outnumbered here by the lawyers, but finally, I will stray into Chapter 2. Clearly, there is a strong case for the special tax treatment being afforded to the judicial pension scheme, but it raises the possibility of circumstances in which other groups of employees deserve special tax treatment as well. These are all issues that we will have to resolve, or at least discuss, in Committee.
My Lords, I too thank the Minister for his clear and succinct introduction. As he said, this legislation is necessary to remedy the effects of the McCloud judgment relating to the Public Service Pensions Act 2013. I rise to highlight some of our concerns in a number of areas.
The first is discrimination. In introducing the remedy, the Government must be certain that new measures will not produce further discrimination, such as placing a greater burden on newer or younger members of the scheme or reducing the right of part-time workers to make up their pensions by working for longer. This particularly affects women who have worked part-time due to family or caring responsibilities. In their responses to the consultations, some have described, with particular reference to the police and the benefits of the legacy schemes, how the Bill must pay particular attention to discrimination to avoid further long and drawn-out legal cases.
Also, as the noble Lord, Lord Davies, said, it is very important that the changes be just, and there must be trust in government to protect citizens. Promises and commitments already entered into by government must be addressed and cannot simply be brushed aside as being too costly. It will be of great importance to many members that promises made by the Government are honoured. Equally, commitments made by the Government, as agreed in the cost mechanism, have not been acted upon—as, again, the noble Lord, Lord Davies, said—following the 2016 valuation, which should have benefited members. It is worth noting here the comments of the Public Accounts Committee:
“HM Treasury should have foreseen the age discrimination issue that gave rise to the 2018 McCloud judgment, and putting things right will take many decades to resolve. HM Treasury wants members to pay to put this right—at an estimated cost of £17 billion—despite it being its mistake.”
The National Audit Office said in March 2021:
“Employee representatives told us that the review of the mechanism”
because of what has happened at the first valuation
“undermined trust between employees and the Government”.
The recommendation of the House of Commons report on public service pensions stated:
“HM Treasury must prioritise work to quickly resolve the challenges presented by the McCloud judgment and cost control mechanism, in order to give certainty to scheme members and employers, and rebuild the trust lost”.
Other concerns relate to the treatment of disbenefits to members of current legacy schemes. These must be fully evaluated before March 2022, when they enter the career-related schemes and the legacy schemes are closed. There are significant differences between the new schemes and legacy schemes such as the police pension—again, that is specifically referred to—which is based on years of service rather than pensionable age. Both these schemes are seen by members as being based on promises made by the Government to the service. Retirement in the career-related scheme is at 60, but as police pensions are based on years of service, members may wish to retire at an earlier age. If they do this under the career average scheme, which allows retirement at 55, they could lose up to 25% of their pension, which is a very significant issue. I am sure that this will be considered in more detail in Committee. There are similar structural issues for fire and rescue services, which were highlighted by the LGA. I would like the Minister to take note of an anomaly in Clause 29 and consider an amendment to recognise the special arrangements of the service where the employer is also the scheme manager.
The complexity of the current position with regard to public service pensions legacy schemes, given the Government’s intention that all be included in CARE schemes by March 2022, gives rise to a lot of practical problems, and I would like to understand how the Government intend to deal with them. It will be extremely important that the proposals in the Bill are workable. It is easy to say that members get to retirement and make whichever choice is best for them, but in some cases, they may have rights built up that fall due at different ages—some at 60, some at 65. So, if there is not a single retirement age, when do they have to make the choice? In some cases, the higher pension at retirement may be under one set of rules, but as retirement continues it may turn out that the other set of rules would have given a bigger total pension. What happens then?
The Government have accepted that people with really complex tax issues can have financial advice, but what about the millions of public sector workers who will have to make these choices? Where is the help and guidance coming from for them? What about financial planning between now and retirement? Presumably, any statement will show rights based on the assumptions of the old scheme, even though some people will opt for the new scheme. Will they have access to both numbers when they are planning and will the pensions dashboard show both numbers? It is going to be an extreme challenge for schemes to unpick, administer and communicate, and members are going to need a lot of help to understand what is happening. What plans do the Government have to resource support systems and enable members to make the best choices? Support for trustees of pensions schemes will also be needed.
The Bill deals with the consequences of government failure to foresee the age discrimination issue which gave rise to the McCloud judgment. The Bill will determine the future means of many public service employees. The Minister and the noble Lord, Lord Davies, said that many complex and difficult matters need to be resolved if members are to have confidence in the competence, integrity and political will of the Government to get it right.
My Lords, I welcome the Government’s action in promoting this Bill, and I hope it will be enacted without delay. In that regard, I was rather concerned to hear the submissions of the noble Lord, Lord Davies, which indicated that perhaps it will not be as straightforward a process as I would hope.
I refer to the entries on the record relating to my judicial career. Before I retired, the Government had, in my view, made two errors that were having an adverse effect, particularly on the position of members of the senior judiciary. The first was to reduce their mandatory age of retirement to 70 from 75, which it had been earlier in my judicial career. The second was to reduce the value of their pension in real terms because of the tax provisions to which the pension was subject.
A further alteration was made at about this time, which meant that very senior members of the judiciary did not have the privilege that I had, as a consequence of my appointment as a senior judge, of becoming a Member of this House. I know that all members of the judiciary who have had this advantage are very conscious of how important it was. I believe that others who had this advantage have made contributions that have been most important to the workings of this House. However, I accept that this change would be difficult to bring about in the course of this Bill, even though I would like to have seen it included.
However, the changes the Bill does make are sensible. Reducing the retirement age from 75 to 70 did not apply to me because it was not retrospective, but it has been made clear by events that have taken place since that time that we have been deprived of valuable judicial contributions by the reduction in age—without, I would say, any accruing benefit to the public interest. There must be a retirement age for judges; we cannot have a situation such as existed at the time of my earlier career, when some would say Lord Denning’s great powers as a judge were beginning to wane but there was no remedy available to cope with that situation. However, bearing in mind in particular current life expectancy, going back to 75 is a wise and sensible move. I hope it will be enacted as a consequence of this Bill with a great deal of rapidity.
With regard to the other changes affecting the judiciary that are my concern, the position as I understand it is that they have been properly taken into account, and therefore I look forward to their implementation as well. To put it shortly, I wish the Bill a speedy passage.
My Lords, I am in a rather unique position, because I was responsible for the introduction of the changes in 1993 that reduced the retirement age from 75 to 70 for most judicial offices. The proposal at that time was generated I think by a desire to make it clear at what stage a judge might be subject to some kind of consideration in relation to his or her health. The system was that, if somebody was getting a little frail in the mental side of their lives, the Lord Chancellor was expected to tactfully suggest that the time to close their judicial work might be approaching.
I did not much care for that sort of idea, because I thought it was a kind of interference with judicial independence—they had to decide for themselves. Of course, ultimately, they had to decide. It was not the Lord Chancellor’s decision; it was theirs. But anyway, the general view was that the retirement age should be reduced from 75 to 70. That was a fairly considerable change from what it had been years back, when there was no retirement age at all for most. Noble Lords may remember that Lord Denning said that he had a lot of the Christian virtues, but not those of retirement or resignation. So, originally, there was a possibility of being in judicial office for quite a long time. Anyway, that matter had been changed and the retirement age was now 75.
I initiated the Bill that reduced it from 75 to 70, with corresponding changes in the pension system, which are also referred to in this Bill. I had to take into account the point that, where a judicial officer is appointed, he is appointed on a secure tenure until he reaches a certain age—when there was an age limit—on condition of good behaviour. Therefore, it seems unlawful to change the arrangements that were made when the person took that on, contrary to his or her interests, unless they agree to it. So the alteration of the date of pension applied only to those who were appointed after that came into force. I remember my noble friend Lord Baker of Dorking saying to me, “James, that will take a long time to come into full force”—but, of course, judicial turnover is rather quicker than he expected, and it came into practical effect within a quite reasonable time.
Now, I entirely support the view that things have changed since that time, and therefore it is appropriate to move back to 75. Generally speaking, the judiciary enjoy a degree of health at that sort of stage in their lives, so it is a reasonable thing to do, and the change would not act against the judges in any way. As I and the noble and learned Lord, Lord Woolf, said, there were changes in pensions arrangements in 1993, but an option was given to people who were already appointed to opt in to that, because there were certain advantages that could be taken up in the new pension scheme in 1993 that were not available in the former pensions. So I now have the unique responsibility of supporting a reversal of the change I made 28 years ago. It just shows how quickly you learn.
My Lords, I thank the Minister for the clarity of his introduction and express my intense pleasure at being listed to speak between two of my judicial heroes—the noble and learned Lords, Lord Mackay and Lord Brown.
For a long time, the police federations and other unions have been pressing the case that many of their members will suffer pension detriment by reason of some of the proposals found in this Bill. Previous speakers, in particular my noble friend Lord Davies of Brixton, have spoken of some of the unresolved issues, but the point to which I wish to draw the attention of the House is the failure of government to negotiate—or at least to consult with a view to reaching agreement—with the relevant police federations to remove or adequately compensate for the further detriments arising from the Bill.
The Police Superintendents’ Association has been making representations to the relevant Treasury Minister —not the noble Lord, of course—for months. I am told that it has been, in effect, stonewalled. In a letter to the relevant Minister dated a week ago, Chief Superintendent Dan Murphy of the PSA asked for confirmation that the Minister had ignored the PSA’s continuous request for the Government to informally engage with the PSA to resolve the taxation detriment suffered by its members and to formally consult with the PSA to resolve taxation detriment, and listed a number of other failures. He concluded by saying that the Police Pension Scheme advisory board was not satisfying the requirements for full and meaningful consultation, and cited some evidence to support that.
I do not wish to contest the merits of these allegations with the Minister, but they are serious. Pensions are not a matter for unilateral employer determination. International obligations to bargain collectively and to consult are engaged. I cite Article 11 of the European Convention on Human Rights as interpreted by the court in Demir and Baykara v Turkey. The same right is found in Convention 8 of the International Labour Organization, and Article 6.2 of the European Social Charter 1961 imposes on states the duty
“to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements”.
Article 6.1 requires the promotion of consultation as well.
The UK has ratified all these provisions. It is true that each contains an exemption in respect of workers, such as the police, engaged in the administration of the state, but that is a limited exemption and does not extend to the right to bargain collectively. That was made clear in a judgment of the European Committee of Social Rights adopted by the Committee of Ministers of the Council of Europe on 8 October 2014, in a case called European Confederation of Police v Ireland, which held that the Irish police association could not be excluded from public sector pay bargaining. In fact, collective bargaining and consultation are rights of particular importance for our police, who are prohibited by the Police Act 1964 from joining trade unions or going on strike, and whose freedom of association is limited to the police federations established by statute.
I am sure it will not be said that pensions are not pay and not, therefore, susceptible to collective bargaining. Pensions are of course merely deferred wages—part of what lawyers call the “consideration for work done”. They are a classic focus for bargaining. The international provisions that I refer to are of particular relevance because, by Article 399(5) of the EU-UK Trade and Cooperation Agreement—the Brexit deal—the Government bound the UK as follows:
“Each Party commits to implementing all the ILO Conventions that the United Kingdom and the Member States have respectively ratified and the different provisions of the European Social Charter that, as members of the Council of Europe, the Member States and the United Kingdom have respectively accepted.”
I hope the Minister will commit to an amendment that requires full collective bargaining with the police federations to meet the pension concerns of their members, before committing the House to regulations to implement the Bill.
My Lords, it is a great pleasure to follow the noble Lord, Lord Hendy. I am sorry that he is not noble and learned; he is very learned, except in this House, and it is a great pity that he has never adorned the Bench himself. He must have appeared before generations of lawyers and in supporting the Bill, as I do, particularly the extension of the mandatory retirement age, I can hope only that his experiences of the more elderly generations have not been too disobliging for him.
I spent a total of 28 years on the Bench, although I held none of the great legal offices of state. Finding here the noble and learned Lord, Lord Mackay of Clashfern, an erstwhile Lord Chancellor, my noble and learned friend Lord Woolf, erstwhile Lord Chief Justice and Master of the Rolls, the noble and learned Lord, Lord Etherton, another Master of the Rolls, and the noble and learned Lord, Lord Hope, Lord President in Scotland and a Deputy President of the Supreme Court, I wonder why I am speaking. But here I am and I support the Bill, both its provisions as to judicial pensions, which I truly believe were necessary to cure the resentments and deep unhappiness felt in the judiciary over some years, but also on the mandatory judicial retirement age—what the erstwhile senior Law Lord, Lord Bridge of Harwich, called the age of “statutory senility”.
There is nothing that I really want to say about pensions. I am not expert in that field, and certainly not in a position to advise on any of the technical amendments suggested to be necessary by the Minister. As to the mandatory retirement age, I seriously think, together with my noble and learned friend Lord Woolf, that this will assist in the process of judicial recruitment, which has been a real problem over recent years. The fact is that in 1993, when the noble and learned Lord, Lord Mackay, introduced the change at one and the same time, if I remember right, he increased from 15 years to 20 years the time to be served as a judge necessary to earn one’s full pension. Overnight, it became necessary to be appointed by the age of 50 if you were to earn a full judicial pension, whereas I, like the noble and learned Lord, Lord Woolf, and most others here, was appointed long before 1993 and it was not retrospectively effective. I had the privilege and great pleasure, in fact, of serving until I was 75. I had done 28 years. I am not asking for nearly twice the judicial pension that I then did get but, in fact, I could have retired after 15 years and got it.
I know that there are arguments both ways on this and on judicial diversity and matters of that character. It seems to me that appointment eventually to the Bench becomes an altogether more attractive prospect if, when you are in your late 40s or perhaps early 50s, and if you are in a good way of practice and probably making quite a lot of money but know that you can continue that beyond 50 and still do your stint on the Bench—which I believe for most people is a contribution due to the public weal by practitioners who have been advantaged by the process—after the Bill proceeds, as I trust it will, then you would get a full pension by doing so, quite likely rather later than you would otherwise have had to make your decision.
Nowadays, of course, there is an ever longer expectation of life. There is a longer expectation, too, of good health in one’s later years; there is also, I believe, a parallel inclination on the part of many older people who would like to continue working rather than have imposed upon them ever longer periods of retirement and idleness. Surely it is an attraction to be allowed to continue in judicial office as of right for the additional proposed five years. Those words “as of right”, as the noble and learned Lord, Lord Mackay, suggested, are of great importance here. Once appointed to the office, now until 75, I hope, by an independent Judicial Appointments Commission that secures the position, you are not thereafter—after 70—at the whim of those who have power periodically to extend day by day, or whatever it may be, your judicial life.
The Judicial Appointments Commission, chaired as it has been for the last five years by the distinguished Cross-Bencher, the noble Lord, Lord Kakkar, has fierce independence and an unswerving adherence to the principle of merit above all else. We have a splendid body of independent judges. We currently retire them when most, or perhaps nearly all, of them are at the very height of their powers at 70. Many would want to serve longer and I believe we should let them.
My Lords, I intend to touch on matters concerning police pensions, but I stress that I represent no one but myself in the words I say. I do not have a financial interest in this matter, although I do have a police pension from my time in the service of 35 years, reaching the rank of chief superintendent, and from three years as president of the Police Superintendents’ Association.
It was with great sadness in my heart that I heard that the Police Federation had publicly declared that it had lost confidence in Priti Patel, the Home Secretary, and that on 27 July this year, only days afterwards, it felt compelled to write to the Prime Minister and the Chancellor. In that letter, it set out the growing anger among 130,000 police officers of all ranks caused by a number of grievances—not just financial, although the last straw was the offer of a 0% pay increase. It is ironic that this letter was sent on the very day that a reception was being held in Downing Street to thank police officers injured in the pandemic for their selfless work, given the complicated and far from clear legislation, often without proper PPE. As well as a pay freeze as a thank-you, they rightly complained of mixed messaging and a lack of understanding of the police role by the Home Office which put them in an invidious position, leading to them being abused and attacked.
This is about false claims by the Home Secretary that the police were fully consulted on some of the more controversial elements of the new legislation. It is also about the failure, despite ministerial promises, to take seriously their request for early priority for vaccination. Police officers are tired of warm words at conferences with no show of genuine support for the police. In essence, they feel not just a lack of respect but that they are treated with contempt. This is a serious matter because the police are a unique public service who, along with the Armed Forces, are legally prevented, as has been said earlier, from taking industrial action.
Having set the context of where we are, I briefly come to the Bill before the House, which is another source of grievance. The matter of police pensions has of course been touched on by the noble Baroness, Lady Janke, and by the noble Lords, Lord Davies of Brixton and Lord Hendy. Police of all ranks feel that it reduces their pension entitlement. It is seen as yet another change with little consultation, which police officers passionately believe worsens the conditions of service under which they joined. All this at a time when the Government are trying to recruit thousands more police officers in order to hold the thin blue line. When I was president of the Police Superintendents’ Association I had excellent relationships with the noble Lord, Lord Howard of Lympne, and the Home Secretary who followed him, the right honourable Jack Straw. One of the best recruiting sergeants when I joined the service was the excellent police pension scheme. I recall the sergeant addressing the recruits at the training school, imploring all those present to join the scheme— I certainly never regretted it.
We cannot put the clock back, but we can respect those who have risked their health and lives in the line of duty. It is so important for the Home Office to have a business-like relationship with the police staff associations, but the current Home Secretary seems to have difficulty in developing and maintaining cordial relations with those with whom she has to work. I implore the Prime Minister to instruct his right honourable friend the Home Secretary to do what he apparently enjoys doing: to build bridges with the police staff associations, the representative bodies of those who keep us all safe.
I hope that the Minister passes on my message today. A good place to start would be by genuinely listening to the concerns of police officers of all ranks with a proper consultation on this Bill, in an attempt to mitigate their deep concerns with it in its present form.
The provisions in the Bill for reform of judicial pensions, intended to rectify the scheme introduced in 2015, which applied only to younger judges, are welcome. The April 2015 pension provisions were held by successive courts to be unlawful and discriminatory on grounds of sex, race and age. I can say from my own experience, when I was head of the Chancery Division of the High Court, that they were a disincentive for practitioners to apply to become High Court judges. The proposed provisions will ultimately permit and require all members of the judiciary to be on the same new scheme and terms, which is highly desirable.
However, I regret that unlike the distinguished other former judges and judicial officeholders who have spoken—the noble and learned Lords, Lord Woolf, Lord Mackay of Clashfern and Lord Brown of Eaton-under-Heywood—I regard the raising of the judicial retirement age from 70 to 75 as very much a mixed blessing. On the one hand, it will enable experienced judges, as the noble and learned Lord, Lord Brown, said, to continue in office when they still have so much to contribute to a high standard of justice. It will also allow for applicants for judicial appointment to apply later in their careers—again, as emphasised by the noble and learned Lord, Lord Brown. That may be attractive to some practitioners. On the other hand, to raise the retirement age in one step from 70 to 75 rather than, say, 72, is highly likely to have an adverse effect on diversity, especially in the Court of Appeal and the Supreme Court.
There are far too few women and people from minority ethnic backgrounds in the Court of Appeal and, especially, the Supreme Court. There is universal recognition of that shortcoming. It is possible to progress diversity only if the ranks of those in the top courts are open to new members. However, both courts are relatively young: in the Court of Appeal, for example, the current average age is under 63, which means that potentially there could be a very long freeze, of possibly 12 or 13 years, for any substantial influx of new members. Will the Government think again about that issue, and the potential adverse outcome of raising the age of retirement in one go to 75 rather than to 72, at least in the first instance?
Will the Minister also confirm that, if at all possible, the retirement age increase, whatever it might be, will come into operation on 1 January, as there are judges—including one in the Supreme Court—whose 70th birthday falls between the beginning of January and April next year, when all judges will be moved to a single reformed scheme? If the retirement age increase does not come into effect until April 2022, when the new pension provisions come into effect, such judges, whose 70th birthday would have accrued between January and 1 April 2022, will be able to apply again for appointment. That would complicate the appointments process when they will be competing against other applicants. Alternatively, will the Government give consideration to introducing transitional provisions to address that problem?
My Lords, the Bill affects many people in public service, but I hope that I may be forgiven for concentrating, like others, on the branch of the public service with which I am most familiar: the judiciary. So far as they are concerned, it seems to me that the Bill seeks to do two things that are to be welcomed.
The four noble and learned Lords who have spoken before me have said almost everything that could be said one way or the other, but I should like to stress one or two points. The first is the correction of the mistake that was made in 2015, when the new pension scheme was introduced, that applied to all members of the judiciary still in service, apart from those within 10 years of retirement. That scheme was significantly less advantageous because it was registered for tax purposes. That had very unwelcome consequences for those who had contributed to their own pension schemes while in practice. The prospect of the large and wholly unplanned-for tax bills that would be the result of becoming subject to that scheme was a severe disincentive.
I have experience of this—although the Bill certainly does not apply to me because I retired eight years ago. I made provisions at a very early stage in my career as a self-employed member of the Bar, with no prospect of becoming a judge at that stage, and indeed for a long time in my career. I sacrificed money that might have been used for other things to build up a reserve for myself and my family. This is what people had done, and now they were faced with these very unwelcome tax consequences—so it is no surprise that it was a disincentive, and it is right that the Government should seek to remove it. I also welcome the fact that the Government have decided, in this respect, to treat all members of the judiciary equally.
The legislation that we are presented with in the Bill is not an easy read, but the policy background is very clearly set out in the Explanatory Notes and the impact assessment, and I am also grateful to the Minister for his very helpful introduction. There is one aspect of the judicial scheme—the only one that will be available for everyone after 31 March 2022—which is especially welcome: the fact that the scheme will be unregistered for tax purposes. As I understand it, compensation is also being offered to those who incurred tax liabilities under the previous scheme—and that too is very welcome.
As has been pointed out, all eligible members will be able to opt for the scheme that is most beneficial to them under the options exercise that is to take place in the autumn of 2022. I hope that the Minister can assure the House that guidance will be offered to all those who are involved in that exercise in good time so that they may be fully informed before they take this decision. Guidance of that kind was offered in the past when I had to make that kind of choice, and it would be very helpful if the Government were to assure us that that will be done in this case.
I see this argument about pensions as the end of a long and, for some, very uncomfortable debate about how to balance the public interest against the reasonable expectations of those who have chosen to serve as members of the judiciary. I have been only on the fringes of these debates, but I wish to pay tribute to all those members of the Bar and the judiciary who have contributed to it, spending many hours, in many cases, in doing so.
The other thing that the Bill seeks to do—I follow the noble and learned Lord, Lord Mackay, and my noble and learned friends Lord Woolf and Lord Brown of Eaton-under-Heywood in welcoming this—is the reduction of the judicial retirement age to 70. The noble and learned Lord, Lord Mackay of Clashfern, may remember that some argued that it should be reduced to 65, but that step was fortunately not taken. But it was to overlook the benefits that come with experience.
I was one of those members of the newly formed UK Supreme Court who was able to continue to the age of 75. We tried very hard to persuade the then Government that that age should be retained for the Supreme Court justices—but without success. We pointed out that the new age limit would severely limit the time that some of our newer members could contribute to the work of our court, as was indeed the case, and that the rapid turnover that it would lead to was undesirable.
I noted with great care what my noble and learned friend Lord Etherton said about this, and his suggestion that there should be a phased increase in the retirement age. Perhaps I may continue for a moment or two to reply. The problem we have with legislation of this kind is that often one has only one opportunity. This is an opportunity that may not recur, and there will be consequences whatever happens. I give one example, which is now in the past: my noble and learned friend Lord Neuberger, who became president in 2012, had to retire in 2017, just before his 70th birthday, when he was still very much at the height of his powers. He was succeeded by my noble and learned friend Lady Hale of Richmond, who was already 70—but, because she had been appointed to the judiciary before the change, she could go on until she was 75. One can only guess at what might have happened if the change had been made before my noble and learned friend Lord Neuberger was due to retire.
There is just one other anomaly. There were different retirement ages depending on which part of the judiciary you were serving in. This Bill produces a single retirement age for everybody. As one who had to grapple with complaints about the differences in retirement age and the opportunities for service after retirement when I was Lord President of the Court of Session in Scotland, I very much welcome the uniform approach that this Bill now takes.
My Lords, I am absolutely no expert on pensions, and I have been absolutely delighted to listen to the speeches today, because there is obviously an expertise in this House that makes up for my very serious lack. I shall look forward also to receiving briefings from relevant groups as we move to Committee, because the Bill has so many technical aspects that I think we will need the help of relevant interests, including the trade unions, to negotiate our way through the remaining phases.
The history of public service pension change is rather littered with unanticipated consequences, and indeed we are here today because of the judgment in the McCloud case on discrimination, which was itself an unintended consequence. I also pick up the point made by the noble Lord, Lord Davies, that if we look at the broader context of public service pensions, we see a whole lot of issues that are not covered by this Bill—I think that some of them are meant to be addressed in the next Finance Bill—which makes it very difficult to shape the legislation before us today.
I had the privilege of being at the briefing that the Minister kindly offered to all Peers yesterday and I want to pick up on an issue raised by the noble and learned Lords, Lord Etherton and Lord Judge—although I would never want to put words into the mouth of the noble and learned Lord, Lord Judge; I think he will speak for himself in Committee. The issue is the impact on diversity of the change in the retirement age of the judiciary. I think that everybody in this House would say that it is important that our senior judges in the Court of Appeal and the Supreme Court reflect the society that we live in if they are to be respected and seen as part of our current era. At the moment, they do not. I am very concerned about the block that will be created. The noble and learned Lord, Lord Etherton, essentially said that we would not see a lot of turnover in the Court of Appeal for some 12 to 13 years, so the possibility of people from ethnic minority backgrounds and of women being seen in the Court of Appeal will be significantly impacted by the increase in the retirement age—and I do think that matters.
When we discussed this yesterday, the Government took the position that a blockage for somewhere between five and 12 years would advantage women—for example, those who have taken maternity leave will be able to make up the experience to make them more eligible to be put on the court. My answer was, “Have you talked to those women? Have you talked to the ethnic minorities?”—the people who will be impacted by what will be effectively a block on the turnover of appointments.
I understand that there were questions on diversity in the relevant consultation, but we all know that consultations are dealt with by the usual suspects—those are the people who reply. It is incumbent on the Government, if they are going to put in place what effectively is a very significant block on seeing diversity among our senior judges, to go back to that pool of people and talk to them about their views on the impact this will have. That is not a very difficult thing to do, and I hope we will see it.
There are quite a number of issues in the Bill. Again, I wish I had greater expertise, but from looking at the various briefings I have been able to lay on my hands on and replies to the consultation, it appears that there are a number of pension traps. People who find themselves in both the legacy system and the new system may be trying to make career decisions and find that they are disadvantaged in one scheme but advantaged in another and they have no idea how to put the various pieces together. The Police Federation is particularly concerned. It raised the issue of women in the police force who take maternity leave and have been able to work for additional years to make up the lost pension under their scheme. That is now not going to work. People who work part-time will be paying much more into the scheme, pound for pound, than full-time workers.
There is a whole series of flaws here and I would like the Minister to deal with them. There is no point repeating another Bill that has a lot of unintended consequences. I join very much with my colleagues, particularly with my noble friend Lady Janke’s comments. With a system that is now so complex, many people will need advice to know what to do. Surely there ought to be some provision to fund that or at least give them reasonable access.
The noble Lord, Lord Davies, raised on the cost control mechanism. I am appalled that the 2016 valuation is still hanging fire. I know that it will be resolved, but, like him, I am very concerned about how a rational 2020 valuation scheme will be put in place. We are in such economic flux. This is a really difficult time to put in place frameworks for something like a valuation. If you add to that the fact that the change in the scheme presumably means that people will be making all kinds of pension choices which will put pressure on any kind of set ceiling, the notion that the members will all have to pick up the cost strikes me as extraordinary. We need the Minister to elaborate on that and to understand what the consequences will be.
At the meeting yesterday, the Minister said that as a new scheme is developed for 2020 and the review that is currently under way is completed, it will require primary legislation to bring it into effect. I would like some confirmation of that, because if something that significant is going to come to us, either through Treasury direction as the noble Lord, Lord Davies, described, or even through a statutory instrument, it will be very hard for us to get a grip on the way the system works.
Lastly, I will tackle an issue that I have raised many times in this House, which is very relevant to this Bill. The problems judges faced following the changes in 2015 were a consequence of the annual and lifetime pension relief allowances and the taper system included with those changes. When they were initially put in place they were not a problem because of where the thresholds were set, but as those changed over the years they have become a major problem. Indeed, lawyers found that if they became judges, they would lose not only any additional income, but pension as well. That is an impossible situation.
This did not apply just to judges: consultants in the NHS faced exactly the same problem if they worked for a weekend. Because of the way the NHS pension scheme is set up they would have to pay tax that not only wiped out the additional income but went way beyond that. In our Armed Forces—to me this is utterly outrageous and got me involved in this issue in the first place—two-star colonels are basically refusing to become three-star because the consequences would be so bad. They would either have to pay very large tax bills, wiping out any additional income by, or take severely reduced pensions. That is insanity.
The Government dealt with some of that for the NHS and the armed services by changing the thresholds in the last Budget, but it is a sticking plaster, and what we see now for the justices is a permanent way to resolve the problem. Essentially, the scheme will no longer be tax registered and therefore the problem goes away for the justices, but we should be using this Bill to fix the problem for everybody else. If it is not going to be fixed in this Bill, when is it going to be fixed? It is insanity to say to our senior military, “You’re going to be on the battlefield, you’re obviously not going to leave after you’ve done so many hours and come home, and the consequence is that you will find yourself with a huge tax bill that will, frankly, cause havoc for your family.”
We have lost most of our two-star colonels—they have refused to go to three-star and have gone to civvy street—and we have consultants who worked during the pandemic knowing that they would essentially be paying a very large price as a consequence because it would impact on their taxes or pensions, depending on the way they set up their arrangements.
I believe that it is vital to this country that our public servants are properly and fairly compensated with both pay and pensions. The Government really made a hash of reforming these schemes in 2015; the Bill is part of the clean-up, but let us make sure that it brings clarity and fairness to all parts of the public service pension arrangement.
My Lords, I thank the noble Viscount, Lord Younger, for introducing the Bill. I think I am right in saying that both he and I are laymen on this subject in that we are not lawyers or pension experts.
On the public sector pensions, clearly there is a problem which needs to be addressed following the findings of the McCloud ruling. I note that the Supreme Court denied the Government leave to appeal the finding. The Public Accounts Committee has called the Government’s problem a
“£17 billion mistake on pensions reform”.
I recognise that the remedy the Government have opted for, to be included in this Bill—the deferred choice underpin, the DCU—was preferred by a significant majority of respondents to the government consultation, including main trade unions such as UNISON and GMB. The DCU remedy would give people the choice at retirement as to how their pension should be calculated during the period 2015 to 2022. What measures will be in place to ensure that individuals affected will have the information they need at the point of retirement to make an informed decision? This important question was put by the noble Baroness, Lady Janke, and repeated by the noble Baroness, Lady Kramer, and it deserves an answer.
I believe there is a lack of clarity about who will bear the costs of these measures. The noble Baroness, Lady Janke, quoted from the Public Accounts Committee, which has also raised this point about who will bear the costs. Can the Minister explain how these costs will be met, and what impact this will have on future public spending decisions?
Before I move on to the cost control mechanism, I should say how grateful I am for the expertise demonstrated by my noble friend Lord Davies. I also found it particularly interesting that my noble friend Lord Hendy spoke of the context of the police in these proposed changes and how that is impacted within international law. My third noble friend, the noble Lord, Lord Mackenzie, also gave a very interesting and quite alarming explanation of the treatment of the police force regarding these proposed pension changes.
As far as I understand it, there are two problems: the original design of the CCM made it too volatile and the McCloud judgment has created a significant uncertainty, which members have now been living with for more than two years. The Government ran a consultation on the CCM mechanism, which closed on 19 August. When does the Minister anticipate that they will be able to respond to this consultation? Is he in a position to express any view on the key views expressed to the Government in that consultation process?
Clause 80 provides that the breach of the cost cap ceiling in the 2016 valuation will be waived. Trade unions are concerned about where the cost of that waiver will eventually fall and the impact of the McCloud remedy on the 2016 valuation. The impact of the valuation, when we get it, was a point raised by my noble friend Lord Davies and the noble Baroness, Lady Kramer. Separately, can the Minister confirm the Government’s commitment that any benefits improvements due to the breach of the cost floor will be honoured, and further—this was also a point made by my noble friend Lord Davies—that the increased use of Treasury directions for matters that should be subject to parliamentary scrutiny should be at a minimum, because Parliament should be involved as the CCM evolves? Clearly, we will want to scrutinise these things carefully as the Bill proceeds.
I turn to the proposed changes to the judicial retirement age, and here I declare an interest as a serving magistrate. We know that the existing provisions have been in place for 27 years, and we have had a great deal of personal expertise from the noble and learned Lords who have contributed to today’s debate. I will put forward a different view from the one proposed; it is more in line with the views expressed by the noble and learned Lord, Lord Etherton.
In the consultation, the overwhelming number of respondents—some 84%—supported raising the mandatory age of retirement. However, a large body of respondents preferred the age of 72 rather than 75. The people who preferred 72 were the Lord Chief Justice of England and Wales, the Lord Chief Justice of Northern Ireland, the President of the Supreme Court, the Lord President in Scotland, the Magistrates’ Leadership Executive, the Chief Coroner of England and Wales, and the President of Tribunals. All these individuals and bodies favoured 72, not 75. There are debates on this, but it is worth exploring a couple of the reasons why 72 is preferable to 75. Diversity is an important issue; I agree with the points made by the noble Baroness, Lady Kramer, on that. I also agree with her point about the importance of consultation. I do not know whether the Minister can say anything about whether members of the black community have been consulted on these proposed changes; they are liable to disadvantage their prospects for promotion within the judiciary.
I also want to raise a different subject, and here I speak as somebody who appraises magistrates. There are occasions when a small number of people—judges—may experience some level of mental decline. Clearly, there is an appraisal system for trying to deal with this, but it is a sensitive issue. I have probably appraised getting on for hundreds of magistrates over the last few years. One has to be frank: the prospect of mental decline accelerates over the age of 70. There needs to be a mechanism for sensitively dealing with these issues. That also argues in favour of a retirement age of 72 rather than 75, so that these issues of mental decline are not exacerbated.
We in the opposition party support the Bill. We will work constructively with the Government to look at the detail of it, and we wish it well.
My Lords, this has been a somewhat short debate but, as always, the experience and knowledge in this Chamber has been extremely insightful on what I think we all agree is a pretty complex subject. I thank all noble Lords for their contributions, not least acknowledging the specific experience of the noble Lord, Lord Davies. I have also counted that out of the 11 or so speakers in this debate, there were no less than five noble and learned Lords—so no pressure there. I will give proportionately a little more time to touching on judiciary matters, because I think it is fair to say that the mood, tone and indeed content of the debate was more steered towards that direction. That is not to say that there are not a number of other questions that need to be answered, which I will attempt to do. There have been some technical and specific issues raised, and I will endeavour to answer as many questions as I can, but it may be that a letter—maybe a longer one than normal—is required to follow up on the technical issues.
I start by answering probably the first question raised by the noble Lord, Lord Davies, on the timetabling for the Bill. To reassure the House, we aim for the Bill to have Royal Assent in early 2022, so that Chapter 4 can come into force on 1 April 2022, as set out in Clause 113, on commencement. However, noble Lords may recall that the Government set out in their consultation response in February this year that schemes would have until 1 October 2023 to introduce retrospective changes, in order to balance bringing the discrimination identified by the courts to an end as soon as possible with giving schemes and administrators the time needed to establish systems to deliver the necessary changes. Clause 113 therefore provides that Chapter 1 will enter into force on 1 October 2023, or earlier if specified in regulations. I hope that goes a little way to answering the question raised by the noble Lord, Lord Ponsonby.
Before I address the themes and questions raised, I wanted to use this occasion to give a little more background to what we are trying to do in the Bill; in particular, this might help to address some of the concerns the noble Baroness, Lady Kramer, expressed about the 2015 reforms. By 2010, the cost of providing public sector pension schemes had increased significantly over the previous decades, with most of this increase falling to the taxpayer. At the same time, occupational pension provision in the private sector had changed significantly; employers were increasingly moving away from offering defined benefit pension schemes.
The commission set up in 2010 found that the existing structure had been unable to respond flexibly to workforce and demographic changes that had occurred over the previous few decades, and that this had led to rising value of benefits due to increasing longevity, the unequal treatment of members within the same profession, the unfair sharing of costs between members, employers and taxpayers, and barriers being put up to increasing the range of providers of public services. The final salary design of schemes was criticised for creating unequal treatment of members within the same employment. The commission’s final report, in March 2011, therefore recommended moving public service scheme members to reformed schemes with benefits calculated on CARE—the House will know that this is career average revalued earnings—rather than based upon final salary.
To control against the risk of rising longevity—which we know is there—the commission recommended increasing the normal pension age to 60 for the Armed Forces, police and firefighters, and to state pension age for all other schemes. In line with wider changes to the use of price indexation in government, changes were also made to the measure of inflation used to uprate pensions, from the retail prices index to the CPI—the consumer prices index. Member contribution rates were also increased across the schemes, other than that relating to the Armed Forces, by an average of 3.2% of pay. The House may well know this, but I think it is helpful to produce this rather complex background as to why we are where we are today.
Overall, the reform schemes were designed to ensure that members would have good pensions which, at a minimum, met the target levels identified by the pension commission of the noble Lord, Lord Turner, for the income needed in retirement. The reform designs should provide many low and middle earners working a full career with pension benefits at least as good as, if not better than, those under the previous arrangements.
I will move on to some of the issues that were raised. The first was the so-called differential treatment of judges. This was raised particularly by the noble Lord, Lord Davies, and touched on by the noble and learned Lord, Lord Hope. In addressing the point, I will highlight the difference in the recruitment and retaining of judges in particular, which distinguishes them from other public servants. Judges follow a unique career path. They often have long careers in the private sector and take up judicial office at a later stage in life. Many take a pay cut when joining the Bench. Therefore, appointment as a salaried judge in the UK is seen as the culmination of a barrister’s or solicitor’s career, rather than a career path in and of itself. This contrasts with the position in countries such as France, Germany and Italy, which all have career judiciaries, and where the judicial profession is separate from practising as a lawyer. The House may not know that salaried judges in this country may not return to private practice as a barrister or a solicitor.
Reflecting this difference with other public sector workers is important. When we return judges to a tax-unregistered scheme—which is the position that they were in prior to 2015—without these changes there would be continued issues with recruiting judges, threatening the effective functioning of our justice system and its reputation. While the scheme will be unregistered, it is important to note that other aspects of the scheme will be consistent with the principles of the 2015 pension reforms, to ensure its long-term affordability and fairness to the taxpayer.
This matter was raised by the noble Baroness, Lady Kramer, who asked why this could not be extended to other groups. I hope that I have helped to put our view on that. The noble Baroness raised the matter of military generals and touched on doctors, but I stress, on that point, that the manifesto committed to addressing recruitment and retention issues for doctors through the pensions tax system. At the Budget in 2020, the Government spent £2.175 billion on increasing the annual allowance taper threshold and adjusted income limit. These measures apply to all individuals across the UK and are a significant step in resolving this issue. These changes mean that any public servant whose sole income after deducting pension contributions is less than £200,000 has been taken out of scope altogether. We estimate that these changes have taken up to 90% of GPs and up to 98% of NHS consultants outside the scope of the tapered annual allowance. I am sure that there is more that I can say on that, but I hope that it provides some explanation to the noble Baroness, and to the noble Lord, Lord Davies, who raised the same point.
Moving on to the subject of what might rather loosely be termed judicial diversity, there was quite an interesting debate on this. Many noble Lords touched on diversity, linking it to the mandatory retirement age. I will perhaps give a more expansive response to this. I was pleased to hear the initial debate raised by the noble and learned Lords, Lord Woolf and Lord Brown, and my noble and learned friend Lord Mackay. I was particularly interested that he was the one who originally lowered the age from 75 to 70 and that he is now behind our move to raise it again to 75—that was a very interesting reflection from my noble and learned friend.
To give a little background on this, the Government are absolutely clear on the importance of judicial diversity and of having a judiciary that is representative of society. That is why the Ministry of Justice, as a member of the Judicial Diversity Forum and of the magistrates’ recruitment and attraction steering group, is committed to continuing the work to improve diversity across the judiciary and the recruitment pipeline.
I recognise that concerns have been expressed over the impact on judicial diversity of a higher retirement age. Let me start by saying that we acknowledge that the retention of older officeholders could have an impact on the flow of new appointees to judicial office, which may impact on the rate of diversity change. However, as some noble Lords have recognised, there is another side to the story. As many judicial officeholders do not continue to sit until 70 now, we do not expect that all will wish to continue in office until 75. For that reason, and because of the ongoing demands on our courts and tribunals, we will continue to recruit a high number of new judges and magistrates for some time, so we expect that the overall diversity will continue to improve, reflecting the greater diversity of new appointments. The Government also believe that there will be positive diversity impacts from mandatory retirement at 75, and we expect it to encourage applications from a more diverse range of candidates, including those who may have had extended career breaks to balance professional and family responsibilities, or from lawyers who feel ready to apply to the judiciary later in their career.
I should have mentioned the noble and learned Lord, Lord Etherton, and I noted, particularly from him, that he declared that he was—how should I put it?—less than impressed with the decision that we have taken and has asked us to think again. That came also from the noble Baroness, Lady Kramer. However, I do not believe that we will be doing that, and I hope that this explanation will help.
I will move on to the consultation, which was also raised by a few Peers, including the noble Baroness, Lady Kramer, and the noble Lord, Lord Ponsonby. I reassure the House that the decision to raise the mandatory retirement age to 75 was taken after careful consideration. The consultation in 2020 received over 1,000 responses and—as was raised this afternoon—84% supported an increase. I acknowledge that there were mixed views on the age at which it should be set: 67% supported an MRA of 75, recognising that the limited diversity impact was outweighed by the retention benefits and the flexibility afforded to judicial officeholders to sit longer. The Government are confident that an MRA of 75 will provide the right balance—and it is a balance—between protecting the need to have a mandatory retirement age and the benefits to the justice system from retaining such valuable expertise for longer and attracting a wider range of applicants. However, as I said in the briefing yesterday, I have pledged to write, particularly to the noble Baroness, Lady Kramer, and I will do so to all noble Lords who have taken part in the debate today, with some further detail on the feedback from the consultation, particularly in relation to feedback from women, which was raised by the noble Baroness, and from the black community, as raised by the noble Lord, Lord Ponsonby.
Another important subject is the cost control mechanism—the so-called CCM—which was raised by the noble Lord, Lord Davies, and the noble Baroness, Lady Janke; the noble Lord, Lord Ponsonby, also touched on this. As was mentioned, the Government’s consultation on changes to the cost control mechanism closed on 19 August. The Government are considering all responses received and will publish their conclusions shortly. The aim is to implement any changes in time for the 2020 valuations, and the Government will legislate for any changes once they have responded to the consultation and when parliamentary time allows. However, I want to give a little more detail on this, because it is an important subject—particularly the 2016 valuations.
The cost control element of the 2016 valuation process was paused, as we know, in light of the McCloud judgment regarding transitional protection. The potentially significant and uncertain impact arising from the court’s judgment made it impossible to assess with any certainty the value of schemes to members. In July 2020, the Government announced that this pause would be lifted and the 2016 valuations completed. HMT will, when possible, set out in directions the technical detail of how the restarted 2016 valuations will operate. Outcomes for individual schemes will not be known until the results have been finalised. The noble Lord may not find this answer satisfactory, but I am afraid that it is the only answer I can give this afternoon.
The related issue of member cost was raised, not least by the noble Lords, Lord Davies and Lord Ponsonby. The Government have announced that the legislative remedy should be taken into account when completing the cost control element of the 2016 valuations. This is because, when the cost control mechanism was established, it was agreed that it would consider only costs that affect the value of schemes to members. Addressing the discrimination, giving members a choice of scheme benefits for the remedy period, involves increasing the value of schemes to members. The usual way these costs are managed is through the cost control mechanism. However, as I mentioned in my opening speech, this Bill will waive the impact of any ceiling breaches that may occur, so that no member will see a reduction in benefits as a result of the 2016 valuations—although any floor breaches will be honoured.
I move on to another important subject, the Police Superintendents’ Association, which was raised by a number of Peers, including the noble Lords, Lord Hendy and Lord Davies, the noble Baroness, Lady Janke, and the noble Lord, Lord Mackenzie. As the House might expect, I cannot comment too much on the specifics of any live, ongoing litigation. However, I confirm that this Bill will ensure that all eligible public service workers have access to high-quality defined benefit schemes on a fair and equal basis. From 1 April 2022, all those who continue in service in the main underfunded schemes will do so as members of the reformed schemes, regardless of age. Legacy schemes will close to future accrual, which means that from this point onwards all members will be treated equally in terms of which pension scheme they are a member of. I noted very strongly the points raised in particular by the noble Lord, Lord Mackenzie, and, while I cannot comment too much, I shall pledge to pass his comments on.
I want to say a little more on this point. The Government consulted on proposals to remedy the discrimination identified by the courts in July 2020. Officials met with the scheme advisory boards for the public service schemes, including the scheme advisory board for the police pension scheme. The Government published the response in February this year, and officials have arranged a further meeting tomorrow to discuss the Bill with stakeholders, including the Police Superintendents’ Association. The Home Office will undertake further consultation with employee representatives of the police pension scheme in relation to the scheme regulations, which will set out the detailed changes to the scheme. I hope that gives some comfort that some progress has been made.
I have not really managed to answer properly some of the questions raised by the noble Baroness, Lady Janke. Can I say something about trust? She raises a very important point—that trust between the Government and all the public service sector workers and the operators of the scheme is incredibly important. She made the point that perhaps the trust is not there and, okay, I have noted that and will pass it on. Perhaps we need to work hard on that, but it may be linked to the fact that these matters are extremely technical; there are a number of matters that we need to sort out, as she knows. She herself mentioned that this Bill and this area are quite complicated.
In the same breath, may I answer a point raised by the noble Baroness and by the noble and learned Lord, Lord Hope, about giving information to members to inform them on decisions that they might care to make as a result of the transitional period decisions? As I said at the beginning, statements will be provided so that individuals can weigh up the choices. By the way, that is the case for the judiciary as well, just to reassure the noble and learned Lord on that.
I shall check Hansard, as there were probably a number of other questions, but I hope that I have covered the main themes from this important debate. I finish by thanking all noble Lords for their contributions. It is very important to say that we must ensure that those who deliver our valued public services continue to receive guaranteed benefits on retirement on a fair and equal basis and in a way that ensures that pensions are affordable and sustainable. I commend the Bill to the House.
Bill read a second time and committed to a Grand Committee.
The following Statement was made in the House of Commons on Monday 6 September.
“With permission, Mr Speaker, I will update the House on the situation in Afghanistan and our enduring effort to provide sanctuary for those to whom we owe so much.
Since the House last met, our Armed Forces, diplomats and civil servants have completed the biggest and fastest emergency evacuation in recent history, overcoming every possible challenge in the most harrowing conditions, bringing 15,000 people to safety in the UK and helping 36 other countries to airlift their own nationals. They faced the pressure of a remorseless deadline and witnessed a contemptible terrorist attack at the very gates of the airport, with two British nationals and 13 of our American allies among the dead. But they kept going, and in the space of a fortnight they evacuated our own nationals alongside Afghan friends of this country who guided, translated and served with our soldiers and officials, proving their courage and loyalty beyond doubt, sometimes in the heat of battle.
The whole House will join me in commending the courage and ingenuity of everyone involved in the Kabul airlift, one of the most spectacular operations in our country’s post-war military history. This feat exemplified the spirit of all 150,000 British service men and women who deployed in Afghanistan over the last two decades, of whom 457 laid down their lives and many others suffered trauma and injury. Thanks to their efforts, no terrorist attack against this country or any of our western allies has been launched from Afghanistan for 20 years. They fulfilled the first duty of the British Armed Forces: to keep our people safe. They and their families should take pride in everything they did.
Just as they kept us safe, so we shall do right by our veterans. In addition to the extra £3 million that we have invested in mental health support through NHS Op Courage, we are providing another £5 million to assist the military charities that do such magnificent work, with the aim of ensuring that no veteran’s request for help will go unanswered. The evacuation, Op Pitting, will now give way to Operation Warm Welcome, with an equal effort to help our Afghan friends to begin their new lives here in the United Kingdom, and recognising the strength of feeling across the House about the plight of individual Afghans.
Years before this episode, we began to fulfil our obligation to those Afghans who had helped us, bringing 1,400 to the UK. Then, in April this year, we expanded our efforts by opening the Afghan relocations and assistance policy. Even before the onset of Operation Pitting, we had brought around 2,000 to the UK between June and August—and our obligation lives on. Let me say to anyone to whom we have made commitments and who is currently in Afghanistan: we are working urgently with our friends in the region to secure safe passage and, as soon as routes are available, we will do everything possible to help you to reach safety.
Over and above this effort, the UK is formally launching a separate resettlement programme, providing a safe and legal route for up to 20,000 Afghans in the region over the coming years, with 5,000 in the first year. We are upholding Britain’s finest tradition of welcoming those in need. I emphasise that under this scheme we will of course work with the United Nations and aid agencies to identify those whom we should help, as we have done in respect of those who fled the war in Syria, but we will also include Afghans who have contributed to civil society or who face a particular risk from the Taliban, for example because of their role in standing up for democracy and human rights or because of their gender, sexuality or religion. All who come to our country through this safe and legal route will receive not a five-year visa, but indefinite leave to remain.
Our support will include free English courses for adults, and 300 university scholarships. We will shortly be writing to local authorities and the devolved Administrations with details of funding for extra school places and long-term accommodation across the UK. I am grateful for everything that they are doing, and, of course, for the work of the Under-Secretary of State for the Home Department, my honourable friend the Member for Louth and Horncastle, Victoria Atkins, who is the Minister for Afghan resettlement. I am delighted—but not surprised—that across our country, people have been fundraising for our Afghan friends, and we have received numerous offers of help from charities and ordinary families alike. Anyone who wishes to join that effort can do so through GOV.UK.
Our first duty is the security of the United Kingdom, and if the new regime in Kabul wants international recognition and access to the billions of dollars currently frozen in overseas accounts, we and our friends will hold them to their agreement to prevent Afghanistan from ever again becoming an incubator for terrorism. We will insist on safe passage for anyone who wishes to leave, and respect for the rights of women and girls. Our aim is to rally the strongest international consensus behind those principles, so that as far as possible the world speaks to the Taliban with one voice. To that end, I called an emergency meeting of the G7 leaders which made these aims the basis of our common approach, and the UK helped to secure a UN Resolution, passed by the Security Council last week, making the same demands. Later this month, at the UN General Assembly in New York, I will work with UN Secretary-General Guterres and other leaders to widen that consensus still further. We will judge the Taliban by their actions, not their words, and will use every economic, political and diplomatic lever to protect our own countries from harm and to help the Afghan people. We have already doubled the UK’s humanitarian and development assistance to £286 million this year, including funds to help people in the region.
On Saturday, we shall mark the 20th anniversary of the reason why we went into Afghanistan in the first place: the terrorist attacks on the United States which claimed 2,977 lives, including those of 67 Britons. If anyone is still tempted to say that we have achieved nothing in that country in 20 years, tell them that our Armed Forces and those of our allies enabled 3.6 million girls to go to school; tell them that this country and the western world were protected from al-Qaeda in Afghanistan throughout that period; and tell them that we have just mounted the biggest humanitarian airlift in recent history. Eight times, the Royal Air Force rescued more than 400 people on board a single plane—the most who have ever travelled on an RAF aircraft in its 103-year history—helping thousands of people in fear for their lives, helping thousands to whom this country owes so much, and thereby revealing the fundamental values of the United Kingdom.
There are very few countries that have the military capability to do what we have just done, and fewer still which would have felt the moral imperative to act in the same way. We can be proud of our Armed Forces for everything they have achieved, and for the legacy they leave behind. What they did was in the best traditions of this country. I commend this Statement to the House.”
My Lords, just so there is no confusion, the Lord Privy Seal has not repeated the Statement; we have to rely on having heard the Prime Minister say it. I am a little disappointed that the Statement is being considered at the end of business today, given the importance of this issue. The Government made two Statements in the House of Commons; I had expected them to be repeated between the two Second Readings and was somewhat surprised this morning to find that they were so late, as it may affect the number of Members who are able to take part.
Having watched the very distressing evacuation scenes, I think we all have nothing but praise for the heroic work of the British troops, our diplomats and our civil servants, who were operating in incredibly difficult circumstances. They were having to manage a chaotic situation, following a series of failures and miscalculations by the Government. It was interesting that the Prime Minister’s Statement referred to them facing “every possible challenge”; it must be said, one of those challenges was a failure of political leadership, being utterly unprepared for what was to come. That withdrawal had been more than 18 months in the making, but the Government were unprepared, had been unwilling to plan and seemed unable to take a lead. Even in those final weeks before the fall of Kabul, Mr Raab failed to speed up evacuation efforts, failed to issue warnings to British nationals and failed to prepare the department’s crisis response. Even when he gave evidence to the Select Committee, he was rather hazy on the numbers of those, both Afghans and UK citizens, who have been left behind.
The Government have previously said that it was not realistic to stay beyond the US deadline. I think we all accept that, but I have put this question to the noble Baroness—I see she is taking note of what I am saying— I think twice before on previous Statements: what representations did the Government and Ministers make, mainly to the Americans but also others, on the management and timescale of the withdrawal? I am not clear about this and am trying really hard to get to the bottom of it: did the Government ever go back and say to the Americans and NATO, “This will be terrible under this timescale. It will be a disaster. We understand that you are moving US troops out, but can we reconsider how it is done?”
In the final days, as the Taliban entered the city, both Mr Raab and Mr Johnson—the Prime Minister and the Foreign Secretary—were away on holiday. I am not against Ministers taking holidays—we all need holidays—but there is an issue here of timing and priorities. We know that this is a Government clearly out of their depth, but those chaotic final days of the UK’s role in Afghanistan should not be allowed to undermine in any way the achievements of the past 20 years. The sacrifice of British veterans was not in vain. Their incredible efforts with allied forces facilitated stability and progress throughout Afghanistan, and we should all be proud of their service.
Unfortunately, recent events have opened up old wounds for veterans across the UK. The Government must recognise this and allocate the essential resources and establish the right support structures for them. I say to the noble Baroness, I welcome the additional funding announcement, albeit overdue, but that must sit alongside a strategy to confront the structural barriers that veterans are facing in the employment market, in healthcare and in their daily lives. It would be helpful if she could now confirm whether the Office for Veterans’ Affairs will still face a 40% cut in its budget this year. There must also be recognition for the more than 1,000 UK personnel who took part in Operation Pitting, which airlifted 15,000 people as the country fell to the Taliban. Unfortunately, as she may be aware, troops are not eligible to receive medals as this mission did not meet the 30-day service rule. I think most of us feel that, in these specific and special circumstances, surely that convention should be waived and we should reward the heroic efforts of troops who took part in Operation Pitting.
With the airlift now over, the focus must shift to the lifelong support that we can offer to those Afghans who worked side by side with our troops. I am disappointed that the Government still have not outlined the full details of the Afghans citizens resettlement scheme. We look forward to receiving them. Many of those evacuated are still uncertain and in the dark about their immediate future, let alone their medium- and long-term future. Can the Leader of the House outline when the resettlement scheme will begin and how many people are expected to join it? Can she also say something about how many evacuated Afghans are currently being housed in hotels and other temporary accommodation and how many have been moved into permanent or semi-permanent accommodation? Given that councils—I cite Greenwich Council—have already written to the Government asking for help in supporting refugees and are trying to do their best, what support has been made available to local authorities?
As we look to Afghanistan’s future, we cannot abandon those who have been unable to escape. The Government have to explore all opportunities to support the establishment of viable and safe routes for those who are now in danger. The PM said in his Statement:
“We will insist on safe passage for anyone who wishes to leave”.—[Official Report, Commons, 6/9/21; col. 22.]
I want to probe what “insist” means. Yesterday, the Foreign Secretary said that the Taliban had offered assurances in this area, but he could not expand on that. It would be helpful if the Leader could say tonight what assurances have been received and what degree of confidence the Government have in those assurances.
We also have to confront the reality of the impending humanitarian crisis, where 40% of the crops have been lost through drought. While funding is important, efforts need to be made—perhaps the Leader could say more about this as well—to ensure that food and life-saving medicines are allowed into the country.
On security, human rights and many other issues, the UK needs to work with other countries and NATO to craft a clear diplomatic road map that seeks to protect the gains of the past 20 years. I am thinking specifically, but not exclusively, about the progress on the rights of women and girls. I am sure that, like me, the Leader has seen distressing accounts over the past few days of how women peacefully protesting the basic rights that those of us in this House take for granted have been met with aggression and violence. The efforts of the UK at the UN to secure a Security Council resolution are welcome, but they have to be followed up with prime ministerial intervention. What is the UK’s plan for ensuring that the Taliban are held to their word? What did the Prime Minister agree during his meeting with Secretary-General Guterres? Does he have any plans to continue to engage with the P5 on the implementation of the resolution that was passed at the meeting?
We cannot allow Afghanistan to be a safe haven for terrorism again and neither can we sit by as the Taliban tear down the basic rights that the Afghan people have enjoyed. The Government’s incompetence has let down the Afghan people who have so bravely worked alongside our personnel for two decades. That incompetence also puts us in danger. The security implications of recent weeks are grave and long-lasting and we cannot afford to ignore the risks that we now face. The humanitarian crisis, the displacement of people and the proliferation of extremism can now grow in Afghanistan. While our response should be driven by the need to help the Afghan people, we must also understand that a failure to do that for them will endanger us all.
My Lords, I echo the Prime Minister’s commendation of the courage and ingenuity of everybody involved in the Kabul airlift. It was indeed the most impressive achievement.
This is a remarkably thin Statement. It does not contain any new facts or commitments to the people of Afghanistan, either in the UK or in Afghanistan. In terms of Afghans who want to come to the UK, in the Statement the Prime Minister repeated two promises: first, that for those to whom we have already made commitments, we will do our best to honour them; and, secondly, that beyond that we will work with the UN and other aid agencies to identify those we should help, as well as
“Afghans who have contributed to civil society or who face particular risk”
because they have stood up
“for democracy and human rights or because of their gender, sexuality or religion”.—[Official Report, Commons, 6/9/21; col. 22.]
I support those commitments, but fear that the first is unachievable in the foreseeable future and that the second offers false hope to many thousands of people. The first is unachievable because we have no means to get people who have a right to come to the UK out of the country. They cannot fly out, and many of the border crossings are, in effect, closed to them. To echo the noble Baroness, Lady Smith, how much confidence do the Government have that the Taliban will give those people safe passage? Do they even know how many of them there are? How are they planning, in the absence of any diplomatic presence in the country, to facilitate their departure?
On the second commitment, the number of people in the categories which the Government wish to help runs into the tens, if not hundreds, of thousands. How does the Government’s commitment to welcoming them into the UK square with their absolute limit of 5,000 refugees over the coming year? How will they decide who to prioritise when confronted with such large numbers of people who they say are technically eligible for visas and who are desperate, for their own safety, to leave the country now, not at some point over the next five years? The Government’s response to requests to take more than the 5,000 is that it is beyond the country’s capacity to do so. This claim does not withstand scrutiny. Even the Prime Minister accepts that the Government are inundated with offers of help from charities and ordinary citizens, and the Government appear to be doing nothing to require the large number of local authorities which are not offering to take a single refugee to play their part. Will they do so now? The fact is that the 5,000 one-year cap and the longer-term 20,000 cap have nothing to do with need. They are, frankly, the minimum that the Government think they can get away with, and they should do better.
The Prime Minister says that the UK will use
“every economic, political and diplomatic lever to protect our own countries from harm and to help the Afghan people.”—[Official Report, Commons, 6/9/21; col. 22.]
Again, that is a positive statement, but what does it amount to? On economic support through development aid, how do the Government intend to ensure that funds can be channelled in an effective way? How closely are they working with the UNDP, which seems to be developing pragmatic working relations with the Taliban? Will they make the disbursement of aid funds contingent on the Taliban keeping its promises; for example, in respect of safe passage or human rights?
On political and diplomatic levers, it is good to see the Foreign Secretary engaging—at last—with the Qatari and Pakistani Governments. In his Statement, the Foreign Secretary sets out some of the issues he discussed in those meetings, but not the outcomes. Can the Leader give the House any specific examples of action that will flow from that series of meetings?
In relation to dealing with the Taliban Administration, the Government say that they will now engage with them, which I am sure is the right approach, and they have appointed a non-resident chargé d’affaires in Doha. While that is welcome, it must surely be desirable to work towards re-establishing a physical diplomatic presence in Kabul. There are clearly challenges in doing so, but to what extent are the Government working with other western Governments, who also need to re-establish their position in Afghanistan, to facilitate that? Have they, for example, spoken to the EU, which is looking to set up a single diplomatic presence in Kabul? There will surely be administrative and security benefits in co-locating with such an office. Are the Government considering that possibility?
More generally, the Afghan debacle has shown the need for the UK to recalibrate its whole foreign policy stance and, in particular, to rebuild relations with the US, through NATO, and with the EU. The Statement is silent on these larger issues, but, frankly, until we address them, much of the micromanagement of the next phase of our involvement with Afghanistan is bound to be more difficult to deliver, making it more difficult for us to deliver on the promises that the Government have already made to the people of Afghanistan.
I thank the noble Baroness and noble Lord for their comments. Like them, I pay tribute to all those involved in Operation Pitting. We of course owe a huge debt of gratitude to the 150,000 people who served in Afghanistan and to the 457 who tragically lost their lives.
The noble Baroness asked about withdrawal. As she will recall from the speech that I gave when we came back to discuss this important issue a few weeks ago, we looked at a number of options when the US announced the plan for withdrawal, including the potential for staying longer or increasing our presence. But like our NATO allies, we had to be realistic about what was achievable without US support, and, like our other allies, we did not feel that we could continue the mission without the United States. The noble Baroness will know obviously that the Prime Minister convened a G7 meeting, at which he and other leaders asked President Biden to reconsider the timescale with which the withdrawal was taking place. Unfortunately, as the situation has shown, he was not successful, but efforts were made.
The noble Baroness rightly talked about the importance of the mental health of our veterans. We take this extremely seriously, encouraging anyone who is struggling to access support available, including a 24-hour mental health line. I was grateful for her recognition of the increased funding that we have put into this. Earlier this year, we launched the veterans’ mental health and well-being service, Op Courage, which provides a clear single route for accessing specialist care through the NHS. In the last financial year, NHS England provided £16.5 million for veteran-specific mental health services, which will be increased to £17.8 million in 2021-22, with an additional £10 million to the Armed Forces Covenant Fund Trust to distribute to charitable projects supporting veterans’ mental health needs. Of course, funding for the Office for Veterans’ Affairs is a matter for discussion between it and the Chancellor.
On the various questions that were asked around resettlement and relocation, I once again reiterate to the noble Lord and noble Baroness that we are clear that the Taliban must ensure safe passage for people out of Afghanistan—with the ongoing engagement that is happening, we are emphasising this first and foremost. The Afghan relocations and assistance policy for those who worked in Afghanistan remains open, and we will facilitate relocation from third countries, if possible, for those who are eligible. I am sure that my noble friend, who has been involved in conversations, will be able to shed some further light on the discussions that have been going on with Pakistan and Uzbekistan, for instance. I reassure the noble Baroness that the Home Office is working at pace to establish the details of the new Afghan citizens resettlement scheme, which will provide protection for Afghan citizens identified as being most at risk. We have announced that this new scheme will relocate 5,000 vulnerable Afghans in the first year, with this potentially rising to 20,000 over a five-year period.
The noble Lord, Lord Newby, asked about an embassy in Kabul and what we are doing now. At this point, our diplomatic efforts have shifted to supporting the people of Afghanistan from outside the country, but we intend to re-establish an embassy in Kabul as soon as the security and political situation allows, and we are co-ordinating this effort with allies. The FCDO is sending rapid deployment teams to Pakistan, Uzbekistan and Tajikistan to reinforce our embassy staff to process arrivals from Afghanistan, and we have also sent a rapid deployment team of seven to help people to transit through Dubai.
The noble Baroness asked about support for local authorities and the work that they are doing. The support that we provide will be similar to the commitments that we have made under the Syrian resettlement programme, and we have already allocated £5 million of support to local councils to provide housing. Some 100 councils are already working across the UK to meet the demand for housing, and over 2,000 places have already been confirmed. The Communities Secretary is convening a round table with council leaders from across the country in the coming days to talk about how we can further work together to ensure that we can provide safety and security for the Afghans who have made it over here and to make sure that they can settle into local communities.
Both the noble Lord and the noble Baroness asked about the situation on the ground. I can reassure them that we are working closely with the UN and NGO partners to continue to ensure that vital humanitarian aid reaches those who most need it. All UK aid is subject to strict monitoring and verification to ensure that it is used only to help the vulnerable people it is intended for, and any support will be provided outside of all state apparatus. We will continue to provide support through trusted UN and NGO agencies that have a track record in delivering in challenging circumstances. As the noble Lord rightly said, the UN is working on the ground and is currently seeking commitments from the Taliban to enable humanitarian work to continue. These commitments include respect for humanitarian principles accessed in international law, as well as guarantees for female aid workers across UN agencies and NGOs. We continue to support it in that very important work on the ground.
Both the noble Baroness and the noble Lord rightly alluded to the fact that we have said we will continue to use every humanitarian diplomacy lever to safeguard human rights and the gains made over the past two decades. We are working, for instance, on options for convening a meeting in the margins of the UN General Assembly in September. The focus and format are still under discussion, but the objective will be to bring the widest possible group of countries together to discuss Afghanistan and how we can work with our international partners in this very difficult and challenging situation.
My Lords, the Prime Minister, Dominic Raab, other Ministers and the Chief of the Defence Staff are all very fond of the phrase, “Even the Taliban were surprised at the speed of the Afghan collapse.” They do not use this because we are interested; they use it because it is supposed to support an inference that we therefore should not be surprised that they were caught out by it, and to assert that everyone was surprised by the speed of the collapse. This is not true.
We now know that multiple US intelligence reports in spring and summer warned of the fragility of the Afghan army and the Afghan Government. If that were not sufficient—and it should have been—here in the United Kingdom the visiting professor of war studies at King’s College, a man called Tim Willasey-Wilsey, who spent 27 years in the Foreign Office on these issues, was freely writing blogs on the Cipher Brief, an open-source DC-based website, explaining all the factors in the inept deployment of the Afghan army and the behaviour of the Afghan Government that supported this fragility. The question for the Government is this: why did that information, which was in the public domain and being discussed, not ring alarm bells in the intelligence community and in the UK MoD? If that cannot be answered, why should anyone trust that the Government are being honest about the situation in Afghanistan?
I have to say to the noble Lord that we were working on preparations. The preparations for Operation Pitting, for instance, involved intensive work by many government departments over recent months. It was the huge effort, bravery and commitment of our Armed Forces personnel, diplomats and civil servants in Kabul that enabled us to evacuate more people than any other country, other than the United States. The specific evacuation plan for Afghanistan was revised in January 2021 and kept under review until it was enacted. So we were making preparations as the situation unfolded.
I must begin, once again, by declaring my interest as an ambassador for HALO, a charity that is continuing its mine clearance activities—and related activities, of course—in Afghanistan.
It is easy for all of us to commend the remarkable courage and ingenuity of everyone involved in the Kabul airlift. It was, if this does not overstrain the description, something of a miracle that it went so well. However, I very much regret that I cannot compliment the Government in the same way. Out of these terrible, damaging events, are there not three questions that now must be answered? First, is it not time to stop blaming everyone else? Secondly, is it not time to abandon the mirage of global Britain? Thirdly, is it not time to concentrate on the necessary reinvigoration of NATO and the transatlantic alliance?
I certainly agree with the noble Lord in his last comment. However, I dispute the idea that we have not been working with our international partners. Through the UN Security Council, the G7 and NATO, we have played a leading role in pushing for international consensus to agree a unified approach to the challenge we collectively face; that includes working with those organisations’ partners and our international friends to ensure that we can continue to get people who want safe passage out of Afghanistan out.
I agree with the noble Lord that all this needs to invigorate international action together but we have been playing a lead role. I have already mentioned the G7 meeting convened by the Prime Minister and the work we are doing to convene a potential meeting in the margins of the UN General Assembly. Of course, the noble Lord will be aware that, along with the US and France, we led on the UN Security Council resolution passed in August, which set out our expectations for safe passage for all those who wish to leave, urgent humanitarian access, respect for human rights and the prevention of terrorism. We are playing, and will continue to play, a leading role in these efforts.
My Lords, I fully commend the Government on the action that they took to support those who served with our forces and supported our people in Afghanistan. However, I have a question, although I do not expect the Lord Privy Seal to have an answer to it now. I want to put on her radar the fact that a question now arises in relation to Commonwealth servicemen, who served with the British forces and are still waiting for indefinite leave to remain. Will the Government address this issue with a sense of urgency because there is a feeling that we are not acting fairly?
My Lords, I join others who have already commended the fantastic work of our troops, diplomatic staff and civil servants in getting so many people out of Afghanistan under very difficult circumstances. However, it is almost 20 years to the day since the events that gave rise to the invasion of Afghanistan in the first place. How confident are the Government that they, along with allies, will be able to prevent Afghanistan once again becoming a training base for terrorists? What action do the Government envisage in the coming months and years to address that serious issue?
We assess that al-Qaeda is now less active in Afghanistan than it was before 2001 but, of course, we acknowledge completely that the group has not ceased to exist and remains a threat. Obviously, there are the terms of the US-Taliban agreement where the Taliban made commitments on preventing international terrorism within its territory, including its relationship with al-Qaeda. We will continue to hold them to those commitments and to the terms of that agreement. Of course, we will also continue to work with our international partners to ensure that we keep ourselves and our allies safe, and that Afghanistan does not once again become a breeding ground for terrorism, which threatens us all.
My Lords, sometimes very unexpected conversations occur. On my journey down from the north-east this morning, I found myself spending two hours talking with someone who had done seven tours of service in Afghanistan and nearly 10 years’ service in security. It is painful to talk to someone who is showing you on their phone the photos of them in the cargo plane coming out and hear his story.
My first question comes from that conversation and is around the safe routes out. He was clear that he had to leave behind several hundred Afghans who have all the paperwork but could not come out. His words were that to suggest to them that there are any safe routes out at the moment is simply untrue because every kilometre between Kabul and the border has stops where they and their paperwork are checked, so they will not travel that way. His comment was that there must be priority for getting air routes back in as quickly as possible as the only genuine future safe route. My question, formally, is: what are the Government doing to work with international partners to see safe commercial air routes reopen?
I was going to ask something for myself, because I am working with local authorities, with MHCLG and the Home Office on refugee resettlement, both in ARAP and the new scheme, for which we still await the details. Housing is the biggest issue in all those conversations. What are the Government doing to persuade local authorities that private landlords must be used, as well as social landlords? What is being done to ensure that adequate money is paid to local authorities so that they can support those refugees? Civil society is absolutely desperate to help and support, but the local authorities need to know that they will get the backing from the centre too.
I thank the right reverend Prelate. We are certainly working on his first point about air routes. We have been working particularly with, for instance, the Qataris and the US to think about ways we might facilitate that. I can certainly reassure him that we are talking to our international partners about that and, on borders, with Pakistan, Uzbekistan and others to try to see what we can do to create the safe passage we all want. As I have also said, the dialogues going on with the various organisations with the Taliban are reinforcing time and again that this is, first and foremost, something the international community wants to see.
On housing, I mentioned that we are already working with more than 100 councils to meet demand for housing and more than 2,000 places have already been confirmed. We have also made available £5 million of support to local councils to provide housing and are having further discussions.
On, I suppose, not lower-level but other engagement, on 27 August we launched a portal to allow members of the public to submit offers of support for people arriving from Afghanistan. Offers of housing support can currently be submitted through that and work is ongoing to expand it to offers such as job opportunities, professional skills, training and donations of specific items. We are working with our local authority partners and friends, but also with the great generosity of the British public, which we are all aware of. We are providing ways in which they can offer help and support as well, which I know will be extremely welcome.
My Lords, the noble Lord, Lord Browne, talked about open-source material looking at the situation in Afghanistan in the first half of this year. Closer to home, your Lordships’ International Relations and Defence Committee produced a report in January on the UK and Afghanistan in which we outlined considerable concerns. We impressed on the Government the need to talk to the incoming Biden Administration. What effort did the Foreign, Commonwealth and Development Office put into talking to the American Administration behind the scenes? The fact that the Government were preparing for Operation Pitting from January does not really send the right signals. Surely, we should have been trying to create a situation where we did not need an emergency evacuation. We should have left in a way that left stability, not chaos.
As I said, intelligence and information were obviously being assessed by the FCDO and the MoD throughout this and plans were being taken. It is a fact that the speed at which the Taliban moved took people by surprise; people, including the Taliban, have admitted that. We did this evacuation thanks to the bravery of our forces. We managed to evacuate more Afghans than any other country, apart from the US. Lessons will of course be learned and we will look at those, but we must also recognise that our forces and diplomats did a fantastic job in extremely difficult circumstances. We must be grateful to them.
Does my noble friend not agree that the Prime Minister has at his hand two possible levers: one is the requirement of the Taliban for diplomatic recognition and the other their requirement for international aid? Can we have her assurance that the Prime Minister, within the international community, will make as much use of these two levers as he can?
Yes, I can assure my noble friend that that is exactly what we will be doing. We will also want to be pragmatic and through organisations and some form of dialogue see whether we can talk to the Taliban and encourage them to do the things that we are talking about, such as providing safe passage. We have a number of levers at our disposal and will use all of them to try to make sure that we can achieve safe passage for those who want to leave Afghanistan and to make sure that many of the gains in civil society and within the country for women and girls and for minorities are not lost in the coming months.
My Lords, I thank the noble Baroness for engaging with the question that I asked earlier, but she did so without dealing with the germane point of the evidence: did the Government have the ability in any form to come to the conclusions reached by other people who were not in the intelligence community? Why did the fact that they were doing that not ring alarm bells with Ministers who had responsibility, with their officials and with the intelligence community?
The noble Baroness tells us anyway that the Government were planning. Dominic Raab told the Foreign Affairs Select Committee that, back in July, the Government were planning for the possibility of an evacuation of British citizens and those who were quite rightly entitled to think that we had a moral obligation to secure their lives. Will the Government share this planning? Did it include the explicit possibility that, unlike with any other evacuation I know of, those conducting it would remove the military before they had removed the civilians? If so, did we discuss this with the United States of America and with our NATO partners and say, “We have to face the possibility that history will look back on us as having removed the source of these people’s security before we could take them out of the place of danger”? Did we do that?
I am afraid that all I can do is once again reiterate the point that the specific evacuation plan for Afghanistan was revised in January 2021 and kept under review until it was enacted. Plans within it included options to support and evacuate our diplomatic team, British nationals and their families, the continuation of the evacuation of those eligible under the ARAP scheme and the withdrawing of remaining military personnel.
Afghanistan: FCDO Update
The following Statement was made in the House of Commons on Monday 6 September.
“With your permission, Mr Speaker, I will update the House on the UK’s international response to the situation in Afghanistan.
As my right hon. Friend the Prime Minister set out, over the last three weeks, through a shared effort right across Government and our armed forces, we have delivered the largest and most complex evacuation in living memory. Between 15 and 29 August, the UK evacuated over 15,000 people from Afghanistan. That includes more than 8,000 British nationals; close to 5,000 Afghans who loyally served the UK, along with their dependants; and about 500 special cases of particularly vulnerable Afghans, including Chevening scholars, journalists, human rights defenders, campaigners for women’s rights, judges and many others.
Of course, the work to get people out did not start on 15 August. The Foreign, Commonwealth and Development Office advised British nationals to leave the country in April and again on 6 August; we estimate that about 500 did so. At the same time, the Government launched the Afghan relocations and assistance policy scheme for interpreters and other Afghan staff, getting more than 1,900 out before the airlift began on 15 August. As the security situation deteriorated, we accelerated that process throughout July and early August. In total, since April, we have helped more than 17,000 people to leave.
I place on record my thanks, and I pay tribute to the herculean efforts of our troops, our diplomats and our civil servants, who have done an incredible job in the toughest of conditions. As we remember their efforts, we also remember those in the UK armed forces who made the ultimate sacrifice in Afghanistan trying to make that country a better place for the Afghan people.
Now that the evacuation has ended, we have moved into a new phase. We stand by our commitment to support those who have worked for us and to take all remaining eligible cases. Securing their safe passage out of the country is an immediate priority. We are working through our diplomatic channels to that end, and of course the Taliban have given assurances that they will provide safe passage for foreign nationals and those eligible Afghans who wish to leave. On 30 August, the UN Security Council passed resolution 2593, driven by the UK alongside the US and France, affirming the international community’s expectation and requirement that the Taliban should follow through on the assurances that they have given.
Last week, I visited Qatar and Pakistan. In Qatar, I met the Emir and the Deputy Prime Minister and Foreign Minister, Sheikh Mohammed, to discuss safe passage alongside the international community’s wider approach to dealing with the Taliban. We discussed ongoing efforts to re-establish flights at Kabul airport, where Qatari technical staff are working on the ground, and to see how we can co-operate in handling the organisation of future flights. I also announced our new non-resident chargé d’affaires for Afghanistan, Martin Longden, who is now working out of Doha.
In Pakistan, I met Prime Minister Khan and Foreign Minister Qureshi to discuss safe passage via third countries and the importance of holding the Taliban to their commitments. I also announced that we are sending £30 million in support to Afghanistan’s neighbours. This will provide life-saving support for refugees, including shelters, household necessities, sanitation and other hygiene facilities.
I dispatched last week a new rapid deployment team to the region, with an extra 22 staff in total. They will reinforce our embassy teams and high commission teams in neighbouring countries, processing British nationals or eligible Afghans who are seeking to leave via third countries. We want to do that as fast as we possibly can once they can leave, subject to the necessary security checks.
I also spoke to the Foreign Minister of Uzbekistan earlier today and the Foreign Minister of Tajikistan last week. Our Minister for South Asia and the Commonwealth, Lord Ahmad, visited Tajikistan last week and will return to the region shortly.
I turn to the wider international strategy. The international community is adjusting, and must adjust, to the new reality in Afghanistan and is recalibrating its approach. The UK is playing a leading role. My right hon. Friend the Prime Minister convened G7 leaders on 24 August to discuss a shared response to the situation. That followed a G7 Foreign Ministers meeting, and we are building a global coalition around four key priorities set out in a UK G7 paper that we have shared with those partners.
First, we must prevent Afghanistan from ever again becoming a safe haven or harbour for terrorists. Secondly, we must prevent a humanitarian disaster and support refugees, wherever possible, in the region. The UK has allocated £286 million in aid for Afghanistan this year. We are supporting Afghanistan’s neighbours, as I have set out, and the Home Secretary has set out our resettlement scheme, so we are leading by example, which enables us to encourage others to step up in what will inevitably have to be an international team effort.
Thirdly, we must preserve regional stability, which risks being shattered by the combination of renewed terrorist threat and an exodus of refugees. Fourthly, we must hold the Taliban and other factions to account for their conduct, including and in particular on human rights and on their treatment of women and girls. I am taking that forward through our bilateral partners; we have a G7+ meeting later this week, and the UK is also pressing for further discussions among the permanent members of the UN Security Council. We plan to host an event at the UN General Assembly later this month, as the Prime Minister indicated.
We will not recognise the Taliban, but we will engage, and we will carefully calibrate our actions to the choices that they make and the actions that they take. Given our strategic priorities—the ones that I have specified—we must also set some credible tests to hold the Taliban to the undertakings that they have made on safe passage, on terrorism, on humanitarian access, and on a more inclusive Government. We stand ready to use all the levers at our disposal—political, economic and diplomatic—in that effort. We continue to galvanise the international community and bring together the widest possible group of influential countries to deliver on those strategic priorities, and to exercise the maximum moderating influence on the Taliban that we possibly can. I commend this Statement to the House.”
My Lords, the events in Afghanistan have shown the absolute best of United Kingdom diplomatic staff and British forces. We can all take immense pride in what they have achieved, especially in their efforts as part of Operation Pitting, yet, as my noble friend highlighted earlier, the Government’s mismanagement has meant that many Brits and Afghans who have worked alongside us have been left behind.
Our focus now must be on two priorities: first and most immediately, helping and protecting the people who remain in Afghanistan and those who have been able to escape, and, secondly, protecting the gains of the past 20 years, particularly those relating to women and girls and education.
The first priority means helping those who are stranded in Afghanistan to leave via a viable and safe route and—as I mentioned earlier today—focusing support for those who are at most risk of persecution, such as women and LGBT people as well as the Hazara Shias. Can the Minister clarify exactly how many British nationals remain in Afghanistan? For the Afghan nationals who have made it to the United Kingdom, there must now be long-term support for those rebuilding their lives and engagement with local authorities to agree a long-term strategy. Details for the Afghan refugee resettlement programme have been incomplete and delayed, and the Government must urgently clarify how they will help fund the scheme and what the overarching strategy is.
The Minister will be aware that Members of both Houses have taken up the cases of Afghans and British nationals who have been desperate to leave. I know the Minister has personally intervened in many of these cases, but the response of both the Foreign Office and the Home Office has been slow, with many MPs’ emails remaining unanswered. The Prime Minister promised that all emails would be responded to by the close of play yesterday, so can the Minister explain why this deadline has now been missed, with hundreds—I repeat, hundreds—of emails still not being replied to?
As we heard earlier in the debate on the previous Statement, there is a very real prospect of a humanitarian crisis in a country of almost 40 million people, and the consequences could be catastrophic. The country is already experiencing its second drought in three years. One in three Afghans is now facing severe hunger, and almost half of children under five are in need of life-saving nutritional support over the next 12 months—something I have constantly raised in this House, particularly as a consequence of the terrible cuts to development support.
The Government must use multilateral institutions in conjunction with aid agencies to monitor the situation and deliver aid directly to those in need. Steps must also be taken to keep land routes open for the safe delivery of food, medicine, water and other supplies, and preparations need to be made for the people being displaced. UN agencies such as the World Food Programme are planning for this possibility, with responses being explored in Pakistan, Tajikistan and Iran. The Foreign Secretary said he had spoken to Jean Arnault, the special representative on Afghanistan, acknowledging that the relationship with the United Nations will be one of the critical factors we consider in shaping the resettlement scheme. What other discussions have taken place to plan support for these UN agencies?
The second priority must be to protect the gains of the last 20 years, and the only way we can do this is with a clear diplomatic road map for the way ahead. We must use every lever we have to prevent Afghanistan becoming, once again, a safe haven for international terrorism. The United Nations Security Council Resolution 2593 is a welcome first step in affirming the international community’s expectation and requirement that the Taliban should follow through on the assurances they have given. The Foreign Secretary said that the UK is pressing for further discussions with the UN Security Council P5. Will these discussions also explore the means to hold the Taliban to their word?
Regional partners will also be central to preventing security threats arising from Afghanistan, and I am pleased that the Government have been engaging with Pakistan. Yesterday the Foreign Secretary claimed to have engaged with all relevant partners. Can the Minister confirm which states the Foreign Secretary was referring to? Can he set out the steps which were agreed during the Foreign Secretary’s meeting with Pakistan’s Foreign Minister on combating terrorism?
Given the importance of protecting human rights when exerting pressure on the Taliban regime, can the Minister detail the steps we are taking multilaterally, including at the UN Human Rights Council? The Leader of the House and the Foreign Secretary said that the UK plans to host an event at the UN General Assembly later this month. Can the Minister tell us what the objectives of this meeting are? The noble Baroness failed to give us an answer on that; I hope the Minister can set out a better context for it. I believe it is the right thing to do, but we must have very clear objectives.
The Taliban takeover of Afghanistan poses a threat to us all, not only from its past relationship with international terrorism but from the conditions it is now creating in the region. It is in everyone’s interest that the United Kingdom step up and support the people of Afghanistan.