Lord Tunnicliffe:

Moved by Lord Tunnicliffe

30: After Clause 12, insert the following new Clause—“Access to legal aid for service personnel in criminal proceedings Within 12 months of this Act coming into force, the Secretary of State shall commission an independent evaluation of access to legal aid for members and former members of the regular and reserve forces and of British overseas territory forces to whom section 369(2) of the Armed Forces Act 2006 (members of British overseas territories' forces serving with UK forces) applies, in relation to criminal legal proceedings in connection with operations of the armed forces outside the British Islands, and lay a copy of the evaluation report before each House of Parliament.”Member’s explanatory statementThis new Clause would require the Government to commission and publish an independent evaluation of service personnel’s access to legal aid in relation to the criminal proceedings covered by the provisions in the Bill.

My Lords, Amendment 30 in my name asks the Government to commission an independent evaluation of access to legal aid for members and former members of the Regular Forces and Reserve Forces and lay a report before Parliament. This important amendment is a result of the evidence given in Committee in the other place, which repeatedly demonstrated the lack of proper support and advice personnel have received when seeking justice.

This evidence was not only from outside contributors. Johnny Mercer himself said that the MoD has a policy whereby,

“where a service person or veteran faces criminal allegations in relation to incidents arising from his or her duty, they may receive full public funding for legal support.”

However, also he said:

“That was not the case when I first came here”.—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 22/10/20; col.351.]

We are a country of fairness, with a legal justice system founded on the right to a fair trial. But I wonder how many men and women have struggled to get the justice they deserve. There have been serious cracks in the system, and people have not got the right support and guidance in accessing the right to due process and a fair hearing.

Major Campbell raised the importance of having access to legal aid and advice and the importance of wider pastoral support, both for dealing with things when they happen and to ensure that cases such as his never happen again. When asked if the MoD had offered him any support when he was facing the eight criminal investigations that he was subjected to, Major Campbell said:

“No, there was none…in the early investigations under the Royal Military Police we were told just not to think about it and to get on with stuff. No concession was given to us in our day-to-day duties.”

A lack of resources and proper guidance risks breaching the Armed Forces covenant and undermines the reputation of our legal system. Does the Minister agree that there was a problem but the current Armed Forces Minister has fixed it? I do not mean to question the Minister’s ability; I seek only clarity as to whether the issue has been resolved.

The Armed Forces Minister also said that government legal services were not being funded but they are now. Can the Minister confirm whether the legal aid system for personnel has mirrored the cuts to the national legal aid system, or is it a system without these financial constraints?

As well as this, Mercer said:

“We … aim to provide legal aid case management and funding for those who are, or were at the time of an alleged incident, subject to service law.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 22/10/20; col. 351.]

There is a big difference between an aim and a guarantee. Can the Minister confirm whether it is an aim or whether the MoD will guarantee to provide legal aid case management?

My Amendment 30 simply seeks to ensure that those personnel or veterans who need to access legal aid can do so, but there is also a serious concern about personnel not receiving the proper pastoral care and mental health and well-being support that they need when required. This is not acceptable—and why we will be supporting the important amendment of the noble Lord, Lord Dannatt, in the following group. I beg to move.

I am speaking in support of my noble friend Lord Tunnicliffe and his amendment. Of course, it would be open to the Minister not just to embrace this amendment but to go further; and not to wait for 12 months, but assure your Lordships that the Government will provide legal advice and support and, if necessary, representation to any member of Her Majesty’s Armed Forces who has need of it as a result of an overseas operation—whether they are an anxious suspect, an anxious defendant, an anxious witness to civil proceedings or, indeed, whether they are suing the MoD. It seems an absolute no-brainer, given speech after speech in both Houses about the anxiety that the interaction between law and war is causing our personnel. Why would the Government bring forward a Bill that causes such controversy and restricts the reach of the law without first giving the assurance that we would all like to hear from the Minister? Can the Government do this? Can the Government honour our existing service personnel and veterans with an automatic right to advice and representation, whenever they have need of it, as a result—from whatever perspectives I have described—of serving the Crown?

My Lords, this is a very important amendment and I support it thoroughly. I should declare to your Lordships that I am still chairman of the Association of Military Court Advocates. Although I am not in receipt of legal aid in respect of any case at the moment, I have received legal aid on many occasions in the past. In my experience, the legal aid authority was excellent, probably ahead of its civil counterparts in supporting counsel and solicitors who were defending servicemen, whether in this country or abroad.

There are particular circumstances that apply in this field which do not apply in ordinary civil practice. First, there are a limited number of military court advocates, mostly people who have some experience of the service. Secondly, the courts are at a distance. Catterick and Bulford—or occasionally Colchester—are at opposite ends of the country. There is also a very experienced military lawyer in Northern Ireland who deals with issues that derive there. In addition to court appearances, it is necessary to give protection to soldiers facing charges and to Air Force and Navy personnel. It is necessary to be in at the beginning, which requires driving long miles to various bases to be present at interviews, to be present when a person is charged and to give advice. There are particular exigencies in this type of practice. Full support from legal aid, which in my experience has been given in the past, is essential for the system to work well. As in every part of the justice system where people are properly represented, a fair result is likely to be arrived at.

My Lords, again I thank the noble Lord, Lord Tunnicliffe, for raising this issue. I have looked at his proposed new clause in Amendment 30, which would indeed require the Government to commission and publish an independent evaluation of legal aid for service personnel and veterans in relation to the criminal legal proceedings covered by the Bill. I repeat the assertion to which the noble Lord himself referred: the MoD has a long-standing policy that, where a serviceperson or veteran faces criminal allegations in relation to incidents arising from his or her duty on operations, the MoD may fund their legal support and provide pastoral support for as long as necessary. We offer this because it is right that we look after our Armed Forces, both in the battlefield, where they face the traditional risk of death or injury, as well as in the courts, particularly if they face the risk of a conviction and a possible prison sentence. Because of the risks our service personnel and veterans face, our legal support offer is very thorough. I will set out some of its provisions.

The legal aid provided by the Armed Forces legal aid scheme provides publicly funded financial assistance for some or all of the costs of legal representation for defendants and appellants who, first, appeal against findings and/or punishment following summary hearings at unit level, including applications for extensions of the appeal period by the Summary Appeal Court, for leave to appeal out of time. Secondly, it covers those who have a case referred to the Director of Service Prosecutions for a decision on whether the charges will result in a prosecution. This includes offences under Schedule 2 to the Armed Forces Act 2006 referred directly to the Director of Service Prosecutions by the service police, as well as matters referred to the Director of Service Prosecutions by the commanding officer. Thirdly, it covers those who are to be tried in the court martial of the Service Civilian Court; fourthly, those who wish to appeal in the court martial against the finding and/or sentence after trial in the Service Civilian Court; and, fifthly, those to be tried in a criminal court outside the UK.

If I have not responded to all the questions asked by the noble Lord, I apologise, and I shall look at Hansard and attempt to respond further. I will explain that the legal aid scheme applies equally to all members of the Armed Forces, including the Reserve Forces when they are subject to service law, as well as to civilians who are or were subject to service discipline at the time of an alleged incident. Importantly, this system is based upon the same basic principles as the civilian criminal legal aid scheme in England and Wales. The Armed Forces scheme is designed to mirror the civilian scheme while making necessary adjustments to take into account the specific circumstances and needs of defendants and appellants in the service justice system.

As a result of that system, I am confident we already ensure service personnel and veterans are properly supported when they are affected by criminal legal proceedings. A review of legal aid, as proposed by the amendment, is unnecessary, given how comprehensive our legal support package is. In these circumstances, I urge the noble Lord, Lord Tunnicliffe, to withdraw his amendment.

My Lords, I thank my noble friend Lady Chakrabarti and the noble Lord, Lord Thomas of Gresford, for their support in this area. Turning to the speech by the noble Baroness, Lady Goldie, which I shall read with care, it seems we are not grasping the circumstances of this Bill. The situation is about overseas operations and the problems of defending oneself against criminal action in some overseas theatre—vastly more difficult than in the parallel civilian situation in the UK. I note she said the support “may” be provided. The Minister may mean “always”, but for servicemen that word sounds like “perhaps,” like some or all of the necessary support only “may” be provided.

We should think back to who we are talking about. Service personnel are different from ordinary citizens. I was involved, when Labour was in power, with drawing up the first statutes to cover slavery. When we had got over the shock that we had to try and define slavery, we suddenly realised that we had to have some exceptions. One of them was the Armed Forces, because we expect absolute loyalty from our Armed Forces, including to the point of dying. That is a very special loyalty. Surely, when they are caught up in difficult situations, there should be almost absolute support in defence of them to make sure, in all the subsequent legal action and the necessary support—which will be coming in the next group—that they lack for nothing, ensuring both that they are pastorally supported and that there is sufficient legal support for there to be a genuine equality of arms.

I will look at the noble Baroness’s response with care and listen to her response to the next group. In the meantime, I beg leave to withdraw the amendment.

Amendment 30 withdrawn.

We now come to the group consisting of Amendment 31. Anyone wishing to press this amendment to a Division must make that clear in debate.