My Lords, I remind the Committee of course of my interests and say what a pleasure it is to follow the noble and gallant Lord, Lord Craig of Radley. He makes a very important point, which is tied to some of the points I am making, about how there has been, at times, an inconsistency in the way that we have dealt with defence matters through a series of different Acts. He made the powerful point that potentially it would help if we were to bring them together into a single Act.
I will speak to the very simple amendment in my name, which seeks to extend the territorial application of the Bill to include the Crown dependencies and overseas territories. In much the same vein as the amendment in the name of the noble and gallant Lord, Lord Craig, this would align the Bill with the Armed Forces Act, which this Bill references throughout. The Bill currently applies to a member of the regular or reserve forces, or a member of a British Overseas Territory force, as defined by Section 369(2) of the Armed Forces Act 2006, but it does not extend to the territories themselves. This creates ambiguity in its application and my amendment seeks to remove this. I am grateful to my noble friend the Minister for writing to me since I tabled this amendment. Her letter, a copy of which she has placed in the Library, addresses some, but not all, of my concerns.
I will take a moment to explain why this inconsistency concerns me. It stems, frankly, from a mistake I made as the Minister responsible for taking the last update of the Armed Forces Act through Parliament in 2016. At the time, I questioned why the territorial extent of the Bill applied to all overseas territories and Crown dependencies with the exception of Gibraltar. I was told that Gibraltar wanted to pass its own mirroring legislation and that officials did not anticipate a problem.
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Gibraltar did not pass mirroring legislation, and just over a year later, in February 2017, the Royal Gibraltar Police arrested three senior military officers at Gibraltar Airport, including the station commander, in a stand-off over jurisdiction while the MoD was attempting to repatriate a member of the Armed Forces who was under investigation. The Royal Gibraltar Police also seized MoD computers. While Gibraltar has now passed legislation, albeit three years later, the reverberations over this very public spat continue to be felt and resented on both sides. This incident would have been avoided had the Armed Forces Act extended to Gibraltar along with other overseas territories.
Therefore, when I see in the letter to me from my noble friend in response to some of my concerns that her officials have written that
“in practice, we consider this situation unlikely to arise”—
words very similar to those said to me five years ago—she will understand why I would urge caution. My noble friend’s letter also says that overseas territories can choose to legislate themselves. Yes, they can, but capacity is at a premium, responsibility for defence is a retained power for the UK Government, and the precedent for this Parliament to legislate on behalf of overseas territories in defence matters is set with the Armed Forces Act. What, for example, is the position with the unique status of the sovereign base areas in Cyprus? Should they at least not be covered by the Bill?
My concern is that new overseas territory forces are being created. We have recently created both the Cayman regiment and the Turks and Caicos regiment, and with good reason, to try to offer greater national resilience and deliver humanitarian assistance and disaster relief in the region. Their establishment has been an undoubted success and I am unashamed in my desire to see members of those forces offered the same protection by the Bill as their UK counterparts.
My noble friend’s letter makes clear that these forces are covered by the Act when serving alongside UK forces. However, what happens when, as is very much the intention, they are not; for example, when they offer mutual support to each other during hurricane season and are not serving alongside UK Armed Forces but another overseas territory force, or indeed if they are offering support to other nations in the region? Why in this situation should they not fall under the proposed provisions of the Bill?
Situations of civil unrest are also covered by the Bill. What would happen if a situation that occurred during Hurricane Irma in 2017 was repeated, when military support was considered—although in the end not used—to support police in controlling looting? If serving alongside UK forces, overseas territory forces would be covered by the Bill, but if serving on their own, they are not. How can that be right?
While very different in nature, albeit due to the same cause over the inconsistency of territorial application, in the press the incident in Gibraltar was blamed on it being a “grey area of the law”. My amendment simply seeks to prevent ambiguity and ensure consistency in the Bill’s application for all members of Her Majesty’s Armed Forces.