Lord Dannatt:

Moved by Lord Dannatt

31: After Clause 12, insert the following new Clause—“Duty of care to service personnel(1) The Secretary of State must establish a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations, as defined in subsection (6) of section 1.(2) The Secretary of State must lay a copy of this standard before Parliament within six months of the date on which this Act is passed.(3) The Secretary of State must thereafter in each calendar year—(a) prepare a duty of care report, and(b) lay a copy of the report before Parliament.(4) The duty of care report is a report about the continuous process of review and improvement to meet the duty of care standard established in subsection (1), in particular in relation to incidents arising from overseas operations of—(a) litigation and investigations brought against service personnel for allegations of criminal misconduct and wrongdoing;(b) civil litigation brought by service personnel against the Ministry of Defence for negligence and personal injury;(c) judicial reviews and inquiries into allegations of misconduct by service personnel;(d) such other related fields as the Secretary of State may determine.(5) In preparing a duty of care report the Secretary of State must have regard to, and publish relevant data in relation to (in respect of overseas operations)—(a) the adequacy of legal, welfare and mental health support services provided to service personnel who are accused of crimes;(b) complaints made by service personnel or their legal representation when in the process of bringing or attempting to bring civil claims against the Ministry of Defence for negligence and personal injury; (c) complaints made by service personnel or their legal representation when in the process of investigation or litigation for an accusation of misconduct;(d) meeting national standards of care and safeguarding for families of service personnel, where relevant.(6) In subsection (1) “service personnel” means—(a) members of the regular forces and the reserve forces;(b) members of British overseas territory forces who are subject to service law;(c) former members of any of Her Majesty's forces who are ordinarily resident in the United Kingdom; and(d) where relevant, family members of any person meeting the definition within paragraph (a), (b) or (c).(7) In subsection (1) “duty of care” means both the legal and moral obligation of the Ministry of Defence to ensure the wellbeing of service personnel.(8) None of the provisions of this section may be used to alter the principle of combat immunity.”Member’s explanatory statementThis new Clause will require the Ministry of Defence to identify a new duty of care to create a new standard for policy, services and training in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigations arising from overseas operations, and to report annually on their application of this standard.

My Lords, in seeking to move Amendment 31, I pay tribute to the tireless and detailed way in which the Minister and the noble and learned Lord, Lord Stewart of Dirleton, have been responding to the extensive and detailed sequence of amendments to this Bill in the last two days in Committee.

That the list of proposed amendments is so lengthy indicates a considerable degree of concern about the Bill as drafted, but my concern does not extend as far as the concerns of those who would wish to see this Bill thrown out completely. Many noble Lords, myself among them, have been arguing for some years to have a Bill introduced that would provide better protection for serving and veteran soldiers, sailors, airmen and marines from vexatious, extensive and recurrent investigations arising from their actions in past operations. This Bill seeks to meet that aim, so I do not want to see it fail, but I do want to see it meet that honourable objective more effectively.

Amendment 31 sets out to do this by seeking to require that the Ministry of Defence identifies a new duty of care as described in the explanatory statement to this amendment. I raised this aspiration in my speech on Second Reading in your Lordships’ House on 20 January. I believe a clearly stated duty of care has important benefits not only for individual service people, be they serving or veteran, but for the Ministry of Defence itself. If the MoD wants to see this Bill through to Royal Assent, the opportunity Amendment 31 provides is to state in clear and unequivocal terms how it will support better the individual service man or woman. Here is the opportunity to spell out what support will be given to a serviceperson under investigation. How often can they be questioned and over what time period? What legal, pastoral and mental health assistance should be afforded a person under investigation? How should a person under investigation be regarded by the chain of command? These questions and many more can be addressed in a comprehensive statement of the duty of care. Moreover, the amendment would require the Secretary of State, in each calendar year, to prepare a duty of care report and lay a copy of that report before Parliament.

With the greatest respect to the Minister, I have heard the argument made in challenge of some other amendments, that things have changed for the better in recent years. In some areas, that may be so, but not in this area. Were that so, the treatment of Major Bob Campbell would not have dragged on from 2003 until last year. I have raised his case, which the noble Lord, Lord Tunnicliffe, has just referred to, in your Lordships’ House on more than one occasion. He and his two colleagues are broken men. When asked whether the MoD had offered any support when he was facing the eight criminal investigations that he was subjected to, Major Campbell said:

“No, there was none … we were told just not to think about it and to get on with stuff.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 6/10/20; col. 24.]

That is just not good enough, and the MoD must accept that.

It is not just concerned members of this House who want to see change. General Sir Nick Parker, a former Commander in Chief Land Command, has said:

“one of the key things that we have to do is to produce mechanisms that establish a really effective duty of care for those who are placed under the spotlight by malicious claims. Of course, if you deal with these things quickly, that will help, but anything that drags out, even for two or three years, puts individuals under massive pressure. If the chain of command does not have the ability to look after them, because it somehow distances itself from them, then we have got to address that as well.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 96.]

This amendment will address those issues.

Time is short, and other noble Lords wish to speak to this amendment, but I will make one further point; again, it is one I raised on Second Reading. It relates to the sensible presumption against prosecution set out in Part 1 of the Bill, which, if understood correctly, is intrinsically related to this issue of duty of care. It has been argued that this presumption against prosecution is not needed because there are very few prosecutions. But that is not the point. The point is that there have been an outrageous number of allegations and investigations that have proved to be groundless, resulting, quite properly, in very few prosecutions. It is well recorded that a virtual industry to pillory British soldiers was set up following the unpopular intervention in Iraq in 2003. As the present Secretary of State for Defence has said, for example:

“In 2004, Phil Shiner, a lawyer, went fishing. He fished for stories, he fished for victims and he fished for terrorists.”—[Official Report, Commons, 23/9/20; col. 984.]

A carefully thought through and properly worded statement of the duty of care would prevent such outrageous behaviour.

I have a final word on this understanding of a presumption not to prosecute. It will help investigators and possible victims to get to the truth, because soldiers will know that they can answer questions designed to establish the facts of the matter without fearing that the questioning will inexorably lead to a prosecution. Of course, if there is new and compelling evidence against someone, that is a different matter—but most investigations merely set out to establish the facts of an incident. That is a right and proper process, which in the majority of cases should be conducted free from the shadow of prosecution. I beg to move.

My Lords, it is a real privilege to follow the noble and gallant Lord, Lord Dannatt, whom I greatly respect. He has raised some of the issues that we have been discussing over the last two days. I have made my views well known on those aspects, and I do not propose to challenge what he has just said. He is absolutely right in requiring there to be a duty of care set out in statute—a touchstone whereby the ways in which service personnel are dealt with can be tested.

In our own way, those who have practised in courts martial have seen the sort of improvements to which the noble and gallant Lord referred. I recall that, at the first court martial that I went to, there was a lot of swishing of swords—swords pointed at the guilty man when the decision was announced, and so on. Also, I think I played some part in the abolition of the process whereby an accused in a Navy court martial was marched into the court with a cutlass at his back. I put down a Question questioning that particular practice and, when I got up to hear the Answer from the noble Lord, Lord Bach, he announced that the practice had been abolished. But that is only symbolic of the very considerable changes that have taken place in the court martial system, which I believe have brought greater fairness and fewer problems of what one might call “shock and awe”—of a soldier going in to stand trial before a court martial of senior officers. In that way, we have sought I think to modernise the old court martial system, and we have been successful in that. If that sort of movement could be applied generally and not just in the very narrow area to which I have referred, it would be a very good thing. I wholly support the noble and gallant Lord in his amendment.

My Lords, I speak in support of this amendment, to which I have attached my name. In doing so, I convey the apologies of my noble and gallant friend Lord Boyce, whose name is also on the amendment but who is prevented by a medical issue from speaking this afternoon.

To explain why my noble and gallant friend and I support the amendment, it is necessary for me to go back to the very purpose of the Bill. It is in the Minister’s own words to reassure service personnel and veterans that the Government have their back and that they will be offered a degree of protection from the pressures and strains of malicious prosecutions. But the Government know that prosecutions are not the issue; that much has been widely acknowledged during debates on the Bill to this point. It is the seemingly endless cycle of accusations and investigations that is casting such a shadow over our service personnel and veterans, not the prospect of being brought to trial.

It is a principle of our legal system that an accused person is innocent until proved guilty—but this is true only in a narrow legal sense. It simply means that the burden of proof lies with the accuser, not the defender; it does not mean that an accused person is treated as innocent. For example, they may be held in detention. They are certainly subject to the wondering if not outright suspicion of observers, and they certainly suffer the agonies of uncertainty and the mortification of being suspected of and, in the minds of some, guilty of a criminal offence. The strain on them and their families is immense. Can anyone doubt the anguish that assailed those accused as a result of Operation Midland, despite the fact that not only were there no prosecutions but their accuser was shown to be lying? Can anyone deny that they suffered acutely—and in some cases still do?

Accusations must certainly be investigated, but such investigations will bring pain to guilty and innocent alike. How much more is this the case when the investigations are repeated and protracted? That is the evil that this Bill should address. The Government’s view seems to be that it is not possible to legislate on investigations since that would almost certainly increase the risk of UK service personnel and veterans coming under the scrutiny of the International Criminal Court. They have therefore taken an indirect approach to the problem, in the hope that codifying the factors that must be considered by a prosecutor will discourage speculative and malicious accusations. Of course, this is a wholly untested thesis; it may work to an extent, but equally it may have little impact.

For my part, I believe that the Government have by their own lights set themselves an impossible task in this Bill. They have recognised that they cannot address the real problem directly, so has come at it obliquely with a proposition that will have dubious benefits and poses real presentational risks—risks that could harm the reputation of our Armed Forces. Meanwhile, the underlying issue remains: the pressure of investigations. If that cannot be addressed legislatively, it is surely incumbent on the Government to ensure that those accused are supported appropriately during their ordeal—hence this amendment.

If we cannot entirely prevent the suffering, at least let us do all that we can to ameliorate it. The Government may say that they do so already, and there is no need to legislate on the matter, but I would find such a view puzzling. The Government have accepted that prosecutors already take into account the considerations set out in the Bill, but they regard their codification in law as necessary for the reassurance of our military personnel. If they take that view on something that they admit is not the real problem, how can they take a contrary view on something that is? That would seem to me to be an extraordinary contradiction.

The many amendments proposed to this Bill so far have sought largely to ameliorate the harmful effects that it might have. This amendment, on the other hand, seeks to tackle as far as possible the root of the problem that the Bill is intended to address, and I commend it to the Government.

My Lords, what a privilege to have heard, let alone to follow, the speech of the noble and gallant Lord, Lord Stirrup, so much of which I completely agreed with. One thing I would say is that, while legislators are limited in what they can do in this regard—and he and his noble friends have had a very good go at using a probing amendment to try to get the Government to stand by veterans and service personnel in real terms—the Government can actually do more.

They could do more even now to address the problem of investigations. Of course, they could not do so by legislation alone, but they could throw resources at it and redesign the nature of investigations, and they could include the noble and gallant Lord and his colleagues, among others, in creating a new investigation system that would inspire the confidence of the public at large, of wretched human rights lawyers like me and, crucially, of veterans and personnel. They could do what we have said in recent days is essential, which is to ensure that investigations are robust, independent and speedy, and not repeated. That could do a great deal to avoid the kind of anxiety that we have heard so much about in consideration of this Bill.

That is not something that any mere legislators can do, so we have to probe in this way and table amendments, such as the previous one from my noble friend Lord Tunnicliffe about laying reports, and this more extensive one from the noble Lord, Lord Dannatt, the noble and gallant Lords, Lord Stirrup and Lord Boyce, and my noble friend. These amendments are, of course, necessarily limited by the scope of the Bill. I therefore understand why, for example, the noble Lord could not include in the duty of care to service personnel chronic issues of housing and of mental health problems beyond just those caused by litigation.

If the noble Lord is to return with a further amendment of this kind on Report, subject of course to the response from the Minister, he might add some provision in the duty of care for those veterans who have claims against the MoD. The focus of this amendment is, understandably, on the anxieties of those who are subject to suspicion and accusation through these lengthy investigations. I do so agree with his wider point about our society, in which the presumption of innocence as a societal concept has been chipped away at for so long. We now live in a world, exaggerated by the internet, for example, of “no smoke without fire”, which is very far indeed from the principle of the presumption of innocence. I wonder whether there is room in the noble Lord’s duty of care and duty of care report to think about veterans who are victims and who are struggling to get access to legal advice and representation in their claims against the MoD. Aside from that, I fully stand with the noble Lord and look forward to the Minister’s reply.

My Lords, I draw attention to my entries in the register of interests. I had the honour to serve in the Royal Marines, during which time I served on overseas operations. I support the thrust of this proposed new clause and congratulate and thank the noble Lord, Lord Dannatt, and others for tabling it.

The new clause would provide for the establishment of

“a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations”.

It also provides for an annual report on the duty of care to be laid before Parliament. This is a satisfactory solution to some of the matters I raised at Second Reading, when I stated that

“when charges such as these are contemplated, no expense should be spared in mentoring and assisting a defendant, who will need an experienced individual to guide him through the maze of criminal law and procedure. The defendant should have access to the very best legal team available and be able to access medical assistance to engage with the effect of the stress of operations, including being in mortal danger most of the time, and often in searing heat. This should all be at public expense.”

As soon as an individual comes under investigation, it appears that his colleagues are forbidden to contact him and he starts to feel isolated and abandoned. The defendant should have someone of experience from his own corps, regiment or service as a supporter he can rely upon. That supporter should be properly trained, independent and have access to the defendant at all times. As I said at Second Reading, the defendant will need the best legal team available. The Bar Council and the Law Society should be asked to co-operate with the Ministry of Defence in providing a list of suitably qualified and experienced barristers and solicitors, with their curricula vitae, to assist the defendant in his decision on who is going to represent him. The Ministry of Defence should liaise with the appropriate professional body to provide a list of experienced mental health professionals. These are just some of the steps that should be taken; others have been outlined by the noble Lord, Lord Dannatt, and other speakers. There will be more.

The Committee should bear in mind that these matters of culpability and responsibility are riven with difficulty. Soldiers engage in warfare not only for their country but for their comrades. They fight for their comrades and their comrades fight for them, often in the most appalling and hazardous conditions. Matters such as provocation should be gone into in great detail. We rightly respect, and have to comply with, the laws and conventions of war. Regrettably, some of our enemies do not. It would serve no useful purpose for me to give examples of some of the terrible atrocities that our troops have had to suffer. Suffice to say that the bonds between comrades forged by and in war are immensely strong.

Provocation is not the only factor to be borne in mind when determining culpability and responsibility. An individual’s state of mind will change when he is deployed on operation. He will have to be alert at all conscious times. He is in mortal danger most of the time and sleep is light and constantly disturbed. Sleep deprivation is one of the most mentally and physically debilitating conditions. The individual knows that he must keep going at all costs—he owes it to his comrades, and they owe it to him. The foregoing is the reason why I stated, at Second Reading, that I believed that

“there should be a duty on the Judge Advocate-General to bring the possibility of battle fatigue and diminished responsibility to the attention of the panel.” —[Official Report, 20/1/21; col. 1191.]

I look forward to hearing from the Minister in response to this debate, and in relation to matters I raised at Second Reading when I outlined changes that should be made to the system of courts martial. I appreciate that, on the latter matter, I will have to wait for a letter.

My Lords, I am very grateful for the opportunity to take part in this important debate. I thank the noble Lord, Lord Dannatt, and others for bringing forward Amendment 31 which would require the Government to

“establish a duty of care standard in relation to … support provided to service personnel”.

I believe that one of the most important duties of the state is to ensure that we do everything in our power to provide for the welfare and well-being of those who serve us all in the military and those who have served us in the past. That obligation also extends, of course, to their families. The recent move to give much greater statutory standing to the Armed Forces covenant, across the whole of the United Kingdom, is very welcome in that respect.

The amendment would create specific duties on the Government in relation to service personnel caught up in investigations and litigation on overseas operations. I have had the opportunity in recent times, in my capacity as a Member of Parliament, to meet with some of the ex-service men and women who have been involved in this type of case. Some of them spoke to me in the context of Operation Banner in Northern Ireland. This Bill clearly does not extend to that operation or to Northern Ireland and some of the issues relating to that were explored at Second Reading. We obviously listened carefully to the Minister’s comments during the passage of the Bill through this House and the other place and we look forward to legislation covering Northern Ireland very soon. I hope that the Minister can confirm that again today.

The experiences and feelings of the veterans that I spoke to in the context of Northern Ireland will mirror in many respects the concerns and anxieties of those who will be subject to investigation and litigation in respect of theatres overseas. It is the long process of investigation which causes most problems—a point that has been made by other noble Lords. Very often, those being investigated are elderly. The knock on the door, or the fear of the knock on the door, after many years out of service can be extremely upsetting and difficult to cope with. One spoke to me about his feelings of being very much alone, abandoned to his fate with no one to turn to, no one to whom he could really express his feelings or from whom he could seek sound advice. Those being investigated are suddenly plunged into a legal nightmare, with the potential for years of long, drawn out legal process.

I very much welcome the fact that the amendment talks about the duty of care standard in relation to legal as well as pastoral and mental health support. This is an extremely important aspect given the complexity of these cases and the passage of time. I also welcome the fact that the amendment covers civil as well as criminal claims and, for that matter, proceedings to do with judicial review. It is important that all these aspects are covered. There is a feeling that things are being looked at now with the benefit of hindsight and with the application of standards which were not applicable at the time.

There are often big financial implications. One person I spoke to cited a total lack of resources or capacity, compounded by ill-health, exacerbating the enormous stress and strain that had been inflicted on them and their family. One man who was undergoing very serious medical treatment was finding the financial as well as the medical implications very hard to bear. People feel extremely frustrated. There is understandable anger at the fact that they are being picked out or targeted in some way while, certainly in the case of Northern Ireland, many of those political voices championing prosecutions and investigations were themselves some of the biggest supporters of the abuse of human rights by terrorists and do not want any investigation into their nefarious activities.

Finally, the fact that the amendment covers the family of ex-servicemen and women and serving members of the military is also important. The families are vital and often feel the same level of stress and strain when such investigations are launched. I wish the amendment well and it has my full support.

My Lords, I have considerable sympathy with what lies behind the amendment moved by the noble Lord, Lord Dannatt, and supported by the noble and gallant Lord, Lord Stirrup. I cannot help thinking that it is a great pity that it was felt necessary to table the amendment at all. The reason for it, however, is the way in which we as parliamentarians and the law generally have let the military down; that is, after all, what this legislation as a whole is about. For there to be an obligation to state a duty of care standard of the sort envisaged by the amendment is a woeful acknowledgement of that. I do not think there is any equivalent in relation to our duty towards the fire brigade, the police or the NHS. Things have come to a pretty poor pass where we as a House can find so much to sympathise with in this amendment.

However, a statement to the House about the duty of care and how the standard of that duty should be reflected can do no more than state what the law is. As the noble Lord, Lord Dodds, just pointed out, there are specific provisions to deal with litigation and investigation, civil as well as criminal, and judicial reviews. But all a statement would do was say what the state of the law was. Depending on the passage of this Bill, there may be some, little or no change to the existing state of the law. What has repeatedly come through our debates is what lies behind so much of the understandable discontent: these repeated and late investigations.

Although the Bill is divided between criminal prosecutions and civil actions, the reality is that there is a blurring of the two, because the investigative duty arising from the Human Rights Act—there is no general duty to investigate in connection with a cause of action—is what precipitated many of the investigations, such as IHAT, where there were vexatious claims and even preliminary investigations leading to potential prosecutions. So it is not quite as divided as it might be. Whatever statement came before the House, it could say only, “Since there is an obligation in overseas territories to comply with the convention, if an allegation is made against a service person, there may well be an obligation to investigate”. That is what the Human Rights Act jurisprudence suggests. That means all the problems with investigations that have been encountered will continue, and it will continue to be the case even if the Bill is passed.

Where, unusually, I entirely agree with the noble Baroness, Lady Chakrabarti, is that I think something can be done about investigations, which is that the Ministry of Defence and those responsible for investigations can be better equipped and prepared for them. IHAT was such a failure because those charged with investigation were underequipped and had little knowledge of the theatre, the language, the culture or anything of that sort. If there are to be repeated investigations, they should be much speedier and better done.

So I am very sympathetic to the amendment but wonder how much it will actually achieve. Before I conclude, I refer to just one particular aspect of it, which concerns the principle of combat immunity. The Ministry of Defence has been asked a number of times to clarify its position on combat immunity. It used to be a common law concept. Quite understandably, the courts decided that they were unable to decide whether, in the heat of battle, A had been disproportionate in his or her response to B’s activities—that this was a field which was really not justiciable. However, following the decision in Smith v the Ministry of Defence, referred to earlier by the noble and learned Lord, Lord Hope, there is some doubt about the question of combat immunity, and the case was, by a majority, not struck out. The case arose out of claims of damage in respect of Snatch Land Rovers, but presumably it would acquire to in any allegation of inadequate equipment provided to our forces.

I ask the Minister to tell the Committee precisely what the Government’s position is on combat immunity. Of course, if this amendment is successful, the Government will have to do so in any event. I am very sympathetic to the amendment; I am sorry that it is necessary, and I repeat my observation that the reason it is necessary is that we as Parliament and the judges, I am afraid, have failed the military.

My Lords, like other noble Lords—and noble and gallant Lords—across the Chamber, I welcome the amendment, even if, like the noble Lord, Lord Faulks, I regret that it is necessary. As the noble and gallant Lord, Lord Stirrup, pointed out, it is in many ways necessary to try to deliver what the Minister said the Bill was intended to do, which is to demonstrate to all our service men and women, and veterans, that the MoD and the Government have their backs. The amendment seems to be delivering on the stated aims of the Bill in a way that much of the content of the Bill does not quite seem to do.

Perhaps I have misread the amendment and the noble Lord, Lord Faulks, has read it perfectly, but my reading of it is a little different from his. The first point is:

“The Secretary of State must establish a duty of care standard”.

It does not say, “The only purpose of this amendment is to write a report”; the report comes later. The really crucial thing is that the Secretary of State is to establish the “duty of care”; the annual reports are then supposed to look at certain things, but it is the duty of care itself that matters.

So the amendment does not say, “There’s got to be a report every year”—which, I agree, might look a bit like window-dressing. This really gives the opportunity for the Secretary of State—hopefully with advice from the leading members of the military and taking into consideration the evidence from the many organisations that have been lobbying the Government and Parliament over this Bill—to begin to ensure that we have an appropriate duty of care and that support is given to service men and women under investigation. As my noble friend Lord Burnett said in his powerful speech, there is a whole set of issues that might affect people acting overseas on operations that would not necessarily be the case when people are in normal circumstances.

So this is an important amendment. I very much hope that the Minister will be able, for once, to consider supporting an amendment. If she cannot, I hope that she can look for ways of delivering in the Bill the sort of support for our service men and women that is the intention of this amendment.

My Lords, we stand four-square behind our troops and, therefore, four-square behind Amendment 31. We want to work with government and colleagues from across the House to get this legislation right. Our country owes a huge debt to our service personnel, yet many have not got the pastoral, mental and well-being support that they require when it is most needed.

Troops and their families who have been through the trauma of these long-running investigations have too often felt cut adrift from their chain of command and the Ministry of Defence. As the noble Lord, Lord Dannatt, said, this gap was clearly identified by multiple people in Committee in the other place, but it has not been identified in the Bill.

When asked if the MoD had offered any support when he was facing eight criminal charges, Major Campbell said: “No, there was none”. General Sir Nick Parker said that

“one of the key things that we have to do is to produce mechanisms that establish a really effective duty of care for those who are placed under the spotlight by malicious claims.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 96.]

He stated that, as drafted, the Bill does not do this.

When asked if the MoD does enough to provide a duty of care to those service personnel who go through investigations and litigations, BAFF executive council member Douglas Young said:

“In our opinion, the answer is no ... we are simply appalled by the experiences of some people who have absolutely been through the wringer for many years.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 6/10/20; col. 5.]

Lieutenant Colonel Chris Parker said that there was certainly a need for

“a broad duty of care with some resourcing for the impact on families and the individuals themselves … It is something that the MoD would have to bring in.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 108.]

The MoD has let down too many personnel with a lack of pastoral, mental health and legal support when they face investigations and pursue rightful compensation. For every member of the Armed Forces who does not receive the proper support and advice during an investigation or litigation, it is not only sad but a failure of the MoD’s responsibility to its employees. We cannot deny that the MoD has lost trust among our brave service personnel, and a statutory duty of care, with regular reporting to Parliament, is a key step in rebuilding that trust. Only then will personnel have the confidence that the MoD will be on their side and support them through the difficulties and stress of an investigation or litigation.

We owe it to our excellent Armed Forces to do better. The MoD owes it to them to provide a statutory duty of care standard for legal, pastoral and mental health support, and that is why we strongly support this amendment.

My Lords, this has been an important debate, and I want to thank the noble Lord, Lord Dannatt, for his careful presentation of his amendment, which covers a very important issue. I also thank him for his supportive commentary on the Bill.

Amendment 31 proposes that the Ministry of Defence should establish a “duty of care standard” for current and former service personnel and, where appropriate, their families, and that the Secretary of State should be required to report on this annually. I have looked at the specific components of the amendment, and I hope that I may be able to provide some reassurance to the noble Lord and those other noble Lords who raised genuine concerns.

I start by saying that we take extremely seriously our duty of care; the noble Baroness, Lady Smith of Newnham, rightly identified that important component of how the MoD deals with its personnel. We do take it extremely seriously; we have a duty of care to our personnel, and pastoral and practical support will always be available to them. In particular, veterans of events that happened a long time ago may have particular support requirements and concerns, in which case we can put in place special arrangements for them.

The noble and gallant Lord, Lord Stirrup, spoke eloquently about the effect on personnel of repeated investigations and accusations, as did the noble Lord, Lord Dodds of Duncairn, my noble friend Lord Faulks and, just recently, the noble Lord, Lord Tunnicliffe. We have a responsibility to take reasonable care to ensure the safety and well-being of our personnel.

I covered the comprehensive legal support that we already provide to service personnel and veterans in relation to legal proceedings during our previous debate, so I will not repeat them here. I noted that the noble Lord, Lord Burnett, was rightly concerned about such provision, but I trust that, if he looks at the remarks that I made in the earlier debate, he may feel reassured.

In terms of mental health, welfare and pastoral care, a range of organisations are involved in fulfilling the needs of personnel, which will vary according to individual need and circumstance. The potential impact of operations on a serviceperson’s mental health is well recognised; the noble Lord, Lord Burnett, spoke powerfully about that. There are policies and procedures in place to help manage and mitigate these impacts as far as possible.

Despite the clear processes for categorising personnel as medically suitable for deployment, it is recognised that an operational deployment can result in the development of a medical or psychiatric condition. Therefore, specific policy and mandated processes exist for the management of mental health and well-being before, during and after deployment. These provide overarching direction on the provision of deployment-related mental health and well-being, with briefings designed to provide enough information about deployment-related mental ill-health to allow individuals, peers and family members to take steps to avoid such an outcome, to recognise the early signs of mental ill-health and to facilitate help-seeking from the right source at the right time.

We also regularly seek opinions from Armed Forces personnel and their families about the level of support. It is important to refer to that, because the MoD is not operating in some kind of vacuum; we actually have very good communication strands with our Armed Forces personnel, and I will cover a number of them. The Armed Forces continuous attitude survey—AFCAS—is an annual survey of a random sample of service personnel. The 2021 survey was conducted from September 2020 to February of this year, and the results are due to be published in May. There are no specific questions relating to legal proceedings, but questions related to welfare support are asked.

Within the welfare section of the survey, questions are asked on satisfaction with the welfare support provided by the service for both the serviceperson and their family, as well as the support that the serviceperson’s spouse or partner receives while the serviceperson is absent. Questions are also asked about operational deployment welfare package for service personnel.

Questions on satisfaction levels with the variety of welfare support systems in place are also asked, with the list unique to each service—for example, families federations, welfare teams, officers, community support teams, et cetera. Further questions within the deployment section ask for satisfaction levels with welfare support received by both service personnel and their families when the serviceperson returns from their last operational deployment. We also have the annual families continuous attitudes survey—FAMCAS—for the spouses and civil partners of service personnel. It is in field from January to April and the 2021 report is scheduled for release in July. Again, there are no specific questions on legal support.

Another avenue is available to all MoD personnel, whether Armed Forces or civilian: the regular all-staff dial-ins. Some of your Lordships may be unfamiliar with this; I must confess that, until I became a Minister, I had not heard of them. Having now participated in a couple of these, I have to say that they are an incredibly popular forum. They attract participants from the Armed Forces and the civilian staff, and the contributors are uninhibited in expressing their views and concerns. I think that over 3,000 participants were on my last call. That is another way of quickly getting feedback on how morale is and what people are feeling.

It is not just serving members of the Armed Forces who require and receive such support. As I have mentioned, our veterans also get such support. Veterans UK is the official provider of welfare services and support to former service personnel throughout the UK. It will often act in partnership with service charities or other third-sector organisations towards which veterans are directed—for example, the Royal British Legion, Combat Stress and SSAFA, which is the Soldiers’, Sailors’ and Airmen’s Families Association.

Very often, the regimental association of a veteran’s parent regiment will be the most familiar and accessible link through which the individual can maintain a link to the military hierarchy, which allows any issues of concern to be raised with the Army chain of command or the MoD outside of legal channels. This is often the most relied on and effective means of providing pastoral support. Of course, veterans can also access help and support 24/7 via the Veterans’ Gateway, which has been a very important innovation.

In addition, we fund charities and organisations through the Armed Forces Covenant Trust. Examples include the Veterans’ Mental Health and Wellbeing Fund, the One is Too Many programme, which has been awarded grants of up to £300,000, the Tackling Serious Stress in Veterans, Carers and Families programme and the Ex-Forces in the Criminal Justice System programme.

I am happy to reassure your Lordships that, in the context of many of the areas listed in the amendment of the noble Lord, Lord Dannatt, we already publish the comprehensive annual report on the Armed Forces covenant—the Armed Forces Bill currently progressing through the other place is giving statutory import to the Armed Forces covenant. I am grateful to the noble Lord, Lord Dodds of Duncairn, for reminding the House of that. I reassure him in relation to his further question that the legacy issues of Northern Ireland are being addressed by the Northern Ireland Office and progress will be reported on as soon as possible. In relation to service complaints, there is a well-established process through which service personnel can make complaints. The Service Complaints Ombudsman reports annually to Parliament on this.

These are all well-established policies and processes and, of course, we continually review them to ensure that they provide the best support and care possible for our personnel. I hope that the detail that I have provided has reassured your Lordships about the way in which the MoD both acknowledges and specifically addresses our duty of care and provides an environment for personnel to express and raise concerns. We are clear on our responsibilities to provide the right support to our personnel, both serving and veterans, and to seek to improve and build on this wherever necessary. I do not believe, therefore, that setting a standard for duty of care in the Bill is necessary, nor does it require an annual report to Parliament. I therefore urge the noble Lord to withdraw his amendment.

My Lords, I thank all noble Lords and noble and gallant Lords who have taken part in this debate for their helpful contributions. At the heart of Amendment 31 is a simple issue: to get back to the original purpose of the overseas operations Bill, which is to better protect our servicepeople against a recurrent, extensive and vexatious series of investigations. The intent behind the amendment to ask the Secretary of State to lay down a duty of care is to answer some of the questions that I put in my opening speech. How many times is it reasonable for someone to be investigated and over what period? What should the attitude of the chain of command be?

I am grateful to the noble Baroness, Lady Goldie, for her response to the debate but, with the greatest respect to her, its principal part was to list the wider welfare provision for the Armed Forces provided by the Ministry of Defence and service charities. I know all that; I was head of my service through difficult times. With Bryn Parry, I co-founded Help for Heroes. I know what we are trying to do but, with the greatest respect, that part of the speech of the noble Baroness, whom I admire enormously, misses the point behind this amendment, which is simply to lay down a duty of care to bring to an end these recurrent, vexatious and almost unending—in Major Campbell’s case, there were eight—investigations.

I am grateful for the support that has been voiced for this amendment by the noble and gallant Lord, Lord Stirrup, and on behalf of the noble and gallant Lord, Lord Boyce. Both are former Chiefs of the Defence Staff and each is a former head of the Royal Navy or the Royal Air Force. Bear in mind that I am a former head of the Army. I am grateful for the support that has come from Members of all political parties in this House, but I am deeply disappointed that the Minister does not see the opportunity that this amendment poses. It gives the Ministry of Defence an opportunity to say, in simple and plain terms, how it can solve the problem of incessant vexatious investigations.

I regret that I decided not to press this amendment to a Division at this stage. I note that the Minister did not invite me to have further conversations with her, with her officials or with Johnny Mercer, the Minister for Defence People and Veterans. If she wishes to extend that invitation, I will gladly accept it. But I am quite certain that, with the support of the representatives of the armed services who have spoken and from all political parties, we will return to this on Report. If I do not feel that we have reached satisfaction in getting to the nub of the purpose of the Bill, which I have repeated several times, we will press this to a Division on Report. In advance of that, I beg leave to withdraw this amendment at this stage.

Amendment 31 withdrawn.

We now come to the group consisting of Amendment 32. Anyone wishing to press this amendment to a Division must make that clear in debate.