The Armed Forces Bill provides the system of command, discipline and justice for the Armed Forces. It covers the renewal of the powers of courts martial and, where there are failings in the courts martial system, now is the time to highlight those failings and to endeavour to remedy them. My first point is that there has been considerable criticism of the fact that, in a court martial, a simple majority can convict a defendant. My noble friend Lord Thomas of Gresford, who has considerable experience in these matters, has been a long-standing critic of this iniquitous rule. The Judge Advocate-General himself has been critical.

In the case to which I referred on 15 September, involving Sergeant Al Blackman of 42 Commando Royal Marines, five panel members found the defendant guilty, while two found him not guilty. That ratio would not have been sufficient to convict in a civilian criminal court. It is outrageous that members of our Armed Forces serving in the most dangerous and demanding conditions—serving our country—should be treated less favourably than their civilian counterparts. One of the principal aims of the military covenant was to ensure that this did not happen and that members of our Armed Forces were not disadvantaged. A simple majority goes against the rules of natural justice, and amendments should be brought forward in Committee by the Government to bring the conviction ratio in line at the very least with the standard in civilian criminal cases.

My second point concerns the choice of individuals to serve on the panel. In civilian cases, the defendant can challenge members of the jury who, for one reason or another, are likely to be prejudicial. The ethos of a court martial is that you are supposed to be tried by your peers. In the case to which I have referred involving Sergeant Blackman, all of the panel, not just some of them, should have been drawn from individuals who had served through the horrors of the front line in Afghanistan or in similar combat conditions, who would have understood the effects that constant mortal danger, exhaustion and stress can have even on the strongest and best-trained individual—especially if that person had, over recent years, done six six-month tours on combat operations and witnessed the level of barbarism and brutality inflicted on his comrades by our enemies. As in civilian criminal cases, the court martial rules should be amended to allow a defendant the right to challenge individual panel members to ensure that he is truly tried by his peers.

Finally, like many others in this debate today, I should like to highlight the impact that human rights legislation is having on our Armed Forces. There are currently well over 1,000 public law claims filed against the Ministry of Defence in connection with British military action in Iraq. In addition, there are thousands

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of private law claims. These claims often relate to operations in which British Armed Forces were engaged decades ago. Our troops must at all times comply with the Geneva conventions, but we must ensure that we do not paralyse our Armed Forces with legal red tape and doubt. This leads to death and defeat.

In an excellent article in the Times on 30 March last year, Mr Tom Tugendhat, who has recently left the Armed Forces and who has considerable recent operational experience—I should add that he is now a Member of the other place representing Tonbridge and Malling—wrote:

“By applying human rights laws designed for the stable conditions of peaceful, postwar Europe to our forces operating in extremely violent and fast-moving combat situations, judges are damaging the fighting capability of the most accomplished military force in Europe. Victories abroad are being undermined by defeat after defeat before the benches of London and Strasbourg. … The Geneva Conventions allowed our troops to detain combatants or civilians if necessary — but our judges, and Strasbourg, couldn’t see the difference between Helmand and Henley”.

Those who drafted the European Convention on Human Rights did not intend the convention to apply outside the signatory states, and the Geneva conventions should take precedence in law.

There is power to derogate from the convention. I believe that the French Government contracted out of the convention in respect of their Armed Forces. I hope that the noble Earl will explain what steps the Government are taking to do the same.

2.22 pm

Lord Brown of Eaton-under-Heywood (CB): My Lords, I want to touch today on two matters: first, briefly, Clause 14, a provision which I particularly applaud, while adding, “High time”. I recognise that in practical terms it changes nothing; it merely tidies up the position with regard to homosexuals as it has stood for the past 16 years. It finally crystallises in legislation the change of policy which was forced on the Government by the decision of the European Court of Human Rights in 1999 in Smith and Grady v the United Kingdom: that no longer are members of the Armed Forces engaged in homosexual activity to be administratively discharged from the Armed Forces.

For me, this has involved something of a nostalgic wander down memory lane. In 1995, I presided, at first instance, in the Divisional Court in the case of Smith, widely known as the “gays in the military” case. Of course, that was before the Human Rights Act and before, therefore, the United Kingdom was entitled to have regard to our convention obligations. Reluctantly, therefore, I was bound to reject the complainant’s case, compellingly though it had been argued by Mr David Pannick, Queen’s Counsel, as he then was. So, too, on appeal, presided over by the late and much missed Lord Bingham of Cornhill, the Court of Appeal similarly had to dismiss the claim.

I hope that it is not unforgivably vain to note in passing the opening line of my judgment:

“Lawrence of Arabia would not be welcome in today’s Armed Forces”,

and to record my statement in the judgment that:

“I for my part strongly suspect that so far as this country's international obligations are concerned, the days of this policy are numbered”—

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and so it proved to be. Strasbourg’s judgment, correcting what had plainly been the United Kingdom’s stupidly mistaken earlier approach, should not be forgotten by those who seek any wholesale rejection of the convention.

The other matter that I want to touch on today arises not from what appears in the Bill but rather, as many others have noted, what is strikingly absent: anything directed towards solving the real problems resulting from the application of the convention to the operations of our armed services abroad. In this part of my speech—not, I hope, inconsistently—I shall perhaps be a little less respectful towards some of Strasbourg’s jurisprudence.

There are a number of aspects of the problems arising from the convention as applied to our forces abroad, and I cannot pretend that, to some extent at least, they have not been compounded by what many think to be the unfortunate decision of the majority of the Supreme Court in 2013, in another case called Smith, in which, as has already been made plain, by a majority of four to three, the court refused to strike out claims by our service personnel in Iraq under both Article 2 of the convention and in common law negligence. The noble Lord, Lord West, and the noble and gallant Lords, Lord Craig and Lord Boyce, have already touched on that. The actual legal effect of the majority decision in that case has perhaps been a little misunderstood and exaggerated, but certainly the minority would have struck out those claims as unsustainable and objectionable in principle whatever their detailed facts. I have said before that, personally, I rather incline to that view myself.

I accept, too, that that decision and two other particular decisions of the Grand Chamber in Strasbourg, those in Al-Skeini and Al-Jeddah, in each of which the European Court reached a diametrically opposite conclusion from that earlier reached by us in the Appeal Committee of this House—I should perhaps declare that I was party to each of those—have all tended rather to undermine our military capability and to lead to our Armed Forces becoming hypercautious and risk-averse. The particular consequence of the Al-Jeddah decision in Strasbourg is that they have become unable to detain suspect foreign fighters whom we capture, however dangerous we judge them to be if left at large.

Those are the problems, and there is, alas, no single solution available to solve all of them. As for claims by foreign combatants and civilians, both personal injury claims and death claims, as well as—there are very many of these, too—claims for wrongful detention, the best solution now seems to me to be that in any future conflicts such as those in the past in Iraq and Afghanistan we should exercise our Article 15 power of derogation from the convention, leaving those operations abroad to be judged in accordance with international humanitarian law—that is, the Geneva Conventions—rather than the inappropriately restrictive constraints of the human rights convention which, as others have said, is designed essentially for peacetime conditions. Derogation makes it sound awfully simple. In fact, it is not—but now is not the time to explore all the difficulties.

As for claims against the Crown for death or injury suffered by our own Armed Forces, which is the particular

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problem confronting the Supreme Court in the Smith case, the solution has to be very different. Derogation simply does not have any application. In so far as such claims are brought in negligence in tort, I think that the only sensible way ahead is for a ministerial order now to be made under Section 2(2) of Crown Proceedings (Armed Forces) Act 1987—in effect reviving, in the case of,

“warlike operations … outside the United Kingdom”,

the effect of Section 10 of the Crown Proceedings Act 1947, which had prevented claims for injury or death on military service, notwithstanding that the 1947 Act generally opened the way to tort actions against the Crown. Section 10 was repealed in 1987 really because personal injury damages by then had risen way beyond the level of benefits payable to those injured or killed in service. Although under the current Armed Forces pension scheme, which was revised in 2011 following the review by the noble and gallant Lord, Lord Boyce, the benefits now payable are improved, they still fall well short of tort compensation.

The noble Lord, Lord West, has already mentioned the excellent Policy Exchange publication, The Fog of Law—and Tom Tugendhat, just mentioned by the noble Lord, Lord Burnett, is one of the three authors of that publication. Later there was an equally powerful publication called Clearing the Fog of Law, which recognises—in my view, rightly—that as a matter of political reality, not to say fairness, it would be necessary as a condition of ending the right to sue for combat injuries, to award instead, in all such cases, without the need to prove fault, compensation representing the difference between the AFPS benefits and what would be awarded by way of tort damages. Obviously, this would result in more and larger payments than at present, but it would avoid all the problems of legal proceedings in the way of stress, delay and expense. Of course, it would also at a stroke eliminate the problem, presented by Smith—namely, that the risk of litigation itself causes a dangerously defensive approach to soldiering.

As to the other aspect of Smith, the possibility of claims under Article 2 of the convention, to reverse this it would be necessary to legislate, unless perhaps, as the noble Lord, Lord Campbell, tentatively suggested, a differently constituted Supreme Court could now be persuaded to depart from the majority view in Smith, which I believe could be done without any offence to our convention obligations. But if legislation is necessary, for want of any further such decision of the courts, it would have to prevent such claims for death or injury on active service. However, I repeat that I personally believe that such limited legislation would be consistent with our convention obligations and, indeed, even if challenged in Strasbourg, would be so found by the Strasbourg court.

As for the concerns expressed by the noble and gallant Lord, Lord Craig, about the ongoing inquiries into historic allegations of criminality on the part of our forces overseas, these are concerns that I share—and I would be entirely happy to engage with him or others in discussing the possibility of introducing some provision on time limitations or some other possible way of addressing those concerns.

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Whether all the various problems raised around the House today should be addressed in this Bill or in another, I leave to others. Assuredly, however, they should not be left unaddressed for much longer.

2.35 pm

Lord Freeman (Con): My Lords, I add my congratulations to the three maiden speakers today. They were exemplary. I have some past experience; in the other place one of my tasks for the Conservative Government was to brief those who were making maiden speeches—to a slightly larger House, perhaps, and perhaps suffering greater nerves than those who made the three very professional speeches today. I address my two Conservative colleagues, who are most welcome, and I congratulate them on their most excellent speeches.

I want to make two brief observations and then ask a question of the Minister. My first observation is that the way in which your Lordships consider the legitimacy of Armed Forces operations is rather rigid, in the sense that we are now looking at provisions that were effectively put in place in 2006. After five years there was a review, but it was relatively perfunctory, and we are now looking forward to 2021. That seems to be slightly inflexible. There may be opportunities: for example, Orders in Council could be in due course tabled in your Lordships’ House as a Motion, so there could be some discussion. Compared with the operations in the private sector and the business sector—issues affecting business are debated regularly in your Lordships’ House—it seems to be a rather inflexible procedure. That is simply an observation.

My second observation concerns the liability of reserve forces for prosecution by Armed Forces authorities. I speak as the past president of the Reserve Forces Association. I thank the Minister for his briefing on the subject. A number of your Lordships met the Minister for a briefing on this Bill. The answers that the Minister very kindly gave at that briefing were, to my mind, very satisfactory, but there is some doubt, and I shall continue to monitor it. When Reserve Forces are off duty—they may be travelling to their depot, for example—there may be a period of time when they are not actually serving as Reserve Forces and their liability under military law is sometimes in doubt. But I thank the Minister for the briefing and do not intend to press him.

My question refers to the protection of our Armed Forces abroad, under the judicial proceedings that might occur in the country in which they have been operating. There has been some progress, and the Minister kindly brought your Lordships up to date on the subject. But I wonder whether he could bring us finally up to date as to the legitimate protection afforded to British forces who find themselves persecuted or possibly charged by overseas legal authorities for actions committed in the course of conflict. I am clear that the proceedings should be under UK or British auspices and back in this country.

2.38 pm

Lord Young of Norwood Green (Lab): My Lords, I thank the Minister for his comprehensive introduction and declare an interest as an ex-member of the Armed

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Forces’ Pay Review Body between 2004 and 2008. It gave me an interesting set of life experiences, including a trip to Iraq and Afghanistan and right out to the front line, including a bit of light shelling at Basra air base, which is not to be forgotten. So I am well aware of the threats, risks and dangers that our Armed Forces face. The scenarios that they operate in vary, as the challenges vary; more recently, the Ebola experience was another example of them rising to the occasion.

I take this opportunity to congratulate the maiden speakers. Unfortunately I heard only the noble Baroness, Lady Pidding. I did not hear my noble friend. I apologise for that. I had other business that I was trying to deal with at the same time. But I am sure that they will make an important contribution to the House.

I have a couple of questions for the Minister. One has been comprehensively covered. Finer legal minds than mine have been at work on the issue. The legal actions that are taking place against past and present members of the Armed Forces are—I hesitate to use the word—obscene. The entry of the no-win no-fee brigade has created an unfortunate climate. This is not the first area where we have seen this happen. It has happened in a range of other areas, including PPI and whiplash claims. It will not be an easy problem to solve, as we have heard during today’s debate, but the Bill gives us an opportunity to examine the legal challenges that face our Armed Forces and to ensure that there is fairness and that we can deal with situations where things manifestly go wrong.

I was interested in my noble friend Lady Taylor’s contribution about the role of women and instances of sexual harassment. That is an important area. More evidence has recently emerged about the unfortunate incidents at Deepcut. My noble friend mentioned culture. Changing the culture of an organisation is the hardest challenge of all. It manifestly is changing, but whether it has changed enough is the question. What can we do to ensure that the current ethos in the Armed Forces reflects current standards of behaviour? Embedding that in the way that officers and troops behave and ensuring that the training reflects them is important.

I also welcome the clause dealing with homosexuality. It made me think about one other area on which I would welcome a comment from the Minister. Are the Armed Forces equipped to deal with the complexity of transgender situations, which are emerging more and more? It is not an easy issue, but it is one that will have to be addressed.

My noble friend Lord Judd made an interesting point about the recruitment of young people at the age of 16. One of the benefits of being on the Armed Forces’ Pay Review Board is that you are taken around to meet the troops and are able to speak to them without officers present. Young people going into the Armed Forces at that age often find that it brings a structure and purpose into their lives that they have never experienced before. It makes a profound improvement. If that were all that it did, it would not be enough. Of course they have to be properly trained. The Armed Forces have excellent apprenticeship schemes. They need to ensure that they are part of that so that when they leave, instead of it being a negative, it would be a positive; we would be sending young people back

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into society much improved. The only other safeguard is that young people making a decision at that age need to have the right to change their mind. I feel it is necessary to make that contribution because I have met so many young people whose lives have been improved, and I wanted to end on a positive note. This has been a really interesting and fascinating debate with some profoundly important contributions. I look forward with interest to the Minister’s reply.

2.45 pm

Lord Bilimoria (CB): My Lords, the Minister started this debate by saying that the Armed Forces Bill would renew the Armed Forces Act 2006, which provides the legal basis for the existence of the Armed Forces as disciplined bodies. I have just returned from addressing the 71st course at the Defence Services Staff College in Wellington in the Nilgiri hills in south India. I have known the institution since my childhood. When I was a little boy, my father was a major attending the course. When I was at boarding school in neighbouring Ooty, my uncle, Lieutenant-General Sethna, was commandant. Later, in the 1980s when I was at Cambridge, my father, Lieutenant-General Faridoon Bilimoria, was commandant. I returned there eight years ago to address the 63rd course in 2008. When I was there this week, I was taken by the immaculate condition of the staff college. It was the best I have ever seen it, under the leadership of its current commandant, the Guards officer Lieutenant-General SK Gadeock. He reminded me of the motto of the staff college—“To war with wisdom”—and the mascot of the staff college, its emblem, the owl. Of course, the owl stands for wisdom.

Are we being wise as a country when it comes to the law and the Armed Forces? The noble and learned Lord, Lord Brown, spoke of the fog of war, and we have been speaking about The Fog of Law. Penny Mordaunt, the Armed Forces Minister, has spoken openly about the spurious cases being brought by parasitical lawyers whose behaviour is the,

“enemy of justice and humanity”.—[

Official Report

, Commons, 27/1/16; col. 203WH.]

We have heard of “lawfare”. Legal firms have brought more than 1,500 allegations of abuse and killings against British troops in Iraq. Ms Mordaunt said that that they are bringing morally unjustifiable cases on an industrial scale. For instance, Public Interest Lawyers, founded by Phil Shiner, has brought a case against British troops even though it was accepted 11 years earlier that Danish troops were responsible and Danish forces had already accepted responsibility and paid compensation in 2003. Ms Mordaunt said that we will take action against any legal firms we find to have abused the system and made spurious and fabricated claims. Will the Minister say why this issue is not being addressed in the Bill? IHAT has a huge backlog. It spent £57 million to find evidence of wrongdoing in only one case. A team of more than 145 detectives and staff will not complete its work until 2019. We hear that further allegations may be brought against troops who have served in Afghanistan. According to Johnny Mercer, the situation is out of hand. No other country has legislation put to the Armed Forces in the way we are experiencing here.

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The Prime Minister wants to stamp out spurious legal claims against British troops returning from war and this awful no-win no-fee culture. The Defence Secretary has spoken of ambulance-chasing British law firms and said that there is a case for suspending European human rights laws when sending forces into action. Does the Minister agree? The Prime Minister has said that the National Security Council has been ordered to produce a comprehensive plan to stamp out this industry. Will the Minister update us on this? This is stopping the Armed Forces doing their job. How long will it take to finalise the proposed new British Bill of Rights which it is hoped will replace the Human Rights Act and make Britain’s Supreme Court more powerful than the European court? In the mean time, as the noble Lord, Lord Burnett, said, does the Minister agree that we can derogate from the ECHR, as we did after 9/11, to protect ourselves from being sued if we are going to a theatre of operations where we think compensation could be applied? After all, France has opted out of certain elements of the ECHR in order to protect its military from the threat of litigation. Portugal, the Czech Republic and Spain have all derogated in the way that France has. Why can we not? Why should we not?

The noble and gallant Lord, Lord Boyce, spoke about fighting effectiveness and about lawfare. Surely the ECHR was designed for civilian situations to protect the public from the misuse of state powers. Instead it is being used to bring legal claims against the military during times of war. The Geneva protocols should apply in conflicts of war. Does the Minister not agree?

The Policy Exchange, talking about its report The Fog of Law, says that,

“human rights laws mean British troops operating in the heat of battle are now being held to the same standard as police officers patrolling the streets”,

of London on a Saturday evening. This is completely out of proportion. In fact, Article 15 of the ECHR allows countries to derogate in times of war or other public emergency threatening the life of the nation.

My father commanded his battalion of the 2/5th Gurkhas in the liberation of Bangladesh in 1971. When they were about to take over a town, the brigade commander phoned my father and said, “I want that town taken by breakfast tomorrow morning”. My father said, “No, sir, I will not obey your order. I will give you that town by lunch. If I take it by breakfast I will lose too many of my men”. He did indeed take the town by lunch. Sadly, he still lost lots of his men. However, he made that decision in war.

I come to the question of adequate equipment. Since we are talking about the Gurkhas, whose 200th anniversary we celebrated last year, I say that my father’s battalion won three Victoria Crosses in the Second World War. I am on, and for six years was proud to chair, the committee for the Memorial Gates on Constitution Hill. In the ceiling of the pavilion there are the names of the Gurkha Victoria Cross winners. How many of them had adequate equipment? Their adequate equipment entailed a kukri with which they would single-handedly combat troops with a cry of “Ayo Gorkhali”—“Here come the Gurkhas”. Field-Marshal Manekshaw, another former commandant of

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the Defence Services Staff College in Wellington, famously associated with the Gurkhas, said that if a man says he is not afraid of dying, either he is lying or he is a Gurkha. This sort of bravery has no place for human rights lawyers.

Under the Geneva convention, lethal force is allowed as a matter of first resort against the enemy. Under the ECHR, lethal force should be used only as a last resort and only in exceptional circumstances. That is wholly inappropriate. The Minister said that the Bill is modest, and I am afraid I have to agree with him. It does not address a major issue. Last year was the 200th anniversary of the Battle of Waterloo. What was the motto of the Duke of Wellington, one of the most famous heroes in this country? “Fortune favours the brave.”

In my talk to the Defence Services Staff College, which trains officers for armies, navies and air forces from all over the world, I spoke about the article 10 Things Entrepreneurs and Military Pilots Have in Common, written by Ron Yekutiel. Two of those 10 things were “Be bold” and “Just get the job done”. How can you just get the job done when you have the ECHR breathing down your neck and human rights lawyers ambulance-chasing you? This year at Harvard Business School, which I have attended for 14 years, we talked about the difference between playing to lose and playing to win. I believe that the British Army is famous for playing to win.

The SDSR 2015 was very positive, after the very negative one in 2010. Defence spending will rise by 5% by 2020-21. We will restore our lost capability after a decade of no carriers and no maritime patrols. We have one of the five highest levels of defence expenditure in the world. We are one of less than a handful of countries that now adhere to our 2% of GDP spending NATO commitment.

We are not a superpower; there is only one superpower on this planet and that is the United States of America. However, we are not a regional power or local power. We are at the top table of the world in every sense—the UN Security Council, the G7, the G8, the G20, NATO and the European Union. We are a global power.

The House of Commons Defence Committee produced a report, Flexible Response? An SDSR Checklist of Potential Threats and Vulnerabilities. It identified the following threats:

“Cyber-attack and espionage … Growing instability in the Middle East and North Africa … Increases in extremism, radicalisation and other enablers of terrorist activity … Non-state actors and hybrid warfare undermining the international rules-based order … Potential for conflict in the South and East China Seas … Potential for Russian aggression in Europe and the High North and possible dilution of the commitment to Article 5 … Economic dependence on unreliable partners … Inability to react to sub-conventional threats … Inadequate training opportunities for UK Armed Forces … Lack of numbers in UK Armed Forces and gaps in capabilities”.

On that note, when I was in India this time with the Indian Army it reminded me of when my father commanded the largest corps in the Indian Army. That corps has a strength of 100,000. The army that he commanded was 350,000 strong. Our troops now number 80,000. Lastly, the committee identifies:

“Lack of expertise in Whitehall”.

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The report concludes:

“The SDSR must demonstrate adequate awareness of them all, and configure the Armed Forces to provide the flexibility, versatility and ability to expand which are essential for the defence and security of the United Kingdom”.

This is about the services. The motto of Sandhurst, where my grandfather was commissioned, is, “Serve to lead”. The motto of the Indian military academy where my father was commissioned, if I may paraphrase it, is, “The honour, safety and welfare of your country come first, always and every time. The safety and welfare of the troops that you command come second, always and every time. Your own safety and welfare come last, always and every time”.

We have had three varied and excellent maiden speeches today. The noble Lord, Lord Shinkwin, spoke movingly of the Armed Forces covenant. We now have an annual report prepared on the covenant. Let us remind ourselves of what this is all about. The Armed Forces covenant is an enduring covenant between the people of the United Kingdom, Her Majesty’s Government and all those who have served the Armed Forces of the Crown and their families.

The first duty of government is the defence of the realm. Our Armed Forces fulfil that responsibility on behalf of the Government, sacrificing some civilian freedoms, facing danger and sometimes suffering serious injury or death as a result of their duty. In return, the whole nation has a moral obligation to the members of the naval service, the Army and the Royal Air Force. Together with their families, they deserve our respect, support and fair treatment. Recognising those who perform military duties unites the country and demonstrates the value of their contribution. This has no greater expression than in upholding this covenant. The covenant is at the heart of everything. We have to address the major lack in the Bill. I hope that we do.

2.58 pm

Earl Attlee (Con): My Lords, I am grateful to my noble friend the Minister for his explanation of the Bill and to our most excellent maiden speakers.

I believe that the constitutional arrangements whereby we expend the service discipline Act annually by order and five-yearly by Act of Parliament is the right arrangement. I remind the House that I have an interest as I am technically still a commissioned officer in the Reserves, but not for long, since I will have to hang my boots up on my 60th birthday. I have exercised summary jurisdiction under the Army Act 1955 and in my very early days I was on the receiving end of it, although in retrospect I realise that it was probably much more to do with accounting for a lost camp-bed than for anything I might have done wrong. In answer to my noble friend Lord Lyell, I was using the Army Act 1955 in 1998 and it was still being used until the 2006 Act came into force.

I do not have any problems with the provisions of the Bill, but I regard it as an opportunity to raise a number of G1, or rather J1, issues, and not just service discipline arrangements. The difficulty with defence legislation is that the needs of the majority in the Armed Forces have to be balanced with the rights of

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the individual. I agree with all that the noble Lord, Lord West, and other noble Lords have said about the Human Rights Act.

The noble Lord, Lord Judd, raised the issue of the age of recruitment. Perhaps the Minister could not just put the correspondence in the Library but share it with all of us who have taken part in the debate, as that would be very helpful.

The noble Baroness, Lady Taylor of Bolton, talked about the statistics regarding “inappropriate behaviour”, if I may put it that way. I would be interested to see how those same questions and statistics compare with the experience in industry. It may be better or worse, but it would be useful to know what the difference is.

I will touch on “pay as you dine”. A few years ago, junior service people were charged for their food, whether they took it or not. This caused some resentment, and prior to the 1997 Parliament new arrangements were studied and were later put into place. In Committee, I will table some purely probing amendments to explore how the system is currently working.

I was very surprised that no noble Lords raised the issue of women in the front line. We already have women serving courageously in the front line and in harm’s way. They will engage the enemy as vigorously as their male colleagues. The issue is whether they should take on a role which is primarily to close with the enemy and kill him. Women are currently precluded from serving in the infantry or the Royal Armoured Corps operating armoured fighting vehicles. It is possible that, in respect of armoured fighting vehicles, women have advantages that outweigh the disadvantages. However, as regards the infantry, “closing with the enemy and killing him” is a brutal, bloody business. Physical strength is all important. Since the average male is far stronger than almost all females, it follows that allowing women to serve in the infantry will reduce the combat effectiveness of the British Army and therefore I would strongly oppose it. There is of course an acid test for this issue. In the event of general war and conscription, would noble Lords be prepared to conscript women to serve in the front line? I very much doubt it.

We have talked a lot about the Government’s policy for the reserves, and while I have my misgivings I have a helpful suggestion; I will read very carefully what my noble friend Lord Freeman said. I believe that we should blur the distinction between regular and reserve service. This may be particularly relevant to cyber-reservists. Perhaps we should think of reserve service much more as being in Her Majesty’s Armed Forces but on a zero-hours contract. Rather than have me blunder around in the dark, it would be helpful if the Minister could arrange for me to be properly briefed on the current legal situation as soon as possible.

We have heard much about the military covenant, one of the principles of which is that no one who serves should be disadvantaged by that service. Over the last year or so, we have seen a retired officer of stratospheric seniority, who will have held the highest security classification, and who is also a Member of your Lordships’ House, having his public reputation traduced by a police investigation called Operation Midland. The public were told that the evidence was

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“credible and true”. As we know, parts of the operation were carried out in the full glare of publicity and not discreetly and sensitively. Of course, no one—but no one—is above the law and we need to give the police operational independence. However, I know that many noble Lords are deeply unhappy about this matter, which is fast moving, with developments even today. My main effort will have to wait for the next police and crime Bill, but I will table several amendments to address some of these concerns where they are relevant to the Armed Forces Bill. These might not necessarily be probing amendments, especially on Report.

I turn to the Blackman case. Several years ago, I told the House that service personnel deploying on operations have a secret dread fear, which is misconduct on operations. It is a sad fact that, if we are engaged in operations, sooner or later something will go wrong such as in this case. The House will recognise that the reason why we have a system of military discipline is so that our members of our Armed Forces, who are lawful combatants, will engage the enemy when required and, most importantly, they will adhere to the law of armed conflict and treat captured and injured enemies as they would want to be treated themselves. The fact that the enemy might not reciprocate is immaterial. We will not descend to the enemy’s level.

For years and years, during my annual training on the law of armed conflict I watched a video which covered some of the crucial points. I expect that the noble Lord, Lord Burnett, has watched the very same video. Among the points were the duty to protect vulnerable non-combatants and cultural items and, most importantly, that wounded enemy get medical treatment according to clinical priorities and not according to whose side they are on. The video also made it clear that you cannot kill the enemy once he is wounded and no longer able to fight. There was absolutely no doubt on these points and the current training is even more detailed and carefully delivered.

The noble Lord, Lord Burnett, knows very well that I hold both him and the Royal Marines in the very highest regard. However, I have to part company with him on this issue. I am very sorry for Blackman and his family. When he comes out of prison I would support him in seeking good employment.

Lord Burnett: I am grateful to the noble Earl for giving way. The thrust of Sergeant Blackman’s case is that he shot a man he thought was dead; we should all be careful about what we say about the case, because the papers are now with the Criminal Cases Review Commission, and we await what their judgment will be on the facts.

Earl Attlee: I am grateful for that. I was going to say that he is a good man but he has fouled up, and has been convicted in the courts of a serious military offence and has to be disciplined, however unpleasant that is for everyone.

The noble Lord called into question the court martial system and in particular the experience of the officers on the board. Those comments were rather adventurous. I have served on two or three court martials but only for much less serious matters, and certainly not involving the noble Lord, Lord Thomas of Gresford. I can

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assure the House that, in my experience, the mindset of the board is to acquit if at all possible. Your Lordships will recall that the court martial acquitted Marines B and C, and I am bound to say that I would have been surprised if a civilian court had done so.

The noble Lord implied that the officers on the board would have difficulty in understanding the operational conditions at the time of the incident. That is not a fair criticism but, in any case, how much more difficult would it be for a jury in the Old Bailey?, The reality is that of course Crown Court juries are forever deciding cases where they have no experience of the relevant environments, such as drug dealing, gang culture and organised crime.

In the past, I have intervened in support of service personnel who have been prosecuted when I believed that something had gone wrong. The Trooper Williams case comes to mind. I am very sorry, but nothing has gone wrong with the system and my counsel to the Minister is to do nothing. I am sorry to disappoint the noble Lord, Lord Burnett, who, as I have said, I have high regard for. Fortunately, there is much common ground between us. I look forward to Committee.

3.09 pm

Lord Walker of Gestingthorpe (CB): My Lords, I ask the House’s indulgence to say a few words in the gap. As one who has spent all my working life in the law except for two years’ military service in Germany with the Royal Artillery, I share the concern and disgust expressed in many corners of the House at the sort of ambulance-chasing activities which have been referred to—the “lawfare” trouble that affects us all. But as one of the four in the majority in the Supreme Court in the Smith case, which has been mentioned a number of times, I feel bound to say a word or two. It would be quite wrong for me to attempt to debate the whole case at length and at this point in the debate, but I ask the House to bear in mind three quite simple points about the majority decision of the Supreme Court.

First, it was not a claim that sought to establish either criminal or civil liability against any individual, officer or soldier, or group of officers or soldiers; it was, as I shall explain, basically a case about a failure of procurement of equipment. Secondly, the Supreme Court did nothing to say that the claim was likely to succeed or to encourage it; it simply refused to strike out the case as completely hopeless. Thirdly and most importantly, the reason that it was not a case that alleged a breach of a duty of care by any particular officer or soldier or collection of officers or soldiers was that it was basically about two particular failures of procurement of equipment.

One of the claims was based on an attack by a Challenger tank attached to an infantry unit at Basra against another Challenger tank some way away attached to a different infantry unit. The case was that the problem of a tank attacking a friendly tank could have been avoided by equipment which is referred to as, I think, friend or foe equipment and which, we were told, is fitted to American and French tanks but has never been fitted to tanks in the British Army. If it had been, it would have ensured that that incident did not happen.

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The other claim was based on the failure over many years to produce a light armoured personnel carrier—it is the sort of thing that seems to happen all the time between the MoD and the suppliers; there is a constant wish to improve the specification and the design but it never gets done—which resulted in the use by the Army in Iraq of Land Rovers, which are very difficult to protect against various forms of attack.

That is what the case was about. The majority may have been right or may have been wrong. I agree that 4-3 is a very unsatisfactory way of deciding such an important case, and it may well be that the Supreme Court will revisit it. Who knows? But it is a very difficult area. The claim was basically that there had been a failure of a duty of care on the part of the MoD in London, not the Army in Iraq. It is a very much more complicated subject, as my noble and learned friend Lord Brown of Eaton-under-Heywood indicated. I very much doubt whether it is right to attempt to deal with it in this Bill rather than elsewhere, but certainly it is a very difficult subject which needs careful thought. If that case is to be examined minutely, I ask noble Lords to read the long and anxious judgments and not to accept a tendentious account from those sections of the popular press that are determined to do down the Human Rights Act.

3.14 pm

Baroness Jolly (LD): My Lords, this has indeed been a fascinating debate. The range of experience and expertise on all sides of the House is quite impressive. I rather suspect that more unites us than divides us with regard to this Bill. My noble friend Lady Smith of Newnham is not in her place this afternoon; she is at the funeral of Lord Roper, who certainly would have taken part in the debates on several of these Bills in times past.

I thank the Minister for arranging the briefing with officials. It was most useful and informative. Clearly, I must congratulate noble Lords on their really impressive maiden speeches. We look forward to them contributing fully to the business of the House in the future.

I wish to put on the record a tribute from these Benches to the men and women who serve in our Armed Forces. I have had the privilege of seeing the Royal Navy at work over the last six months or so as part of the Armed Forces Parliamentary Scheme. On Sunday I head off to Norway to join the Royal Marines in their annual Arctic exercise.

In many ways the Bill is as important as the SDSR to the men and women who serve in our Armed Forces. It affects their daily life, their work and, indeed, their retirement. I think that we could revisit on another occasion the debate that we have had today on the Geneva Convention and the European Convention on Human Rights. I was really delighted to hear the noble and learned Lord, Lord Walker of Gestingthorpe, with his expertise, suggesting that this Bill is not the right vehicle for settling these issues. That was my view but he has underlined it, and I am very pleased about that.

I state at the outset that I think that the measures in the Bill are sensible and timely, and we are happy to support them. My noble friend Lord Thomas of Gresford

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covered issues relating to Clauses 3 to 12, and I shall pick up areas of concern outwith the Bill but within its scope. The issues I shall raise are predominantly those that might fall under the umbrella of the Armed Forces covenant. I was delighted to hear, among others, the noble Lord, Lord Bilimoria, the noble Earl, Lord Attlee, the noble Baroness, Lady Hodgson, and, in his maiden speech, the noble Lord, Lord Shinkwin, talk about this really important document. Of course the Armed Forces Act 2011 incorporated the requirement for the Secretary of State to report annually on the covenant, and it is very necessary that we hold the Government to account on that.

Shortly after the operations in the first Gulf War ended, clusters of previously fit veterans reported developing unusual diseases, illnesses and symptoms. While all these symptoms can be present within the Armed Forces community and the general population more widely, what is unusual is that ill Gulf War veterans reported more of these symptoms than expected, and at a greater intensity.

As many as 33,000 UK Gulf War veterans could potentially be living with illnesses connected to their service in the Gulf, yet to date there has been little meaningful research regarding best practice to alleviate some of the associated symptoms. The veterans who have developed illnesses as a result of their service should be properly supported and there should be improved awareness of their specific health needs. I should mention that this is confined not just to our veterans but to those in the EU, the US and Canada. Will the Minister commit to the MoD investing in further research that will improve recovery outcomes for this particular group and set up formal communication channels to convey the results of US research developments for Gulf War veterans living here in the UK?

Military compensation is awarded partly as recompense for an ex-serviceperson’s loss of earnings. The Armed Forces compensation scheme, guaranteed income payments and the supplementary allowances paid under the war pensions scheme specifically relate to employment. However, military compensation payments are currently uprated annually in line with price inflation rather than average earnings, meaning that the real-terms value of these payments is decreasing year on year.

Indexation to the CPI is the least generous option, meaning that injured service personnel are currently financially disadvantaged compared to civilians in employment and their peers who remain in military service. This paints the Government in an ungenerous light to war veterans. The Government should index-link those employment-related aspects of war disablement pensions and Armed Forces compensation scheme payments to the triple lock. This would protect the value of military compensation payments for years to come. I know the Minister has pushed back on this, but I am asking whether he would consider it again.

Service personnel and veterans who are injured in service are able to access compensation through the war pensions scheme for those with conditions sustained on or before 5 April 2005, or through the Armed Forces compensation scheme for those with conditions sustained on or after 6 April 2005. Only veterans

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injured after April 2005 are currently able to retain their military compensation awards in full when accessing support for their social care. In contrast, veterans who were injured before that date typically find that they can keep only the first £10 per week of their compensation. It is unfair that the date on which a veteran was injured should determine the level of support that they receive, and it is not in line with the spirit of the Armed Forces covenant. Would the Minister consider amending the statutory guidance for charging so that all military compensation payments are fully exempted from financial assessments for social care support, whether residential or non-residential?

Many noble Lords have supported the case for those people with mesothelioma, including the noble Lords, Lord West and Lord Empey, the noble and gallant Lord, Lord Boyce, and the noble Baroness, Lady Taylor of Bolton. In December 2015, the Veterans Minister announced that veterans diagnosed with mesothelioma on or after 16 December 2015 will be offered the choice between receiving a traditional war pension or £140,000 in lump sum compensation. Does the Minister think it fair that veterans diagnosed with mesothelioma before 16 December 2015, and who are already in receipt of a war pension, will not be eligible for the new scheme? Around 60 veterans have been denied access to the new lump sum award, and I would like to push the Minister on why the Government have not yet accommodated this small group but are “looking into it”. To put not too fine a point on it, time is short. A rethink would be welcomed.

I move on to the investigation of serious crime, murder, sexual assault and rape. Here, I am referring to offences not in battle but in ordinary circumstances: in work, in the community living that the Armed Forces find themselves in, and in leisure. When allegations are made that a member of the Armed Forces has violated service law, a CO has broad discretion to decide whether to investigate or to refer to the relevant police force. The Armed Forces Act 2006 requires this to be mandatory for certain criminal offences, but explicitly excludes sexual assault, voyeurism and sexual activity in a public lavatory. So if notified of such a crime, a CO is not required to refer the matter to the police. Discretion creates room for confusion. Failure of the services to maintain a crime register means that there has been no way for HMIC to corroborate this. The Government stated that victims may bypass their commanding officer and go directly to the police, but we have heard the anxiety from noble and gallant Lords sitting opposite me that this would undermine the chain of command and the training that service personnel receive to work through the established framework.

Service police forces are institutionally unable to offer the necessary independence in cases involving allegations of serious sexual assault and rape, especially in cases where both the victim and alleged perpetrator are service personnel, as there is a risk they may know those involved. Service police may have been trained, but they do not have the expertise and experience to investigate the most serious offences. In its report, HMIC has raised a number of concerns on this matter. Should not allegations of sexual assault and rape

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involving members of the Armed Forces always be investigated by civilian, rather than service, police forces? Confusingly, the HIMC report sets out that, for the Army, there is now notification of all serious sexual offences to a civilian police force. However, the report does not state whether this process is a requirement or an option and where it fits in with other protocols or applicability across other services. Could the Minister clarify this point?

In the civilian sphere, the IPCC is charged with adding independence to the oversight and handling of complaints. No such body exists to deal with the service police forces, which undermines the rule of law. HMIC has recommended that an independent body provides oversight. Are the Government minded to accept such a recommendation?

I would like to take the House to an area covered in the Health and Social Care Act 2012. Great strides have been made in the last few years on health, such as the wonderful rehabilitation work at Headley Court and the excellence at the Ministry of Defence health units embedded in hospitals. The work done with veterans with mental health issues is a great stride forward, but the evidence suggests that those serving who have a mental health problem do not always seek help. There is still a stigma. Within the NHS, parity of esteem of physical and mental health is enshrined in law, and the messages are changing. The noble Lord, Lord Young of Norwood Green, spoke about a cultural change, but this cultural change has not yet found its way into the Armed Forces. Could the Minister give me an idea of the Government’s thinking on this issue?

Finally, to revisit something that was raised by the noble Lord, Lord Judd, full-time education or training is now compulsory for those up to the age of 18. I have visited HMS “Raleigh” and seen the duty of care that is shown to the young men and women training there. I also understand that there are Ofsted inspections. However, could the Minister confirm when the MoD last looked at the issue of the age when a serviceman or woman can enlist?

I am happy to take answers from the Minister in the form of a letter, copied to all noble Lords, if time does not permit a full response.

3.28 pm

Lord Touhig (Lab): My Lords, the House will perhaps understand if I say I have a feeling I have been here before—a sense of déjà vu. I was on the government side as Defence Minister and in 2005 took the Armed Forces Bill through the other place. However, I never saw it through to becoming an Act. The Prime Minister, Tony Blair, phoned me and said he had to make room for younger members of his Government—and, in an instant, I was no longer a Minister. My successor, friend and colleague, and now deputy leader of my party, Tom Watson, took the Bill through to complete its passage in the other place. I have no complaints about losing office, having served for most of the time that my party was in government—although it did take some getting used to, to be told at 57 that I was too old to be the Veterans Minister.

That 2006 Act was the biggest piece of Armed Forces legislation for many years. It not only completed major reforms to the Armed Forces system of justice

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but was amended to include a pardon for the 308 shot-at-dawns—our own men whom we executed in the First World War.

I think that all would agree we have had an excellent debate today, and I look forward to Committee when we will examine the Bill in much more detail. We have certainly had three excellent maiden speeches. Perhaps the House will indulge me if I pay tribute to the speech made by my noble friend Lord Murphy of Torfaen. We are each other’s oldest friends; I think that in our first photograph together we are aged three, playing in the sand-pit at Brynteg nursery in Abersychan. His maiden speech was first class, and I expected nothing else.

His work as Northern Ireland Secretary and as Minister of State before then saw him make a major contribution to the peace process. He is highly regarded and respected on all sides and, although he has only just made his maiden speech today, almost on the day he came into the House the Home Secretary asked him if he would chair the Joint Committee on the draft Investigatory Powers Bill which has reported today. I am not alone in looking forward to his further contributions.

The House has also been fortunate to hear maiden speeches from the noble Baroness, Lady Pidding, and the noble Lord, Lord Shinkwin. The noble Baroness, Lady Pidding, served on Chiltern District Council. I, too, served in local government. I do not know whether she shares my experience that when I ceased to be a councillor and became an MP I found that I had swapped power for mere influence. In her excellent speech she spoke about volunteers. All parties require volunteers and we know how much we rely on them. It reminded me of an occasion when someone came to me having just joined the Griffithstown and Sebastopol branch of the Labour Party, of which I was secretary. He had attended his third meeting, seemed rather fed up, and said, “I joined the Labour Party to change the world, not the minutes of the last meeting”.

I have had the pleasure and honour of knowing the noble Lord, Lord Shinkwin, for a number of years and know well of his hard work with the Royal British Legion. His brother John worked with me for a year and did tremendous work. The noble Lord’s speech was thoughtful, powerful and moving and was underpinned by his deep and real faith. The Feast of Our Lady of Lourdes is a wonderful day on which to make a maiden speech in your Lordships’ House.

I thank the Minister for all his work and for the helpful briefings he has provided throughout as we have prepared for this Second Reading. I look forward to working with him on the Bill.

My party in government has a proud record on defence. At the end of the Second World War it was a Labour Government who committed us to an independent nuclear deterrent and who helped create NATO. I hope that that message is not lost on some members of my party today who might need some re-education. Between 1997 and 2010 it was a Labour Government who ended the ban on LGBT men and women serving in the Armed Forces and passed the Armed Forces Act 2006, which I have already mentioned. We invested in equipment to support our troops serving both at

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home and abroad, increased defence spending by 10% in real terms and invested in world-class health facilities for the Armed Forces such as the Queen Elizabeth hospital in Birmingham, which I have visited.

It is important to note that throughout this Bill’s passage in the other place it received cross-party support, with colleagues from across the political spectrum recognising the constitutional importance of this legislation but also providing a level of scrutiny that will give our Armed Forces the best possible deal in the coming years. It is rare that a piece of legislation receives such strong cross-party support, which again underpins its importance. The way in which the Bill was changed in the Commons is a testament to the impact of cross-party working together. That, for me, is Parliament working at its best.

The Government made an amendment to the Bill to remove outdated legislation that saw homosexual acts constitute grounds for discharging a member from the Armed Forces, following an amendment tabled by my party and supported by other parties. On Report the Government agreed to a compensation package for veterans suffering from mesothelioma following the debate on a Labour amendment. We have had some important contributions today from the noble Lord, Lord Empey, the noble and gallant Lord, Lord Boyce, and the noble Lord, Lord West of Spithead, who have shown us that there is still a gap we need to fill in that respect. Now that the Bill has come here, we will continue to work with colleagues across the House to secure the best settlement for our Armed Forces.

As my honourable friend Maria Eagle, who was our shadow Defence Secretary at Second Reading, said in the other place, Labour welcomes the intention of this Bill. Its ambition to simplify the system when people are charged with offences is certainly a step in the right direction. When I served as a Member of Parliament, I often came across cases from constituents who found the bureaucratic challenges thrown up by the civil justice system a barrier to gaining the justice they were seeking. We certainly do not want that in the Armed Forces.

Having said this, we will continue to press the issue of how rape and sexual assault are reported and dealt with in the Armed Forces. I am sure that we on these Benches are not alone in believing that it is a serious issue that warrants further attention and scrutiny, not least to enshrine equality into our Armed Forces.

The Government announced before Christmas their intention to allow women to serve in all front-line roles. Clearly that will be contentious, as the noble Earl, Lord Attlee, said in his contribution. It demonstrates a wider commitment to equality in the Armed Forces but it must come with a greater responsibility to deal with issues such as rape and sexual assault. On this side, we want men and women to see joining Britain’s Armed Forces as an opportunity to get a career, a skill, a life-changing experience and yes, for some, a career for life. This is why we feel strongly about the need to face up to the issues surrounding sexual misbehaviour—a point made by my noble friend Lady Taylor of Bolton. No man or woman thinking about joining our Armed Forces should be left in any doubt about our concerns on this matter. It is

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surely at the heart of the equality agenda to which we all aspire and which we want to see enacted.

I have a number of questions for the Minister. He mentioned the question of the territorial extent of the Bill so far as it concerns Gibraltar and gave us a good update. One assumes that we will have something, certainly by Report or Third Reading, so that we know whether or not it will extend to Gibraltar.

Secondly, there is some interest in how reports of murder, sexual assault and rape are dealt with in the Armed Forces. Can the Minister confirm what policies are currently in place to deal with such reports, how they are investigated and how they are prosecuted, and will he place a copy of these policies in the Library of the House?

Thirdly, in 2013, during the passage of what is now the Defence Reform Act 2014, the then Defence Secretary, Philip Hammond, stated that if there was a case to be made to legislate to provide further employment protection for reservists, this could be done in the Armed Forces Bill. However, the Bill does not currently include any provisions to provide further employment protection for reservists. Can the Minister say why this has not been included in the Bill and whether any case was made to include it when the Bill was being prepared?

Fourthly, there is a gap in the Armed Forces compensation scheme as it impacts upon people with mental health problems. It can take years—perhaps five years or more—for mental health to be diagnosed. Once diagnosed there is no immediate financial assistance under the scheme Those with physical injuries can claim up to £60,000 if their injuries are level 8 or worse, but mental health is classified below this level. The solution may be a fast-track payment for mental health sufferers or even an interim compensation scheme. I appreciate the Minister may want to think about this matter and perhaps we can pursue it in Committee.

On this side we welcome the fact that the Government are finally recognising that homosexual acts no longer constitute grounds for discharging a member from the Armed Forces and that this is being enshrined in law.

I will raise the same question in relation to the Merchant Navy. I recognise that it is outwith the scope of this Bill but what steps have been taken to address this issue in the Merchant Navy? Specifically, can the Minister say whether he has had discussions with the Department for Transport, which has responsibility for the Merchant Navy, and whether we can expect further legislation to ensure that the Merchant Navy is on a level playing field with the Armed Forces on this matter? I accept that he might want to go back to the department before replying on this point, but perhaps we could have some information by Committee.

To conclude, I look forward to working with colleagues across the House on the Bill and I reiterate my party’s support for it. During the time I was a Minister of Defence I had my own mission statement. It was simply this: we will value our service men and women and their families and do everything practical in our power to demonstrate that. I am sure that, by working together across the House on the Bill, we will show the British Armed Forces that we are on their side.

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3.38 pm

Earl Howe: My Lords, I am sure that all noble Lords will agree that we have had a very good debate today with contributions of the highest quality. It has been a debate enriched and adorned by three excellent maiden speeches. It is a pleasure for me to say that I agreed and identified with every word of all three of them.

The difficulty of doing justice to all contributions is, I hope, obvious. I shall do my best to respond to as many as possible of the points that have been raised, but I hope that noble Lords will bear with me if I do not manage to answer each and every one today. I shall look carefully at Hansard and will write to any noble Lord where I have something to add.

Perhaps I may begin by responding to the many noble Lords—including the noble Lords, Lord West of Spithead and Lord Empey, the noble and gallant Lords, Lord Craig and Lord Boyce, the noble Lords, Lord Ramsbotham, Lord Bilimoria and Lord Burnett, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and others—who raised a series of concerns falling under the broad heading of the law relating to human rights.

I turn first to the concerns about combat immunity and the so-called Smith judgment, raised by the noble Lord, Lord West, and the noble and gallant Lord, Lord Boyce. Without any disrespect to the noble and learned Lord, Lord Walker of Gestingthorpe, whose remarks I found very helpful, the Government are very concerned about the judgment, because the court ruled that some issues relating to military operations may be justiciable. This was one of the reasons for our manifesto commitment to deal with the huge volume of litigation currently engulfing the Armed Forces. We are determined to honour that.

Our particular concern is that the Smith judgment has left the position on liability for events on the battlefield unclear. We continue to defend the doctrine of combat immunity vigorously and a number of high-profile test cases are ongoing. We are examining the option of legislating, but we would look to do so using the most appropriate means. Once our proposals are mature we will announce further details. Clearly, it is important that we get this right and that operational effectiveness is not harmed.

Many of the noble Lords I just mentioned raised particular concerns about the volume of claims being brought against the Ministry of Defence raising human rights issues. Let me make clear the Government’s determination to address the risks arising from developments in international human rights law, which has the potential to impose ever-greater constraints on the Armed Forces and the MoD to operate effectively in defending the UK and its interests. The Government are committed to upholding the rule of law. Their view is that international humanitarian law, as embodied in the Geneva Conventions, should have primacy over human rights law for ensuring that military operations are conducted lawfully.

The Government are considering the options available to safeguard the ability of the Armed Forces to do their job, as I have said. Among our key objectives, we want to ensure that our service personnel are not

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pressured to become unduly risk-averse by the prospect of unmeritorious legal harassment, and that commanders can take necessarily rapid and often high-risk decisions. We are currently looking into a number of areas, including examining different areas of legislation where changes could be made and what more we can do to support our Armed Forces personnel and their families. We have established a programme to look at the different ways we can reduce the cost and volume of litigation against the MoD to ensure that our Armed Forces continue to operate unimpeded. The Queen’s Speech included a clear commitment to bring forward proposals for a Bill of Rights to replace the Human Rights Act. We are actively working with the Ministry of Justice on the shape of the Bill to ensure that our Armed Forces can operate effectively in armed conflicts without overzealous constraint.

In addition, the Government are concerned to ensure that the extent of the doctrine of combat immunity is clear. We continue to defend the doctrine vigorously. As I mentioned, a number of high-profile test cases are going on. I reassure noble Lords that the doctrine of combat immunity continues to apply to those taking decisions in the heat of battle.

Lord Bilimoria: I thank the Minister for the very positive response to the points we raised, but the covenant was enacted in a way that was never done before. It is now reported on every year. It is a very positive measure. Why is it not possible for this huge issue to be incorporated in this Bill to protect the immunity of our troops, to allow them to fight with confidence and not worry about lawyers chasing them?

Earl Howe: My Lords, as I said, and I hope the noble Lord will agree, it is very important that we get this right. I was reassured by the comments of the noble and learned Lord, Lord Walker of Gestingthorpe, who said he did not feel personally that this was the right Bill in which to enact any changes. I am as eager as the noble Lord, Lord Bilimoria, to see this matter sorted out and I have no doubt that we can return to it in Committee—in fact, I think it would be useful to do so—but I am not yet persuaded that we are in the right place to legislate in the time available to us for the Bill.

The vast majority of UK service personnel have conducted themselves highly professionally and have acted in accordance with policy and legal obligations. However, in the context of the work done by the Iraq Historic Allegations Team, or IHAT, which has been mentioned by a number of noble Lords, the law requires that allegations that crimes have been committed by members of the UK forces should be investigated. In our view, the IHAT is necessary, given the unprecedented number of allegations. Having this independent investigative body has enabled us to defeat the claimants’ attempt to persuade the court to order a single public inquiry, which would have taken many years and costed an estimated £200 million. The IHAT investigations can be completed more quickly and cheaply, ending sooner the uncertainty faced by service personnel.

It is true that the IHAT’s investigations have not yet resulted in any prosecutions. However, it has completed a number of investigations. The lack of prosecutions is because in some cases the evidence showed that no

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criminal offence was committed, while in others the evidence did not meet the domestic test for bringing a prosecution. It has taken a long time because it is far more difficult to carry out investigations into events in Iraq then events in England. Witnesses are often difficult to locate and to interview. The solicitors representing those claimants have also been extremely unco-operative, even though they called the investigations in the first place. I can assure the House that the IHAT is getting on with its job as promptly and professionally as it can. I urge the House not to interpret the absence of any measures on this in this Bill as an indication of our intent to do something. Work is in hand and we will set out proposals as soon as we are able.

Lord West of Spithead: Will the Minister say something about the firms, one of which, Leigh Day, has, I think, gone through the Solicitors Regulation Authority already, and PIL? Where do we stand in terms of what has been going on in Iraq with what is loosely termed “ambulance chasing”?

Earl Howe: These are matters currently under scrutiny. The firms that the noble Lord mentioned are, I understand, being quizzed by the regulatory authority for the solicitors’ profession. I am not aware of the outcome of those proceedings, but the noble Lord is right to pinpoint the issue of the way in which those firms received their instructions in the first place. That is a matter that we are as keen to get to the bottom of as he is.

Lord Thomas of Gresford: Can the Minister update us on the International Criminal Court preliminary examination? Where are we with that?

Earl Howe: I fear that I cannot. I will need to write to the noble Lord about that and I will be happy to do so.

I extend thanks, briefly, to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for his contribution. I will not attempt to answer all the points he made, but I reassure the House again that these issues are under active consideration with the MoD and very recently, as I am sure the noble Lord, Lord Bilimoria, will be pleased to know, by the National Security Council.

My noble friend Lord Freeman was concerned that service personnel overseas might be subject to the criminal law of the host nation. We take steps to ensure that, before members of the Armed Forces are deployed overseas, arrangements are made with the host nations to ensure that the conduct of those forces in the course of their duties will not be subject to criminal proceedings under the criminal justice system of the host nation. Allegations of criminal misconduct will be dealt with under UK law, under the system established by the Armed Forces Act 2006.

The noble Baroness, Lady Taylor of Bolton, spoke of the need to do more about publicising data on sexual offences. While we are not yet convinced that it is necessary or appropriate to set out requirements in legislation for the publication of this data, the department is determined to make the data that we publish robust, consistent and accessible. To that end, we are actively

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considering how best to publish this data as an official statistic. The Service Police Crime Bureau records, for all three services, allegations of rape and sexual assault made to the service police. This information is released regularly in response to Parliamentary Questions and FOI requests. In the case of the latter, the information is uploaded to the MoD’s online publication scheme, where it can be freely accessed.

The Service Prosecuting Authority records, for each year, the number of cases referred to it, the number of cases in which charges are preferred and the number of cases where a conviction is secured. The Military Court Service regularly publishes, on the internet, details of every case heard at the court martial, including offences, outcomes and punishments. There is, therefore, a clear picture of the extent of this type of offending within the services, giving a strong indication of the proportion of case referred from the service police to the Service Prosecuting Authority which were prosecuted, and the conviction rate in such cases.

The noble Lord, Lord Touhig, also touched on the subject of sexual offences. It hardly requires me to emphasise—but I will—that sexual assault is unacceptable, in wider society or within the Armed Forces. At present, a whole range of allegations covering most sexual offences must be reported to the service police by the commanding officer. They can also be reported by the victim direct to the service police and, of course, the service police can investigate on their own initiative, but there are some, such as sexual assault, which are referred back, at least initially, to the CO. The Bill changes that. Where the service police have investigated any sexual offence and there is sufficient evidence to charge, the service police will be required to refer the case direct to the Service Prosecuting Authority. That is provided for in Clause 3. I will be happy to write to the noble Lord with further details around some of the questions he asked on this.

The noble Lord, Lord Thomas, took us to the whole system of courts martial and the service justice system. I should explain, in answer to the broad thrust of his question, that there is already a prosecutors protocol in place between the Director of Public Prosecutions, the Director of Service Prosecutions and the Defence Secretary which sets out the principles to be applied in determining where a case is best dealt with if the conduct occurred in circumstance such that both the civilian criminal justice system and the service justice system have jurisdiction to deal with the case. The protocol recognises that any offence can be dealt with by the service authorities.

The main principle in deciding whether it is the service authorities or the civilian authorities which acts is whether the offence has any civilian context, especially a civilian victim. If it does have a civilian context, it will almost certainly be the civilian police, prosecuting authority and courts which deal with the case. Under the protocol, many cases involving service personnel are dealt with by the civilian police. The service police are able to investigate, but if the circumstances are such that it is considered more appropriate for the civilian police to do so, then they will take the lead. We expect the prosecutors protocol to continue to apply even after the draw-down of

11 Feb 2016 : Column 2420

forces from Germany, so that cases will continue to be dealt with in the appropriate jurisdiction from the outset.

Of course, we must not lose sight of the fact that the UK civilian police do not have jurisdiction overseas, and as long as the Armed Forces have an overseas role we will need to have a justice system which is capable of functioning extraterritorially and which supports the operational effectiveness of the services. The noble Lord also asked—

Lord Thomas of Gresford: The noble Earl will know that murder is under universal jurisdiction. Do I take it that murder cases arising out of the IHAT investigations, for example, will be referred to the civil court or to courts martial in this country?

Earl Howe: My Lords, as I said, there is a protocol which lays down pretty clear guidelines as to how individual cases are handled. I do not think I can give a blanket answer to the noble Lord; it will depend on the circumstances of the case.

He raised other points, including the composition of courts martial and majority verdicts—a theme also pursued by the noble Lord, Lord Burnett. The proposal to change the current rules under which findings of guilt or innocence may be by simple majority would involve profound changes to the court martial system. The court martial may sit in the United Kingdom or anywhere in the world in times of peace or in conflict. Court martial trials may be decided, as in a magistrates’ court, by a small panel, usually of three officers and warrant officers, but a panel of five is required in more serious cases. A service defendant will ordinarily be tried by lay members wholly of his own service. The composition of the panel is determined by the court administration officer who is appointed by the defence counsel. The CAO will draw names at random from a pool of potential members and, having checked that they are eligible for membership of the particular board, will specify who the lay members should be. I would like to write further to both noble Lords to flesh out this whole issue but the great advantage of reaching a decision by majority is that it avoids a hung jury and there is no need for a retrial in the event of a lack of unanimity or qualified majority. As the noble Lords will know, this is a long-established process.

The noble Lords, Lord West and Lord Empey, the noble Baronesses, Lady Taylor, and Lady Jolly, and others raised the issue of mesothelioma. The background to this was the announcement by my honourable friend the Minister for Defence Personnel and Veterans in December that veterans diagnosed with mesothelioma from that date would have the option to receive a £140,000 lump sum, to be paid from 11 April this year. I simply say that the Government understand the concerns that have been voiced in this debate and I can tell the House that work is actively continuing on the matter of those diagnosed before 16 December last year. While I cannot discuss that issue any further today, we hope to be in a position to say something soon.

The right reverend Prelate the Bishop of Portsmouth, my noble friend—

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Lord West of Spithead: I am sorry to intervene. That sounds very good news but I stress again that three to five people are dying each week. That is the only point I make.

Earl Howe: That is a very pertinent point to make and the Government are fully aware of the need to make speed as far as we can.

The right reverend Prelate the Bishop of Portsmouth, my noble friends Lady Hodgson and Lady Scott, and the noble Lords, Lord Ramsbotham and Lord Judd, all referred to the importance of service families. The families of our Armed Forces personnel play a vital role in enabling them to do the job that they do, for which the Government are extremely grateful. We have already taken a number of important steps to that end, but, following feedback, we have started to develop a new UK Armed Forces family strategy to review and improve the support we provide to families. That will be launched by the end of 2016. I could say a huge amount on the topics covered by my noble friend Lady Hodgson, especially on housing and veterans’ mental health, but the key question she posed, which I will briefly address, is how well we think the covenant is working.

At the start of the year, we consulted all three single services to understand how they perceived they were disadvantaged. The result has been a comprehensive assessment of delivery in the five key areas of healthcare, local services, spouse employment, education and commercial support. We have also undertaken a challenging package of work to check that our processes and procedures are working. The results were clear: the covenant is working but we need to make it clearer and easier for members of the Armed Forces community to access the support that is available, and delivery is not uniform. We are also aware that we need a mechanism to identify and address localised problems. Better metrics will help and for the first time the Armed Forces covenant annual report includes assessments of our performance in a number of areas. But we also need to be able to measure how the covenant is working at a local level, so the Ministry of Defence will continue to work with other government departments and the devolved Administrations and relevant charities to identify and develop relevant data.

I hope the noble and learned Lord, Lord Brown, and the noble Baroness, Lady Jolly, will forgive me for not addressing the points they made about the Armed Forces Compensation Scheme. As time is short, I will write to them on that. I would, however, like to make two points in response to the noble Lord, Lord Ramsbotham, who indicated that the MoD has no clout with other departments and that the covenant is in danger of fading from the public eye. First, this year the Prime Minister will personally take the helm of the Home Affairs (Armed Forces Covenant) sub-Committee and ensure that departments work together effectively. Secondly, the Government have committed to a £10 million annual fund in perpetuity to support delivery of the covenant. The existence of that fund will surely keep it in the public eye.

Lord Ramsbotham: I thank the Minister for that. My main point was that if the statement is made

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verbally then we will have a chance every year to maintain momentum and make certain that all these issues are pursued.

Earl Howe: I will reflect on that point in the customary way and write to the noble Lord about that suggestion.

Lord Empey: My Lords, I am in favour of annual reporting and we pushed that hard last time. I mentioned that the Northern Ireland Executive have failed to make a report. Therefore, that opportunity for Parliament to scrutinise what is happening with a reserved and accepted function, which will never be devolved, is no longer available. I raised this at the last occasion and would be most grateful if the Minister will ask his department to look at it. I fear that it is only a matter of time before something goes wrong.

Earl Howe: I will, of course, take that away as well. I simply say that delivery of the covenant extends to the whole of the UK and that there is money to underpin that in Northern Ireland. The annual report includes input from the Welsh and Scottish Governments and the Northern Ireland Executive. It is important that we continue to work together to ensure that there is universal support for the Armed Forces wherever they work and live, and that must extend to Northern Ireland. In 2013, the Select Committee on Northern Ireland Affairs assessed that over 93% of covenant measures applied in Northern Ireland. It is sensible that in 2016 we update our assessment of how the covenant is being delivered there and I assure the noble Lord that that will be a priority.

I hope that noble Lords will forgive me for not covering the other things I would have liked to cover. The noble Lords, Lord Campbell of Pittenweem and Lord Young of Norwood Green, and the noble and learned Lord, Lord Brown, referred to Clause 14 and I welcome their comments. My noble friend Lord Attlee referred to women in combat roles and the blurred distinction—as he put it—between the regular and the reserved services.

The noble Lord, Lord Judd, and the noble Baroness, Lady Jolly, referred to the recruitment of under-18s and in particular how they were missing out on education. The noble Baroness also spoke about Gulf War syndrome and a range of other subjects, including the commanding officer’s discretion to investigate sexual assault, and the independent oversight of service police. I promise to include these and other matters in letters to noble Lords which I will copy everybody. I also hope to follow up the important comments made by the right reverend Prelate the Bishop of Portsmouth on service chaplains. The same applies to my noble friend Lord Lyell in answer to his questions about Gibraltar and the British Overseas Territories.

This is a good Bill. It is small but it does what it needs to do. I am greatly encouraged by the welcome that noble Lords have given it today and I look forward to Committee and the exchanges that that will undoubtedly bring. I beg to move.

Bill read a second time and committed to a Grand Committee.

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Recall of MPs Act 2015 (Recall Petition) Regulations 2016

Recall of MPs Act 2015 (Recall Petition) Regulations 2016

Motion to Approve

4.04 pm

Moved by Lord Bridges of Headley

That the draft regulations laid before the House on 15 December 2015 be approved.

Relevant documents: 14th Report from the Joint Committee on Statutory Instruments, 14th Report from the Secondary Legislation Scrutiny Committee

The Parliamentary Secretary, Cabinet Office (Lord Bridges of Headley) (Con): Your Lordships will recall the passage of the Recall of MPs Act 2015 in the last Parliament. The Act set out three conditions which would result in a recall petition being triggered, potentially resulting in an MP losing their seat and a by-election being held. It is perhaps worth reminding your Lordships that following passionate debates in this House, improvements were made to the recall procedure, including reducing the signing period from eight to six weeks and increasing the number of signing places that could be designated from a maximum of four to a maximum of 10.

These regulations prescribe how the petition should be conducted, the arrangements for signing, the mechanism for challenging the outcome, and the creation of offences in relation to the petition. The regulations also respond to amendments rejected when the Bill was before this House: for example, the suggestion of the noble Baroness, Lady Hayter, that the number of registered electors eligible to sign the petition should be made public, which will happen on the third working day after receipt of the Speaker’s notice and again on the first day of the petition, and to include successful applications to register to vote made on or before the day of the Speaker’s notice.

I was delighted to see the amicable passage of the regulations through the Delegated Legislation Committee in the other place two weeks ago. I was further heartened by the reaffirmed commitment from the Opposition in the other place to the implementation of the recall procedure and, by extension, these regulations.

No doubt your Lordships will have noted the period of time that elapsed between the Act receiving Royal Assent in March 2015 and when the regulations were initially laid in November. Obviously, this is a substantial set of regulations, as is proper for electoral law, and it has taken some time to draft. Furthermore, as was touched upon in the other place, the original regulations laid in November were re-laid in December after several anomalies were identified, particularly concerning the Welsh translation of some forms. Again, I can say only that once these errors were discovered we sought to rectify them immediately.

The regulations are comprehensive in setting out the petition process, as is the case for regulations prescribing other electoral events. Wherever possible, the processes are modelled on those for elections, with modifications to cater for differences, such as the petition being open for six weeks and the ability for the petition officer to designate up to a maximum of

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10 signing places. The processes will therefore be familiar to voters and administrators and will adhere to the very high democratic standards that we demand of other electoral events.

The regulations also reflect views expressed during scrutiny of the Act and extensive consultation. As well as carrying out our statutory duty to consult the Electoral Commission, we have consulted with a number of stakeholders, including the Association of Electoral Administrators. Comprehensive user testing has also been undertaken on the key petition forms and their wording. We have opted for petition notice letters to be sent to electors as opposed to poll cards, so that those who regularly vote at elections are not inadvertently prompted to sign a petition, in a way similar to that in which a poll card prompts us to vote at an election.

Turning to the detail of the provisions, I assure your Lordships that I will not go through each of the 174 pages in great detail. Part 1 sets out how the regulations apply to the different parts of the UK. It also gives an interpretation of the common phrases used throughout the chapters. Part 2 is concerned with compiling the register of those eligible to sign the petition. It stipulates that the register must be constructed by street name where possible and include the names and elector numbers of those eligible to participate in the petition.

Part 3 forms a substantial part of the regulations. It concerns the conduct of the petition and is broken down into several chapters. Chapter 1 deals with general provisions such as the signing sheet. Chapter 2 sets out the steps that petition officers must take before the petition is available for signing. Chapter 3 sets out the manner in which the petition is to be administered at the signing place, including those who can enter a signing place, the delivery and receipt of signing sheets, and daily verification of the contents of the ballot box. Accredited observers will not be allowed at the signing location. Given that a petition can be signed only one way, knowing that someone has signed the petition is in essence the same as knowing what that person’s preferred outcome is. As such, the risk of signers feeling intimidated by the presence of observers is substantial.

Chapter 4 deals with when and how the count should be conducted, including the requirement for a postal signing sheet to be accompanied by a valid postal petition statement—or a declaration of identity in Northern Ireland—and the process for determining the validity of signing sheets by the petition officer. Chapter 5 deals with the steps that the petition officer should take after the count has concluded in relation to the storage and future disposal of the documentation completed during the administration of the petition.

Part 5 of the regulations prescribes the issue and receipt of postal signing sheets, along with who can observe such proceedings. This is restricted to the petition officer, his staff and representatives of the Electoral Commission. We have ruled out accredited observers from attending these sessions, as there is a need to protect the details of those who have signed the petition and to prevent a tally of signatories being made. Therefore, given what I have said, accredited observers will be allowed to observe only the count stage

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of a petition. However, the Electoral Commission will be able to observe all stages in order to ensure propriety.

Part 6 of the regulations creates a number of offences relating to the petition process. The offences created are in line with those already in existence for other electoral events. Finally, Part 7 contains miscellaneous provisions, the most significant of which is in relation to the questioning of the outcome of a petition.

Given the amendment in the name of the noble Baroness, Lady Hayter, I will expand a little upon the marked register. After a recall petition has concluded, a copy of the marked register will be available only to the Electoral Commission, police and security services. However, we recognise that some restricted access may be required to help substantiate suspicion of fraud or irregularities—hence we have provided for the register to be available to anyone for inspection under supervision if the petition officer is satisfied that fraud may have taken place.

This contrasts with an election where a copy of the marked register is available to various bodies, including political parties, which may use it for campaigning purposes. Additionally, following an election, the marked register may be inspected under supervision by anyone who makes a successful application to the electoral registration officer to inspect it, stating the reasons for making the request and demonstrating why the inspection of a copy of the full register or unmarked lists would not be sufficient to achieve that purpose. It is worth noting, therefore, that there is not unrestricted access to the marked register after an election. The Government therefore feel that this provision strikes the right balance between transparency and secrecy.

I should also point out that including this provision in the regulations rather than the primary legislation is not an exceptional arrangement. The legislation governing the marked register for elections is detailed in the Representation of the People (England and Wales) Regulations 2001 and the equivalent regulations for Scotland and Northern Ireland. Moreover, these provisions fit with the rest of the detailed conduct arrangements which are provided for in secondary legislation. The Recall of MPs Act under which these regulations have been brought forward is clear under Section 18 that further provision may be brought forward by regulation pertaining to the conduct of a recall petition. That includes access to the marked register.

In the last Parliament, both governing parties and the Opposition all had manifesto commitments to introduce a power of recall. The Government continue to believe that this is one of many vital steps to help restore the public’s trust in politicians and in the functioning of the House of Commons. These regulations will deliver on that commitment. They provide a comprehensive set of provisions that will allow petitions to be administered fairly and effectively and I commend them to the House.

Amendment to the Motion

Moved by Baroness Hayter of Kentish Town

As an amendment to the above motion, at end insert “but this House regrets that the Government have made the decision to legislate on restrictions

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of use, supply and disclosure of the marked register following a recall petition in the draft Regulations, rather than in primary legislation.”

Baroness Hayter of Kentish Town (Lab): My Lords, I must thank the Minister, who could almost make statutory instruments sound fun. I seek, however, to move my amendment, which regrets that such an important decision on whether this is a secret vote or an open petition should be snuck away in a 174-page SI, which I think the Government hoped would be dealt with rather quickly in 10 minutes in the Moses Room, rather than, as we urged at the time, being included in the Bill. I will deal with my amendment to the Motion first and then attempt to cover all the remaining parts of the 174 pages before the moon rises.

4.15 pm

During the passage of the Bill, we urged the Government to take that decision on the nature of this unusual procedure: a vote on whether an MP should face a by-election. We asked the Government whether they considered that it was a petition, where people sign up and their signatures are known, or more like our traditional ballot where your vote was secret. If it was the latter, of course, then considerable efforts would have to be made to guarantee such secrecy, given that the simple act of casting a vote or signing can mean only one thing: being in favour of recall. As that would be the only option on the paper, the very act of signing would say to anyone which way you have chosen to express your opinion. The normal practice of publishing a marked register showing who has voted would therefore need to be curtailed, as it effectively shows who has called for a recall.

That is quite a change to the electoral law, regardless of what the Minister says, but even more importantly it is a policy decision. It is not an implementing decision, which is what SIs are really about. It is hard to blame the Minister for this, as he was not here at the time—but I will do so, all the same. Our regret is that the Government did not choose at the time of the passage of the Bill to take that fundamental policy decision. That is why we are arguing that this is not the correct use of a statutory instrument. We do not question the particular decision but the way that it is done. We happen to think that the Government are right to have opted for a secret poll, and in consequence for therefore not making a marked register available, but it should have been in the Bill rather than the regulations here today.

I can see why the Minister was so pleased that the regulations went through in the Commons. They took under 30 minutes there and, other than his honourable friend the Minister, there was only one speaker. I trust that we will not have that situation today. At the time, the Minister in the other place described the regulations as “extremely long and detailed”. Indeed, I doubt very much whether, other than my honourable colleague Wayne David, anyone else in that House knows that this is now to be a secret ballot rather than an open petition. That is therefore what lies behind my amendment.

However, we have some queries with the implementing of the decision, even once taken, particularly as it still leaves observers able visibly to identify who is going in

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to sign. Those people can be going in for only one purpose: to sign that the MP should face a by-election. I have read all 174 pages and I could not find anything in them to stop the names or photos being taken of people going in to call for a recall. Outside the normal area with which we are all familiar, I do not think that there is anything to prevent filming. Perhaps the Minister could clarify that.

What consultation took place with local authorities on these regulations and why was it not thought fit to involve political parties, given their expertise in all matters electoral? Who is to pay for the cost of the six-week recall and for any subsequent by-election? I would also like some clarification about the funding of the yes and no campaigns, especially as there will be any number of pro by-election campaigns but presumably only one campaign against a by-election being run by the incumbent MP.

We asked in Committee, and I think on Report, whether, if the Government did proceed with their wrong-headed plans to extend voting rights in perpetuity to nationals who had long since left these shores, by remaining on the electoral roll these non-taxpayers would then be permissible donors. If so, would they be able to fund an “MP must go” campaign, even from the Virgin Islands? We have still had no answer on this, despite these 174 pages of very detailed verbiage. Perhaps the Minister is now in a position to answer this. It is very significant for the funding of these campaigns, should they happen.

We also have some serious questions about the return which will be made by the various campaigns after the process is over. These are to be lodged with the petitions officer, who appears to have no responsibility for checking them. Those of us who finish work early will have seen Michael Crick’s revelations on Channel 4 this week about the thousands of pounds in hotel and other by-election expenses allegedly missing from the Conservatives’ returns, seemingly—this is the interesting point for these regulations—with no one responsible for checking these returns. Will the same happen here? If so, the campaigns could outspend any limit and, provided the paper return is on time and shows no discrepancy, then all would be safely filed away.

We were certainly told in Committee that no one would check whether the donors were indeed permissible donors. Would anyone check that no extras had been omitted from the returns, or would we have to rely on a member of the public to check the figures and raise concerns? PPERA simply says the responsible person must, within 30 days, at the end of the recall petition, deliver the returns to the petition officer. There is nothing about checking them. We did persuade the Government to amend the Bill so that the returns at that stage would have to be forwarded to the Electoral Commission, which would produce and publish a report on the recall petition process. But that was really to evaluate the process itself—it has told us it would not have time to check the veracity of the returns.

The Minister will, I hope, be very pleased that we concur with some of the decisions taken in these regulations. We are pleased that our call for a ban on publishing running totals of how many people have

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signed each day during the six weeks has been accepted. We are also pleased that, as the Minister has said, the actual figure needed for a call for recall—the 10% figure—will be published at the start of the process.

However, we continue to have concerns on another aspect, in regard to postal votes. The register will be published very quickly after the process is started and will be distributed to the signing locations before the closing date for the application for postal ballots. This means that someone can go along and sign in person, and then after that apply for a postal vote. At that point, there would be no check on whether they have already voted, as there is no automatic electronic record updated hour by hour. Therefore they will apply for a postal vote and will be sent one with no check until the very end of the process, when presumably the petition officer’s staff would need to check every single postal vote to assure themselves that no one had voted both in person and by post. Given that this is a six-week period, there may be quite a few such cases.

The form which is included in the regulations is really not very strongly worded to warn against this. Surely it ought to have said—it is on page 90 if anyone wants to look it up—that if you have already signed in person, you may not apply for a postal vote. But it only says that if you apply for a postal vote, in future you will not be able to sign in person. Added to this, on page 86, the signing form does not have a date on it, which surely should have been included. If there are arguments later as to whether someone had signed at the point that they applied for a postal vote, there will be no evidence as to when they had signed the petition. I would like the Minister to explain why on earth the date is not included on the form that someone will sign.

Finally, the daily verification of slips issued and returned, which is effectively a daily count, is presumably to take place at the petition station under the simple supervision of the presiding officer and one other person. This seems to be an extreme variation of the normal customs associated with voting in this country. Was it intended that it should be so different, or might usual process have been considered, such as the transportation of sealed boxes to secure, central locations where the seals may be broken and the contents securely packaged and stored prior to the count?

Just a week ago, the Law Commission called for a complete redrafting or, as it called it, a rationalisation of election law in a modern legislative framework, as it has become such a mess, with differing, sometimes inconsistent rules applying to different sorts of elections. Now, added to what the commission considered, we have a further 174 pages of regulations written for a long time ago, in that they demand P&P on printed material, when surely a recall petition will be all about tweets and Facebook, and there will be no limit on the use of those.

The Act, perhaps well-intentioned to achieve the Government’s and, indeed, the Opposition’s aim of having a recall measure, was hastily drafted and ill-thought-out, with one major policy decision left to a statutory instrument rather than included in the Bill. We have a statutory instrument which, because of its

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length, makes proper scrutiny impossible. If I were marking the Government’s homework, I would have to say, “Not good enough. Must try harder”. I beg to move.

Baroness Donaghy (Lab): My Lords, in the debate on the Recall of MPs Bill, as it then was, I recall my noble friend Lord Grocott saying that it is a measure of constitutional significance that will, as the Constitution Committee has said, affect the United Kingdom’s representative democracy. He reminded the House that had the Bill been an Act of Parliament 25 years before, only two MPs would have been affected. Although there were some supporters, including the noble Lord, Lord Cooper of Windrush, in his maiden speech, the overwhelming majority of speakers expressed concern. The noble Lord, Lord Forsyth of Drumlean, summed it up by saying:

“Members of Parliament are, bit by bit, dissolving their authority and removing the primacy of the House of Commons”.—[Official Report, 14/1/15; col. 820.]

As a former member and acting chair of the Committee on Standards in Public Life, I expressed the view in debate that the Bill was unlikely to improve standards in public life or the standing of Members of Parliament. I thought it would enhance the powers of the Executive at the expense of parliamentary democracy.

Nevertheless, we are where we are. The Bill is an Act and will not be implemented fully until the draft statutory instrument before us today has been approved. As has been said, the Bill was 60 pages long and the draft statutory instrument is 174 pages long. I must admit that I approached it with some trepidation, secretly hoping that it would do credit to Jarndyce v Jarndyce. In the interest of staying onside with my noble friend Lady Hayter, who has been incredibly loyal to her Front Bench on this and has played a straight bat throughout, I shall not reveal whether the draft fulfilled my secret hopes or not.

I think we all hope that the Act will never have to be used. I would be grateful if the Minister could give some guarantees about the issues raised by my noble friend in moving her amendment to the Motion. First, what guarantee will there be that people walking in to sign for recall will not be intimidated? Secondly, how will he ensure that there will be no double voting? Thirdly, how much would overseas people be able to put into a campaign? Fourthly, is the Minister content that the election returns will be checked?

4.30 pm

The impact assessment, such as it is, anticipates that recall petitions will occur “extremely infrequently”. Does the Minister have a definition for “extremely infrequently”? Is it as infrequent as floods in Cumbria, for instance, or England—or should I say English men—winning the football World Cup, or some other assumption, such as two MPs every 25 years?

My final point is to refer back to the concerns expressed about the Bill by the Delegated Powers and Regulatory Reform Committee in December 2014. The committee expressed concern about the “rolling up” of different scrutiny procedures which,

“appears to us to be unconventional in its extent”.

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The committee was referring to the then Clause 12(7) and (8), and stated:

“Taken together, the two subsections would allow powers that attract the affirmative procedure, powers that attract the negative procedure and powers that are not subject to any form of Parliamentary scrutiny to be exercisable in a single affirmative instrument”.

The committee was concerned that,

“in that respect, the practice could be seen to represent a further shifting of the legislative initiative from Parliament to the Executive, because it would leave to Ministers and not to Parliament the decision whether or not particular provision to be made by them should be subjected to a higher (or some) level of Parliamentary scrutiny”.

Those are not my words but those of the Delegated Powers and Regulatory Reform Committee.

Bearing in mind that the draft statutory instruments come from the Cabinet Office, which immediately raises suspicion in my mind, can the Minister give us an assurance that this “rolling up” of different scrutiny procedures does not occur in these draft instruments?

Lord Campbell-Savours (Lab): My noble friend Lady Hayter raised a number of issues, and I think that I have deleted nearly all of them from my own contribution, because she has obviously raised all 174 pages of the document, as have I.

I supported the principle of the legislation when it went through the House; I have no problem with recall, although I took an active part in opposing a particular section of the legislation which dealt with the 10 working day trigger for suspension, which to this day I believe will end up with some rather difficult decisions for Members—in particular, the Committee on Standards in Public Life in the other place, where, I suspect, Members will be compromised. However, today’s debate does not deal with the trigger but with what it describes as the conduct rules. It is a classic case of the size of the regulations exceeding the size of the Bill, raising once again the whole discussion about skeleton Bills and the use of SIs.

Skeleton Bills are described, in the report from the Joint Committee on Conventions in 2006, as providing the circumstances in which it would be permissible for the House to divide on fatal Motions—not that that is my intention today. However, if today’s SI had formed part of the primary legislation, there would have been scope for Divisions, although I need to make it clear that I am not complaining. I recognise that the law in this area needs to cover all eventualities.

I want to deal with the detail of the SI and comment on comments made by Mr John Penrose speaking for the Government in the other place on 25 January. He said:

“The petition officer must publish the number of people allowed to sign the petition and the number that must sign for it to be successful. Those figures will be updated when a petition opens, to include any alterations to the electoral register”.

I ask a simple question on principle: should a person who is either too lazy or too indifferent to vote in the general election really be entitled to remove an MP on a petition? This is a quite interesting question. When you look at the stats, if the general election turnout is generally about 60% now—it used to be much higher when I was an MP, but it has gone down over recent years—suggesting an abstention rate as high as 40%, it

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effectively means that if 25% of the abstainers sign the petition in a constituency, effectively they trigger a by-election. I wonder whether that is really the way we want to proceed on this. I accept the principle, but should abstainers have all that power to precipitate a by-election?

Penrose then went on to say,

“the petition officer must make ‘reasonable’ provision for the petition to be available for signing outside those times, which could include evenings and weekends. The regulations do not prescribe what the additional hours must be; they will be determined by local circumstances and covered by Electoral Commission guidance”.

Guidance can be ignored. The local authority decides what happens in the case of a borough where there is an overwhelming single party majority. The local authority could be awkward. It might wish to protect its Member of Parliament for two reasons. One might be political—it is sensitive to the loss of the seat and therefore does not necessarily want to follow the guidelines set by the commission—and secondly, as my noble friend said from the Front Bench, what about the cost? If the cost falls upon the local authority, it may well be that it is not too keen on the prospect of a by-election taking place. Are we absolutely satisfied that we have covered all such eventualities, that is to say, eventualities where local authorities might be a little cautious—I use the term—in the way it wishes to proceed?

I have to admit that a number of my questions might appear pedantic, but this is going to be a very controversial process, perhaps leading to legal proceedings challenging petitions. Every eventuality has to be covered because when Members of Parliament are subject to these petition proceedings and face the prospect of a by-election they will be hiring lawyers and whatever to go through these regulations in great detail to establish whether there is a basis on which they can appeal against the proceedings that are under way.

Penrose goes on to say:

“Unlike at an election, accredited observers will not be allowed to be present at signing locations, or at any stage of the petition process other than the count”.

I stood in a number of general elections over many years. My noble friend raised from the Front Bench the issue of people observing. People observe. People stand outside polling stations. They take numbers. On this occasion, they will not be taking numbers but, as my noble friend suggested, they might be taking photographs. If people are to be assigned a signing location which, as I understand it, is the position under Clause 16, you could have as few as 600 people entitled to sign at a particular station—I keep calling them polling stations, but in fact they may well actually be called polling stations or stations used in general election campaigns. If that is the case, then if they can observe from outside, why can we not observe from inside? What is the distinction? As I understand it, the way that the regulations are drawn up is that unless you are in a particular category—I think it is the Electoral Commission—you cannot enter the signing location. However, you can stand outside or sit in an office over the road and watch who is going in. There seems to be a lack of understanding about what will happen when people go in to sign off their names.

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Penrose then went on to say:

“Accredited observers may be present at the count, along with the representatives of the Electoral Commission”.—[Official Report, Commons, 25/1/16; cols. 3-4.]

Again, my noble friend asked about payment. Who is going to pay even the Electoral Commission observers? Are they going to be paid by the local authority? Are any of these people? We are trying to establish on whom all the costs of this process are going to fall.

What about the issue of people signing twice? Mr Penrose, in his reply to Wayne David in the Commons, stated:

“It should be easier to make sure that people cannot sign twice, in the same way that we do not allow people to vote twice on a polling day. However, the checks and the principle underlying the process—the mechanics—will, of course, still be the same”.—[Official Report, Commons, 26/1/15; col. 7.]

Because the whole process is so controversial, if not the regulations then certainly the guidance from the Electoral Commission should be quite specific on this matter. For MPs affected, every petition signing will count, particularly if they are on the margin.

Paragraph 57(5) of the regulation states:

“A person is not entitled to sign any one petition as proxy on behalf of more than two persons to whom that person is not related”.

The same issue is raised in paragraph 63, which deals with the declaration. My question is simple: what does “related” actually mean—a cousin, a brother-in-law, a civil partner, a sharia-based marriage or an informal partner arrangement? These are the sorts of things that people are going to query, particularly in areas with a large ethnic-minority population.

Paragraph 59 deals with the use of personal identifiers. On that subject, I simply point out that a national identity card would do away with many of these administrative requirements. My next question is one of principle. Why is there a different approach in the conduct of the process in Northern Ireland? Northern Ireland is part of the United Kingdom.

Finally, I turn to paragraph 129, which is headed:

“False statements as to MP or accredited campaigner”.

The paragraph says:

“A person who … during the period beginning with the giving of notice”—

I am deleting words that are not relevant to what I am saying—

“and ending with the last day of the signing period, and … makes or publishes any false statement of fact in relation to the personal character or conduct of a relevant person is guilty of an illegal practice, unless that person can show that they had reasonable grounds for believing, and did believe, the statement to be true”.

The “relevant person” is described later as,

“the MP to whom the petition relates; or … a person who is an accredited campaigner in relation to that petition”.

For a start, who is an accredited campaigner? Secondly, what about a statement made in a local newspaper, particularly during the last days of the petition period? It could be in the form of editorial comment, an article or even a letter to the editor. We know from our experience of tabloid journalism that it is quite easy, without libelling the person, to write an article that completely undermines the credibility and character of a public figure. I oppose censorship and had great

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difficulty in thinking about this section. However, should not the last few days or week of a petition period be the subject of some restraint? A local newspaper could destroy a local MP’s reputation without even libelling them. We need some way of exercising restraint if an MP is to be given a fair hearing. Perhaps Ministers can discuss with the Electoral Commission whether some guidance might be appropriate in these circumstances.

I have raised a number of what might appear at this stage to be minor points. Each and every one of them could be the subject of argument both during and after a petition period. As I have already said, ideally, much of the regulatory detail outlining this SI should have been presented in primary legislation, thereby giving us the opportunity to amend and divide. I therefore hope that the Electoral Commission in its guidance notes will take on board the thrust of my comments, those of my noble friend from the Front Bench and those due from my noble friend who is to speak.

4.45 pm

Lord Lipsey (Lab): My Lords, I am grateful, and I hope the House is grateful, to the noble Baroness, Lady Hayter—I should have said my noble friend because she has been my noble friend for many years now—for putting down this amendment, because it has led us to have a fuller debate this afternoon than we might otherwise have done. She has ably made her points of substance. However, I will go a little wider and consider what this tells us about secondary legislation.

This document, which I just managed to carry from the Vote Office without being forced to my knees by its weight, is an exemplar of how secondary legislation should not be. The fact is that secondary legislation in part is being considered by the committee of the noble Lord, Lord Trefgarne, on the Strathclyde report. Some of the things said this afternoon may be very useful input into the work of that committee.

This is secondary legislation and it has passed through both Houses, so I will not restart a debate on its purpose. I was in error by not participating at that stage. It was of course a delayed reaction to the MPs’ expenses scandal. The Government—and the opposition parties—wanted to show they were doing something about that. However, the Government, and the opposition parties, did not want to open the door very wide. There are countries which use the recall quite widely: in the United States a governor of California was recalled not long ago, and the speaker of one state who recently had the temerity to favour gun control legislation has also been recalled, which might be a warning sign of some of the effects which recall legislation that goes wider can have. In the Andean countries of Latin America, especially in the light of the pink tide that took place there in the 1990s, there are quite a lot of recall elections—Lima is the world capital, having held some 7,000. Incidentally, I am relying for this information on a seminar I chaired at St Antony's College Oxford, at which the noble Lord, Lord Cooper, spoke—which shows that academic seminars can sometime help us. I learned there the nearest thing to an amusing fact about recall elections that I have ever learned, which is that one of their greatest exponents

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was Vladimir Lenin. He was a huge enthusiast. In post-revolutionary Russia there were hundreds of thousands of recall elections, until of course Lenin established himself and his friends in power, when for some strange reason their enthusiasm for the recall ebbed away. Our Government, wisely, did not want to establish a recall on the American or Peruvian scale, let alone on the Leninist scale, therefore we remain a representative democracy.

This legislation could hardly be more limited—the conditions in which it applies are very limited. If an MP is sentenced to more than 12 months in the jug, they are disqualified anyway, so the measure can apply only when the sentence is shorter than that, when they are suspended for more than 10 days by a committee of fellow MPs or when they withhold information on expenses. That is not going to happen very often and in most such cases the MP would, through shame, resign anyway. They could not hang on in those circumstances. Even if those conditions are met, you then have to get 10% of the electorate to sign your petition within six weeks. That 10% of the electorate is probably around one in five of those who voted at the last election, with turnout having been around 60% or slightly less. It is going to be one helluva job to organise that. The noble Lord, Lord Cooper, explained at the seminar how uninterested in politics people generally are. Some were asked, in a focus group, to name one politician and they were able to manage David Cameron. When pressed, they also managed Ed Miliband and his brother, Ed Balls, as the noble Lord reported to the seminar, so there is not a fantastic surge of interest. It could happen but it does not seem very likely.

The House does not need me to tell it that this is going to be a rare event. As my noble friend Lady Donaghy said, the Cabinet Office says so itself in paragraph 10.2 of the Explanatory Memorandum. It says that it is anticipated that recall petitions will occur extremely rarely. If you ask me, extremely rarely probably means never. Be that as it may, this really is a mouse of a proposition—and I am pleased that it is—but, although it is a mouse of a proposition, it has given birth to a mountain of secondary legislation.

I cannot claim to have read all 174 pages of the regulations—I defer in diligence to my noble friend Lady Hayter—but I have poked about in it. As a journalist, I always read documents from the back and usually get to the bit that someone is trying to hide. Regulation 128 deals with illegal canvassing by police officers. Can one imagine? “Mr Plod is going from house to house illegally canvassing. Let’s lock him up as swiftly as we can”. I admire the imagination that puts that into the regulations.

Another regulation bans exit polls. Why it should do that, I am not quite sure, but I can tell your Lordships that nobody is ever going to commission one. No single recall petition could possibly be interesting enough for anybody to commission an exit poll.

Parts of the regulations are wholly incomprehensible. I read Regulation 132, on the prohibition of paid canvassers, about eight times. I may not be the sharpest kid on the block but I still do not have the faintest clue as to what it means. I am reluctant to ask

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the Minister to explain when he winds up because we might then be here into the early hours of the morning, but I am sure that he will take the point.

We rightly deplore the growth of Henry VIII clauses. As I reflect on the legislative situation, there is one thing that has changed hugely since Henry VIII. In his day, the secondary legislation had to be written on parchment. It was a helluva process and, if anybody wanted to change it, it was a helluva process to write it on parchment again. Alas, our legislative procedure has been bugged by the discovery of the word processor. This makes it possible to add, muck about with and expand clauses, thus expanding legislation, with extraordinary facility. It is a case of, “If in doubt, put it in”. That is why the number of pages of secondary legislation has expanded from 4,800-odd in 1970 to 12,000 in the latest year for which figures are available, according to a recent Hansard Society study which was made available to the Campaign for an Effective Second Chamber this week. There is nothing to stop it.

Secondary legislation this may be but it is the law of the land. Citizens can be sent to prison for disobeying the stuff that is before your Lordships this afternoon. Ignorance of the law, as we know, is no excuse, but not necessarily every citizen is going to read the 174 pages of this—I could not even manage it.

Although the Government have made one change in response to representations made to them, neither House has had the opportunity to amend this, and that refers to the point that my noble friends Lady Hayter and Lord Campbell-Savours made: that much of this should have been in primary legislation.

I hope that this afternoon’s narrow debate, and the slightly wider but still narrow debate about the Strathclyde report, will transmute into a much wider debate, which we urgently need, and one that uses one of many ways available to Parliament to look at the whole issue of secondary legislation and of scrutiny in the round. If that happens, this misshapen monster that we have before us this afternoon may, at last, have found a purpose to serve.

Lord Bridges of Headley: My Lords, it has been an excellent debate and I am delighted that we are having it on the Floor of the House. The noble Baroness was extremely gracious in trying to absolve me of responsibility for this misshapen monster, but I will do my very best to try to defend it, warts and all. The noble Lord, Lord Campbell-Savours, described some of his points as pedantic. I do not see them as pedantic at all. That is exactly what we are here to do: to question the details, whatever they might be, in this volume before us. If what I say fails to accurately address some of the points that noble Lords raised, I will certainly write to all those who spoke and place a copy of that letter in the Library. As the noble Lord said, there are some very important points that we need to iron out.

I heed entirely what has been said about secondary legislation, especially something as long as this. The noble Lord, Lord Lipsey, is absolutely right: this is exactly the kind of debate that we need to be having in the weeks ahead. My noble friend Lord Trefgarne is

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here, and I very much hope that he heeds what was said. I will certainly endeavour to draw his attention to those points.

To pick up on a few of the points that were made, the noble Baroness, Lady Hayter, and the noble Lord, Lord Campbell-Savours, asked about people taking photos and intimidating petitioners outside the place. I want to make two points about that. First, petitioners have the opportunity to have a postal vote if they are really concerned about that happening. Secondly, and more to the point, I am told that—it is the same as for elections—anyone intimidating signers would be committing a criminal offence. I will write to the noble Lord and the noble Baroness on precisely where that offence lies.

Lord Campbell-Savours: Is it not the case that, if you can observe from outside, why can you not observe from inside?

Lord Bridges of Headley: I think it comes back to the point that, if there is an accredited observer inside, they may be able to take the names of people who are petitioning and, therefore, those people might feel intimidated. I entirely see the noble Lord’s point, but I gently disagree. Let me come back to noble Lords on where exactly that is in law.

As regards the consultation on this, as I said in my opening remarks, the Electoral Commission has been consulted, as is required by statute. On top of that, consultation has been undertaken with the Association of Electoral Administrators, returning officers, electoral registration officers, the Chief Electoral Officer for Northern Ireland, the Electoral Management Board for Scotland and the electoral management software suppliers. The territorial officers and officials in the Scottish Government have also been consulted on the relevant parts of the legislation. It is not statutorily required for the Government to consult political parties.

A very good point was made about the cost, and I apologise for not mentioning that in my opening remarks. I am told it is expected that a recall petition would cost approximately £100,000. In terms of the payment of that, the Electoral Commission would pay for its own staff and it would not be reimbursed for that. Other payments would be met centrally by the Treasury from the Consolidated Fund. Again, I will write to noble Lords to confirm exactly that point.

5 pm

A couple of noble Lords referred to the issue of whether someone might be able to sign twice. This point was raised in the other place and I remind your Lordships of what was said there by my honourable friend John Penrose. He said: “It is important that the proper processes are followed over the six-week period to ensure that people cannot sign twice. This means that any application made to sign the petition by post during the signing period will have to be checked by the register held at the signing place. If the register has been marked to show that the elector has been issued with a signing sheet at the signing place then the application to sign by post will be refused. If the register shows that a signing sheet has not been issued, then the application will be approved and the register held at the signing place will be marked accordingly.

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The fact that the register held at the signing place is marked when signing sheets are issued prevents attempts at double signing”. I should add that I understand that it is an offence to vote twice.

The noble Baroness asked why there is no date on the signing sheet. The date is marked on the register by the petition officer.

The noble Baroness, Lady Donaghy, asked me to define “infrequently”. As the noble Lord, Lord Lipsey, said, this is covered in the Cabinet Office guidance. It is hoped that this would mean very rarely indeed. However, it is not for me to define what “infrequently” means; that is an issue for Members of Parliament. I say no more than that.

The noble Baroness also asked whether I can give an assurance that the scrutiny powers being used are not mixed. The powers being exercised under these regulations will all be subject to the affirmative procedure and so there is no mixing of procedures.

The noble Lords, Lord Campbell-Savours and Lord Lipsey, made interesting, valid points about whether someone who did not vote in a general election should be able to sign a petition. Should abstainers have this power? That is the current state of the Act. I cannot address the issue now in regard to these regulations, but I heed what has been said.

I will need to read to the noble Lord about is meant by “family relationships”. I am afraid that my understanding, which potentially may not be helpful to him, is that it mirrors the process for elections and is not defined in legislation. I shall write to the noble Lord to define further exactly what that might mean.

The noble Lord also asked about who is the accredited campaigner. There will be two categories of campaigners —accredited and non-accredited. Anyone who wishes to incur expense of more than £500 in relation to petition campaigning must become an accredited campaigner. Those wishing to become accredited campaigners must notify the petition officer and nominate a responsible person to ensure that the spending limits are observed. The campaigner will be entitled to spend up to £10,000. Accredited campaigners must provide details of any donations over £500 to the petition officer. Non-accredited campaigners will be able to spend up to £500 campaigning on the petition without having to make any declaration concerning spending.

I hope your Lordships will forgive me for not addressing the other points now. As I say, I shall certainly write to noble Lords about them.

Lord Campbell-Savours: I am worried about the media destroying the reputation of a Member of Parliament during the last week or so of a campaign. When the Minister writes to us, will he ask his officials to give consideration to this matter? I think it will be an issue when we get the first one. Everyone in the debate has presumed that the first one will be quite involved—and I think we are very near to the first one.

Lord Bridges of Headley: I certainly undertake to do that and to give it some consideration. It is another very valid point.

The noble Lord, Lord Lipsey, asked me to interpret Regulation 132. I will try to do so. It prevents people being paid—in other words, employed—to canvass on

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behalf of either side of the petition. To do so is an offence of illegal employment.

These regulations deliver on the manifesto commitments of the three major parties in the previous Parliament to introduce a system of recall. As I said in my opening remarks, I hope that they will go some way to restore the public’s faith in our elected representatives in Parliament. I commend them to the House.

Baroness Hayter of Kentish Town: My Lords, I thank my noble friends Lord Lipsey, Lady Donaghy and Lord Campbell-Savours. My noble friend Lord Lipsey said that we had known each other a long time; it is actually some 45 years since we started work together. The last point, which my noble friend Lord Campbell-Savours raised, about it being illegal to canvass is very interesting. That means that an MP’s member of staff presumably could not work on behalf of the MP. I had also read and reread that. Presumably it means that no paid official of a party will be able to do it. It would be helpful for the Minister to be absolutely clear in writing that personal staff will not be able even to go around with the MP.

I will be brief because there are only two points I want to leave with the Minister. He has not answered the point about overseas voters. The significance of that is that there is no upper limit on what can be spent on a recall petition. The MP could spend only up to £10,000, but there could be 10 or 20 accredited campaigns working for a recall. Each of those 10 or 20 campaigns could spend up to £10,000. Indeed, there could be 20 or 30 campaigns spending up to £500 without even having to say where their money comes from. There is no upper expenditure on this. If the vote is extended beyond the 15 years to people who have been out of the country, these campaigns could be funded solely from outside the country. I do not expect the Minister to answer on that now because he has obviously chosen not to, but it is something that anyone who wants to keep big money out of politics has to think about.

I also remain worried about intimidation. The Minister said that people can, of course, apply for a postal vote, but that is only if the intimidation starts before the closing day for the postal votes. It is very likely, if people queue up and look at who is going into a signing place, that it would be much closer to the closing date, by which time it would be too late to apply for a postal vote. So the question of noting who goes in remains an issue.

Above all, my noble friend Lady Donaghy has shown the greatest wisdom today in her hope that this never has to happen. That would keep all of us most content—but, as my noble friend Lord Campbell-Savours said, if it happens it will be highly controversial. The way that these regulations have been written, and particularly the fact that they were not voted on either in this House or the other place, is regrettable. I thank the Minister for his time today, and my noble friends for supporting me on this Thursday afternoon. At this stage, I beg leave to withdraw my amendment.

Amendment to the Motion withdrawn.

Motion agreed.

House adjourned at 5.10 pm.