Amendment 14

Overseas Operations (Service Personnel and Veterans) Bill - Report – in the House of Lords at 6:48 pm on 13 April 2021.

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Lord Dannatt:

Moved by Lord Dannatt

14: 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 update, and(b) include the update in the Armed Forces Covenant annual report when it is laid before Parliament.(4) The duty of care update is a review about the continuous process 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 update 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 litigation arising from overseas operations, and to include a duty of care update in the Armed Forces Covenant Annual Report.

Photo of Lord Dannatt Lord Dannatt Crossbench

My Lords, in opening this short debate on Amendment 14, I first thank the noble Baroness the Minister and the Minister for Defence People and Veterans for meeting me and other noble Lords on matters pertaining to this and other amendments. Indeed, I am grateful to the noble Baroness for meeting me twice on these matters.

It is perhaps no surprise that I am of the view that we share common objectives for the Bill, which I hope will become an Act within this parliamentary Session. These common objectives include the better protection of serving and veteran soldiers, sailors, airmen and marines from repeated and extended investigations and unjustified prosecutions arising from their service on behalf of the nation on overseas operations.

We also share the common objective of properly supporting such personnel while they are going through an investigation and prosecution process—after all, when a soldier lays their life on the line at the behest of their employer, I am sure that we can agree that he or she has a right to expect that employer to exercise a proper duty of care towards him or her as they go through any investigative or judicial process.

If we are broadly agreed on the common objective, where we are not yet fully agreed is on the scheme of manoeuvre—the campaign plan, if you like—to reach that common objective, but we are making progress, and many of the constituent parts of a successful plan are beginning to emerge. Amendment 6, which we earlier debated and voted to stand part of the Bill, for the time being at least, is an important and welcome addition to the provision of safeguards into the investigation of allegations relating to overseas operations. Moreover, the Minister has today released a Written Ministerial Statement asserting that the purpose of the Bill is to provide better legal protection to Armed Forces personnel and veterans serving on military operations overseas. The Statement references and underlines a defence instruction and notice whose basic principle is that the department

“is committed to standing behind its people who act reasonably and in good faith in the course of their duties”.

If we are agreed that a good employer will discharge a proper duty of care towards its people, then the pieces of this jigsaw—this campaign plan—are beginning to come together. Amendment 14 would join those parts of the jigsaw into one picture, to bring these hard-fought battles and engagements into line in a comprehensive campaign plan for the benefit of our people in uniform and for those who have worn a uniform in the past.

Defence priorities change; the fortunes of military charities fluctuate; Ministers come and go; but the law does not change. Amendment 14 would bring into law the good ideas and intentions of well-meaning Ministers and officials with whom we are currently united in common cause but who are strangely reluctant to enshrine the fruits of their endeavours in a Bill which will become an Act of Parliament and thus part of our law—a law to protect our people for all time from vexatious investigations and prosecutions.

I have heard an argument that says that if we enshrine a duty of care in law it will present the possibility of creating grounds whereby disaffected parties could take the MoD to court if in their opinion the terms of the legally binding duty of care had not been adhered to, but is that really an honourable or credible argument against creating a duty of care in the first place? Surely in any walk of life, rules and regulations setting out what is and what is not acceptable are a commonplace occurrence. If you act within the rules, all is fine, but if you step outside, then sanctions follow. I am no lawyer, but I am sufficiently aware of the way our civilised society is organised to know that if I step outside the law, whether it is in a transaction on the high street or in my behaviour on a rugby field, I will be sanctioned. Is the Ministry of Defence so frightened that if it establishes a duty of care that passes into law and then it acts outside that law some of its employees might sue it? Surely the correct approach is for the Ministry of Defence to lay down a duty of care within the next six months, as Amendment 14 suggests, and then commit to live within that legally based statement of the duty of care for the benefit and transparency of both the employer and employees. Is that too much to ask? I beg to move.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge

My Lords, I offer my support for this amendment for all the reasons given by my noble friend Lord Dannatt. I thought that it would be right for me as a lawyer to ask myself whether the amendment was asking the Secretary of State to do something that our legal system would find hard to recognise or put into effect. It is a long amendment, full of what no doubt was thought to be necessary detail; but the key words to which I have directed my attention are to be found in proposed new subsection (1), read together with the definition in proposed new subsection (7). They are the words “duty of care”, which are used to define the obligation that is already owed to service personnel, both moral and legal, to ensure their well-being.

There are a number of things that need to be said to explain why the amendment has my support. First, this is a duty of care, not an absolute duty. It sets a standard that the amendment is talking about at the right level. An absolute duty is a duty that must be complied with irrespective of the circumstances. What has been talked about here is a duty to take reasonable care to achieve that standard. It is not driving the Secretary of State to achieve something that cannot be achieved with the exercise of ordinary care.

Secondly, the concept of setting a standard to be applied in addressing the needs of a particular group within our community is not new. It is familiar in the context of healthcare, for example, with regard to the care of the elderly.

Thirdly, and most importantly in view of the point made by my noble friend some moments ago, the method used should not be seen as encouraging a resort to litigation any more than the setting of standards does in healthcare. What is sought is to set a standard of behaviour, not a set of statuary rules. If litigation has to be resorted to, the complaint would be of a failure in a duty to take reasonable care, using the standard simply as setting out the criteria for what that duty required. There is nothing novel in that approach.

The Ministerial Statement that the noble and learned Lord, Lord Mackay of Clashfern, very helpfully read out to us when speaking on amendments in the first group this afternoon is, of course, to be welcomed. I do not for a moment doubt its sincerity, but Ministers come and go, and Ministerial Statements are, I fear, a bit like the Cheshire Cat. This amendment seeks to bring it up to a higher level of formality. Added to that, it seeks to ensure that the matter is kept under continuous review and public scrutiny. All that seems to me to be for the good. Therefore, if the amendment is put to a vote, I will support it.

Photo of Lord Faulks Lord Faulks Non-affiliated

My Lords, I have thought carefully about this amendment since Committee, when it was moved by the noble Lord, Lord Dannatt. I also reread the debate that took place on that occasion. The amendment received a great deal of support around the House, which was plainly directed towards our Armed Forces and reflected a general desire to ensure that they were, and would be, properly protected against any of the consequences that followed from vexatious claims and repeated investigations. That is of course what lies behind the Bill as it is.

When I first saw the amendment, I thought that it was essentially probing. To that extent, it could be said that the amendment succeeded, albeit rather at the 11th hour, in provoking the Statement issued today and read out by the noble and learned Lord, Lord Mackay of Clashfern. During the debate in Committee, however, the noble Lord, Lord Dannatt, said that the duty of care standard—the expression used in the amendment—which would be established by the Secretary of State in this amendment, if properly worded, would prevent the outrageous behaviour of Phil Shiner and others. In response to the Minister’s reply to the debate, the noble Lord also said that the duty of care would end recurrent vexatious claims and almost unending investigations.

My difficulty with this amendment is that I am not convinced that it would in fact do so. The Secretary of State’s duty of care standard could set out what he or she thought were the obligations that were owed to service personnel involved in investigations or litigations arising out of overseas operations, and that is clear from the Statement made today, which set out in some detail the various ways in which our Armed Forces are supported. The comment made by the noble and learned Lord, Lord Stewart, about educating the Armed Forces to bring claims promptly was also helpful in that regard. However, the Secretary of State could not create by the duty of care standard any change in the law or provide any defence which did not exist either at common law or in statute. Any actual changes would have to be incorporated in the Bill or in some other piece of legislation.

There are ways in which the Bill could be improved, and in the course of debates various measures have been suggested, although none of them addressed the real mischief. That could really be achieved only if the Government and Parliament were to decide that the Human Rights Act should have no extraterritorial application. As I said in Committee, if that was the law—the then Labour Government who brought in the Human Rights Act thought that it was, and Lord Bingham in the Al-Skeini case thought that was the decision—the investigations which in turn generated vexatious litigation and repeated investigations would never have taken place. However, the European Court of Human Rights in the case of Al-Skeini, responding to an appeal brought by Mr Shiner, among other lawyers, was persuaded that the ECHR applied outside the individual state’s territory and indeed outside territories which were within the European convention: that is, outside the scope of members of the Council of Europe.

As the noble and gallant Lord, Lord Craig, pointed out, Sir Peter Gross and his committee are considering this very point at the moment, and I hope that in due course there will be a suitable amendment to the Human Rights Act which will provide considerable assistance in the future in preventing many of the abuses that took place in the past, such as the appalling victimisation of Major Bob Campbell. In the meantime, I fear we must satisfy ourselves with what modest gains can be obtained from this legislation. The presumption against prosecution after five years would provide some reassurance to our service personnel, as indeed was acknowledged by Major Campbell himself when he gave evidence before a House of Commons Committee. The long-stop provisions in Part 2 should put a more or less final line under potential litigation, which will have effect across the board whether the claimants are civilians, members of our Armed Forces, or actual or potential witnesses to some claim.

It seems that the amendment is effectively saying, “Bring us a better Bill.” I am sure that noble Lords have considerable sympathy for any such request—or is it more like an order? However, if this amendment becomes part of the Bill, I fear that it will be something of a declaration, without any true effect. Therefore, with very considerable reluctance, because I share the concern of all those who support the amendment, I fear I cannot support it.

Photo of Lord Boyce Lord Boyce Crossbench 7:00, 13 April 2021

My Lords, as speakers ahead of me, and especially my noble friend Lord Dannatt, spoke eloquently in support of this amendment, I will not tax your Lordships’ patience by repeating all that has been said. However, I wish to reinforce the point that we need something of a more permanent nature by which the Government may be held to account rather than a set of conventions and understandings, including defence instructions and notices. These can be easily changed or cancelled without any significant effort or recourse to Parliament. That is why, although I have very carefully read the Ministerial Statement that the Minister laid before us this morning, which sets out what is available to Armed Forces personnel, serving or veteran, I am afraid that it does not offer the guarantee of permanency of the responsibility of the MoD for the duty of care that this amendment proposes.

I also share, by the way, some of the concerns about the Statement expressed earlier today by the noble Baroness, Lady Chakrabarti. Furthermore, regarding that Ministerial Statement, I am incidentally unclear of the definition of “legacy cases” that the Army Operational Legacy Branch has been created to deal with. That also raises the interesting question of why exemption from means testing for legal aid cannot be applicable for criminal cases arising from all overseas operations, not just Iraq and Afghanistan.

This Bill, which sets out to relieve the strain on personnel under investigation, must surely reflect the fact that the MoD has a statutory obligation for the care of such people. I therefore support Amendment 14.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, it is a privilege to follow the noble and gallant Lord, Lord Boyce, in support of the vital amendment tabled by the noble Lord, Lord Dannatt. It is vital because there does not seem to be anything quite like it on the statute book.

While the Bill, controversially, attempts to protect the MoD from civil suit and individual members of the Armed Forces and veterans from criminal prosecution, it does not provide actual support for them. It does not provide mental health support, legal support or anything else mentioned in the amendment of the noble Lord, Lord Dannatt.

I will not repeat what I said earlier, but even the Statement that was made today clearly to reassure your Lordships that the amendment tabled by the noble Lord, Lord Dannatt, is not necessary gives me cause for concern. There are holes in the automatic non-means-tested legal advice and support, which should be automatic and non-means-tested for any serving member of the Armed Forces or veteran, whether they are facing investigation or prosecution or are a potential witness. That was the biggest problem I found.

Even the mental health support was less than specific or certain and seemed to be about signposting people to general NHS services, even though we all accept that people serving overseas are under particular strain. If their mental health is under particular strain and they are especially exposed to the law, as the Government maintain, why do they not get specific statutory and automatic support?

This is perhaps one of the most important parts of the debate today, and this amendment is possibly one of the most important that has been tabled. I sincerely hope that the noble Lord, Lord Dannatt, will press it to a vote.

Photo of Lord Stirrup Lord Stirrup Crossbench

My Lords, I start by adding my thanks to the Minister for the time and trouble she has taken since Committee to listen to the concerns that my noble friend Lord Dannatt and the other movers of this amendment, of whom I am one, have sought to address. The Government have argued, and no doubt will continue to argue, that what we are trying to achieve is both unnecessary and dangerous. I am unconvinced and I shall try to explain why.

In her response in Committee, the Minister pointed to the mechanisms and processes already in place to support service personnel and veterans. There are indeed both official and charitable structures set up for this purpose; they do a great deal of excellent work, as today’s ministerial Statement made clear. But as I tried to explain in Committee, the situation of those accused of criminal activities and subject to the corresponding and prolonged investigations is particularly difficult. I pointed out that the stresses on these individuals and their families are profound and enduring.

These people are not just accused of a crime; they are charged with trampling underfoot the values and ethos that are an essential element of the special body of which they have been a trusted part. They are suspected of betraying their comrades and bringing them into disrepute. I ask noble Lords to imagine what sort of impact all of that has on people who are members of such a close and unique community.

It is alas true that in some cases the opprobrium will be deserved, but we also know that in such circumstances the innocent and the guilty will suffer alike. Even a subsequent and unequivocal demonstration of innocence will not entirely remove the shadow from their lives or allow them to feel quite the same ever again.

Given such horrendous and, in some cases, undeserved consequences, is it so unreasonable to seek a special degree of support for these people? Is it unreasonable to ask that the requirement for and processes to deliver such support should be codified? After all, Part 1 of this Bill is itself mostly about codifying procedures that nearly everyone agrees a competent prosecuting authority would follow in any case. If these need to be set out in the Bill, why not the processes for ensuring the appropriate source of support for service personnel and veterans? To argue in favour of the former and against the latter would strike me as strangely inconsistent. Just to be clear, I do not believe that defence information notices constitute adequate codification.

The dangers that the Government seem to think lurk within this amendment apparently derive from the legal rights it would afford to those it seeks to protect. The accused could sue the Government if they thought that they had been inadequately supported—and who is to say what level of support should be considered adequate? The only beneficiaries, it appears, would be the legal profession.

Well, my first response would be that if the Government failed to provide the appropriate support, then they should be liable. It seems that in this day and age, we are keen to afford justiciable rights to just about everyone—except our service men and women. As to the definition of adequacy, I entirely accept that Amendment 14 as worded may not have adequately circumscribed this, but is it really beyond the wit of government lawyers to come up with a form of words that would do the trick? Surely, the concept of reasonableness and the appropriate kinds of test are not alien to our legal system.

The noble Lord, Lord Faulks, has said that this amendment would do nothing to prevent future Shiners, and I agree with him. I also agree wholeheartedly that tackling the difficulties caused by the extraterritorial application of the Human Rights Act is essential. None of this, though, obviates the need to support those who need our help.

The Government’s argument appears, in essence, to be, “We don’t think this amendment is necessary because we already do what it suggests, but we’re rather afraid of being sued for not doing what the amendment proposes.” This does not strike me as a tenable position. I urge the Government to think again.

Photo of Lord Houghton of Richmond Lord Houghton of Richmond Crossbench

My Lords, I speak in this debate to support the amendment moved by my noble friends. I do so because it is the closest to resolving, or at least ameliorating, the problem—and it is a problem, as many have rehearsed. It is essentially a practical one, relating to training, leadership, command oversight, operational reporting and improved investigative capacity and competence.

I fear that I remain convinced that the resort to legal exceptionalism which this Bill contemplates, and which appears to have initiated so much of the debate in the House, is an ill-considered course of action. It will make our service men and women more, not less, exposed to the challenges of the law. Law, in the context of this debate, is not simply the legislative framework within which war is conducted; it has become a weapon of that war. In the jargon, it is a new vector of attack. By way of emphasising my point, while this Bill has been maturing, we have seen the product of an extended review of the country’s security, defence, development and foreign policy. The results have been the integrated review paper and the companion MoD document, Global Britain in a Competitive Age.

These are both excellent pieces of work and speak to the radically different character of future war. At the heart of both documents are the themes of systemic and enduring competition between nations, between political systems, across multiple spheres. The documents emphasise the lack of clarity over where the threshold of conflict sits, the impossibility of differentiating between peace and war, home and away, friend and foe. They speak of the far greater reliance, in future, on technical advantage, automated processes, autonomous systems. They move the comprehension of conflict beyond the recent sense that it is periodic, adversarial, away fixtures.

In the context of these reviews, does not the Bill have a spectacularly old-fashioned feel about it? It is specifically designed just for overseas, for high-intensity conflict, confined to individual accountability. In the context of the reviews, what contribution does the legal dimension of the Bill make to our avowed national commitment to universal human rights, to the less defined character of future conflict, to the potential introduction of autonomous weapons systems cued by artificial intelligence? The defence procurement process is often accused of bringing complex modifications of yesterday’s equipment to yesterday’s war. I fear that the legal aspects of the Bill feel somewhat akin to the half-brother of that process.

By contrast, I hope that this amendment, in bringing about a more formalised duty of care, will initiate the provision of a more proactive understanding of the changing character of war, and a greater need to exercise command with responsibility before, during and after conflict. I also hope it will help ensure that our Armed Forces, in pursuit of technological advantage, do not fall foul of the promise of novelty and find themselves with capabilities for which no legal framework exists. In this respect, I join my friend the noble Lord, Lord Browne of Ladyton, in believing that this House needs the opportunity to debate these issues outwith the constraints of the Bill, which I fear does nothing to address them. Indeed, might the Government pull the Bill? Might they adopt a duty of care as the answer to this problem and then return to the more important debate—that is, to reassess the legal framework in which war is conducted in the light of the findings of the integrated review and ask some more fundamental questions about it?

Photo of Baroness Smith of Newnham Baroness Smith of Newnham Liberal Democrat Spokesperson (Defence), Liberal Democrat Lords Spokesperson (Defence) 7:15, 13 April 2021

My Lords, we have heard some important speeches making it clear why this amendment is so important. However, I confess that, having listened to the noble Lord, Lord Faulks, and the noble and gallant Lord, Lord Houghton of Richmond, I almost got to the point that my noble friend Lord Thomas of Gresford got to on the previous group: ought we to be killing the Bill, or asking the Government to kill it? Although I did not think at the previous stage that this amendment was necessarily a probing amendment, the more I looked at Amendment 14, the more it looked like the Government needed to be thinking about these issues more generally, not just in the context of overseas operations.

The Liberal Democrats will be supporting the amendment, but I think it raises issues which, if the Government have thought about them, have not yet been made clear to your Lordships’ House and perhaps to the other place. As the noble and gallant Lord, Lord Houghton, pointed out, since the Bill was introduced in the other place, we have had the integrated review, the defence White Paper and the defence industrial strategy. There seems to be a whole swathe of legislation coming forward. We also, I assume at some point, are going to have legislation dealing with historic issues associated with Northern Ireland, and surely the duty of care links to the issues of Northern Ireland.

I did not speak on the second group of amendments, but it was interesting to hear the very different approaches to saying that we need to think about Northern Ireland again. They did not fit into a Bill on overseas operations, quite clearly, yet some of the issues, and that sense of repeated investigations, apply as least as much to Northern Ireland as to overseas operations. Are the Government proposing at some point to bring these themes together? Are they going to be in the Armed Forces Bill 2021? Are we going to see questions of duty of care that ought to be embedded not just in this Bill but more broadly? If not, could the Minister take this away and talk to her colleagues in the MoD Main Building and in the other place?

The Armed Forces Bill is coming up this year. As we have heard, issues about hybrid warfare and artificial intelligence need to be thought about, and potentially thought about differently, but this Bill does not really get into them. I fully understand that the Minister might say that this is intended to be a very small and discrete Bill. That may be so, but if those matters are not being considered in this Bill, are they being considered elsewhere? If not, could she undertake to go away and think about them?

Photo of Lord Tunnicliffe Lord Tunnicliffe Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Defence), Shadow Spokesperson (Treasury), Shadow Minister (Transport)

My Lords, we fully support Amendment 14.

By my count, the noble Lord, Lord Dannatt, and the noble and gallant Lords, Lord Boyce and Lord Stirrup, have about 120 years of service in the Armed Forces between them. They have all argued passionately for a duty of care standard to be in the Bill. As a former acting pilot officer, I have to say that I am very proud of the stance they have taken. It shows that the former leadership of the Armed Forces is capable of being both compassionate and wise. When colleagues of such experience speak, we should listen. I am unsure why the Government remain so resistant to this. We stand foursquare behind our troops and a duty of care would ensure that our Government did so too. We will support the amendment if it is pushed to a vote.

As Amendment 14 refers to legal support, I want to seek some clarity on legal aid. I thank the Minister for writing to me on this issue, but the position stated in the letter is a little different from the position of the Minister in the Commons. The letter says:

“We cannot categorically say that Service personnel will receive legal aid” but Johnny Mercer said:

“There is … full legal support, paid for by the MOD, for everybody swept up in these investigations.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 22/10/20; col. 351.]

Can the Minister confirm that? The letter also says that cuts which were applied to the national legal aid system were also applied to the Armed Forces legal aid scheme as they mirror each other, but the Armed Forces Minister said that the Armed Forces system is “bespoke”. Can the Minister confirm how much money for legal aid has been cut in the last decade from the Armed Forces legal aid scheme? This confusion between Ministers demonstrates exactly why we need protection in the Bill.

Ministers say they have made progress, but ultimately Ministers move on. Let us put a duty of care in the Bill so that personnel have full confidence that Ministers are serious about helping them through difficult times. I look forward to the noble Lord, Lord Dannatt, seeking the decision of the House. We will undoubtedly fully support the amendment.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), The Minister of State, Ministry of Defence

My Lords, this has been an interesting debate and I am very grateful for all the contributions that have been made. Amendment 14 proposes that the Ministry of Defence should establish a statutory 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 provide an annual update in the Armed Forces Covenant Annual Report.

This is obviously a matter of great importance which commands the interest of us all, and I am very grateful to the noble and gallant Lords, Lord Stirrup and Lord Boyce, and the noble Lords, Lord Dannatt and Lord Tunnicliffe, for their commitment to ensuring appropriate protection for our service personnel and veterans and for the conversations we had following the debate in Committee. In terms of the sentiments expressed by the noble Lord, Lord Dannatt, and the broad objectives which he and the noble and gallant Lords seek to achieve, I doubt if there is a cigarette paper between us—where we diverge is on the mechanism for delivery—so I can see why many are attracted to this amendment and feel the Bill could be enhanced by it.

I start by saying that we take our responsibilities to our service personnel and veterans extremely seriously. I have listened to the concerns raised in Committee and I have met further with the noble and gallant Lords. I thank them for their willingness to have these meetings, which have been constructive. I understood from the meetings that further reassurance was needed about the breadth and depth of support now available to those who are subject to investigations and prosecutions. As has already been referred to, a Written Ministerial Statement was published which set out as a matter of record the diversity and depth of the support that is and will continue to be available.

Although in Committee I provided an overview of the support that we give to our personnel and veterans, I am happy to summarise the key points from the Written Ministerial Statement for the benefit of the House. First—and importantly—as a matter of MoD policy, service personnel are entitled to legal support at public expense where they face criminal allegations and civil claims that relate to actions taken during their service and where they were performing their duties. I say to the noble Lord, Lord Tunnicliffe, who asked whether there was a discrepancy between the descriptions given of the availability of legal aid, that I am not sure what the nature of the difference is between what I had said and what my honourable friend the Minister for Defence People and Veterans said in the other place, but it may have been the simple distinction that there has to be a need to be performing duties. Obviously, a member of the Armed Forces could commit a crime while not engaged in their duties, and one would imagine that that would then become the responsibility of civil authorities if it took place in this country. If it took place overseas, other interventions might be necessary.

Legal advice and support are also available wherever people are required to give evidence at inquests and inquiries and in litigation, and this is co-ordinated by the MoD. This principle is at the heart of the MoD’s approach to supporting our people and is enshrined in the relevant defence instruction notices. I know that the noble and gallant Lord, Lord Stirrup, was slightly caustic about that, but these are the notices which make clear to our Armed Forces personnel what they can expect, in terms of support, from the MoD and their chain of command and what facilities are available to them. It is a responsibility that the MoD takes very seriously, and we keep our policies under review to ensure that they are appropriate and tailored to need.

At an earlier stage this afternoon, the noble Baroness, Lady Chakrabarti, raised a couple of issues about legal aid, and I will try to clarify what some of this provision is. Any individual who is investigated by the service police is entitled to legal representation as well as the support of an assisting officer, who can then offer advice on the process and procedure and signpost welfare support. Individuals who are interviewed as suspects under caution will be entitled to free and independent legal advice for this stage of investigation. Subsequently, legal funding for service personnel and veterans facing criminal allegations can be provided through the Armed Forces Legal Aid Scheme or through the chain of command for as long as is necessary.

As regards legal aid funding, the Armed Forces Criminal Legal Aid Authority will provide legal aid in circumstances where service personnel are not entitled to regular legal aid because of where they are employed or resident as part of their military duties. Where service personnel’s employment or residence has not disadvantaged them, they can apply for regular legal aid as well, as would a civilian, and are therefore not placed at a disadvantage. Personnel are entitled to apply for legal aid regardless of whether they are considered to have acted outside the scope of their duties, but the MoD can still decide to pay for legal representation in respect of an allegation arising from an act committed in the course of the service personnel’s duties. There is extensive provision. I know that the noble Lord, Lord Tunnicliffe, was interested in this issue, and I can undertake to provide both the noble Lord and the noble Baroness, Lady Chakrabarti, with more detailed information if that would be helpful to them.

There is also comprehensive welfare support available. The Army Operational Legacy Branch was established last year to co-ordinate the Army’s support to those involved in legacy cases. The AOLB provides a central point of contact and optimises the welfare network already in place through the commanding officer and chain of command, arms and service directorates, and the network of regimental headquarters and regimental associations. Although the AOLB has been established to provide an Army focus to legacy issues, the support that it provides is extended to the other services. Veterans UK is also closely engaged in providing support to veterans and, where required, the Veterans Welfare Service will allocate a welfare manager to support individual veterans.

At an earlier point, the noble Baroness, Lady Chakrabarti, specifically raised mental health support. I reassure her that much support is provided. This support is in addition to the range of welfare support and mental health support that is routinely offered to all our Armed Forces people. As the noble and gallant Lord, Lord Stirrup, acknowledged, the potential impact of operations on a serviceperson’s mental health is well recognised and there are policies and procedures in place to help manage and mitigate these impacts as far as possible. All Armed Forces personnel are supported by dedicated and comprehensive mental health support. Defence mental health services are configured to provide community-based mental health care in line with national best practice. Veterans are able to access all NHS-provided mental health services, wherever they live in the country.

As your Lordships will understand, some of this will occur in the devolved nations. Health is a devolved responsibility and so, within these nations, services have been developed according to local populations’ needs and the service specification will vary depending on what the individual devolved authorities have determined. This can mean bespoke veteran pathways or ensuring an awareness of veterans’ needs. All veterans will be seen on clinical need. Additionally, the Office for Veterans’ Affairs works closely with the MoD and departments across government, the devolved Administrations, charities and academia to ensure that the needs of veterans are met.

Significant progress has been made to ensure that our service personnel and veterans have access to a comprehensive package of legal, pastoral and mental health support. We therefore believe that it is unnecessary to establish a statutory duty of care.

I turn to the issue of investigations, about which the noble Lord, Lord Dannatt, is rightly concerned. As I have said, I recognise the depth of the concerns of noble Lords and their commitment to ensuring that service personnel and veterans are appropriately supported should they be subject to legal proceedings as a result of their service on overseas operations. I should like to make it clear, however, that the amendment would not lead to the prevention or limitation of investigations, or, for that matter, to the reinvestigation of allegations of wrongdoing by our personnel. As I have said in response to other amendments in relation to investigations, where the service police have reason to believe that an offence may have been committed—whether as the result of a reported allegation of a criminal offence or a civil claim for compensation which then suggests that a criminal offence may have been committed—they have a legal duty to investigate. This is the right and proper thing to do, and the passage of time does not change this duty.

As I have also previously observed, investigations can both exculpate or incriminate. It would therefore be inappropriate to seek to introduce any measures that would grant impunity to our service personnel after a certain period of time; that would effectively be a statute of limitations and I do not believe for one moment that this is what the noble Lords are seeking to do. With all due respect to the noble Lords, I strenuously reject any suggestion that service police investigations or reinvestigations have been, or are, vexatious. Investigations have to take place to determine the truth or otherwise of an allegation, and the service police are cognisant of the need to investigate as effectively and efficiently as possible.

However, investigations or reinvestigations of historical allegations are always likely to present particular challenges, including in terms of the timescale for the completion of an investigation. It is therefore entirely appropriate that we provide comprehensive support to our people when they are subject to investigations, particularly when these are many years after the events in question. This is exactly what the MoD’s policies on legal, welfare and pastoral support have been developed to provide.

I will make brief reference to the service police complaints commissioner. I draw your Lordships’ attention to the measure in the Armed Forces Bill to create a new officeholder in that role and to take powers to replicate the regime set out in Part 2 of the Police Reform Act 2002.

The issue of independent oversight was examined as part of the service justice system review, which found that a degree of independent oversight was missing, in comparison with civilian police forces, and recommended that a new niche defence body be created to deliver this. Following consideration of this recommendation, we believe that the service police should mirror the arrangements used in the civilian system, with differences only where they are considered necessary to take account of the service context.

This will allow us to put in place a system to deal with complaints and other serious matters relating to the service police, modelled on the one in place for civilian police in England and Wales. Under the new regime, anyone will be able to make a complaint, so long as they have been adversely affected by the matter complained about. I hope that this provides additional reassurance to the noble and gallant Lords in respect of the conduct of investigations by the service police.

I move on to the issue of unintended consequences, an area where I detect already that there is not an agreed analysis or conclusion. The Government are concerned that this amendment could result in unintended and undesirable consequences. Whether an individual wants or needs pastoral, welfare and mental health support is a personal issue. A statutory duty of care standard could, if not very carefully drafted, end up as a one-size-fits-all approach not flexible enough to cope with the needs and wishes of individuals. It could even engender an approach whereby support is provided only in accordance with the standard, which might leave personnel without the right support at the right time for them.

Additionally, we are deeply concerned about the potentially negative effect of this amendment if it is included in this legislation. In our opinion, it is clear that it is likely to lead to an increase in litigation, which will also mean more of our people being subject to potentially lengthy and stressful court proceedings, which is profoundly undesirable and certainly contrary to the objectives of the Bill.

The noble Lord, Lord Dannatt, said that the MoD should be prepared to meet valid claims and do the right thing by its Armed Forces personnel. I agree: it should, and it does. However, a lawyer’s paradise could be accidentally created by this amendment because notions of pastoral and moral duties are very difficult to define adequately, and there is a real risk that attempting to do would lead to more, rather than less, litigation and greater uncertainty.

The noble and learned Lord, Lord Hope, feels that that is not a risk, while my noble and learned friend Lord Mackay of Clashfern considered that the Written Ministerial Statement provided clear evidence of wide-ranging support for the discharge of the duty of care. The noble Lord, Lord Faulks, clearly has anxieties about the reach of human rights law, unless the Human Rights Act is amended. He therefore feels that this amendment is purely decorative. I illustrate these differing views merely to say that it would be bold to assume that there is one categoric view that is absolutely correct —we have to be cautious.

Over the last few decades, successive Governments of different political hues have been in office, and none have seen fit to do this. It may be that difficulties were acknowledged in relation to how you adequately draft and frame a duty of care so clearly articulated that there can be no ambiguity or doubt about how far it is intended to reach.

There is another area of concern. As investigations and allegations often arise in the operational theatre involving the commanding officer, the Royal Military Police and service personnel, this amendment could have other unintended consequences. These might impact on the operational theatre and, again, lead to an increase in litigation.

The concern that this provision could impact the doctrine of combat immunity—which excludes civil liability in combat circumstances—is implicitly acknowledged by noble and gallant Lords who have sought to exclude this possibility by virtue of subsection (8) of the amendment. I can add only that we are uncertain as to how the proposed duty of care would operate in the theatre of combat. Again, I think we should be very wary of the possible unintended consequences of the innovatory creation of such a statutory duty.

Finally, there was a question as to whether this Bill was the correct or best forum for wider discussions about the duty of care owed to service personnel. The Armed Forces Bill, which was introduced into the other place on 26 January 2021, will further incorporate the Armed Forces covenant into legislation. That Bill is a more appropriate mechanism for any discussion of the wider duty of care owed to our people.

Turning to the suggested reporting requirement, I am happy to reassure your Lordships that, in the context of many of the areas listed in this amendment, we already publish a comprehensive annual report on the Armed Forces covenant. There is already a well-established process through which service personnel can make complaints. The Service Complaints Ombudsman reports annually to Parliament on this. We continually review these policies and processes to ensure that they provide the best support and care possible for our personnel.

We are clear about 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 that setting a standard for a duty of care in the Bill is necessary, nor does it per se require an annual report to Parliament.

In the light of the further information I have made available about these important issues, if the noble Lord, Lord Dannatt, wishes to pursue this further, I ask him to look at the Armed Forces Bill as an appropriate conduit or forum for these discussions. In these circumstances, I urge him to withdraw his amendment.

Photo of Lord Dannatt Lord Dannatt Crossbench 7:30, 13 April 2021

My Lords, I thank all noble Lords who have spoken this evening. I was going to say that it was a short debate but it was a proper-size debate, getting at a number of these issues. I thank the Minister for her thoughtful and comprehensive reply to the points raised and for addressing Amendment 14. She is right that in some ways there is no more than a cigarette paper between us. In my opening remarks, I said that I was pretty clear that we shared a common objective. The current area of disagreement is over how we march towards achieving success on this common objective.

Amendment 14 is about establishing a duty of care standard. I am grateful to the noble Baroness, Lady Chakrabarti, for referring to this as a vital amendment. The noble Baroness, Lady Smith, and the noble Lord, Lord Tunnicliffe, also indicated the support of the Liberal Democrats and the Labour Party. If we believe that we have a common objective in doing the right thing by our serving and veteran personnel, then I fail to see why clearly setting out a duty of care is causing so much difficulty for the Ministry of Defence.

In Committee, there was some discussion about whether this was the right Bill to address these issues. Many of us argued that, if we were to lose this Bill, it could be quite some time before there was another Bill that could address them. I argue strongly that we should maintain this Bill on its passage through Parliament.

My noble and gallant friend Lord Houghton referred to the recent integrated review and the questions quite rightly thrown up about future warfare and the conduct of servicepeople within it. Undoubtedly, he is right to make reference to that. But I feel his comments and those of the noble Baroness, Lady Smith, could be taken a step further to argue that we should kill this Bill and hope for another one that could better achieve the objective, which would be a reasonable argument. But as far as I am concerned, it is capped by the argument that we have a Bill and that we should make the best of it and try and achieve what we can in terms of a better duty of care to our people.

The noble Lord, Lord Faulks—one of the few speakers who did not speak in a content manner about any of the amendments that have been lodged and discussed this afternoon, for which I congratulate his courage—did make a reference that he thought this was a probing amendment. Yes, to an extent, it is a probing amendment, and when you probe, and find weakness, you are minded to attack, which is why I recognise the comments of the noble Lord, Lord Tunnicliffe, when he referred to the 120 years of service of the noble and gallant Lords, Lord Stirrup and Lord Boyce, and myself, each former heads of the Army, Navy and Air Force. But if you are going to mount an attack, it best comes when there is some leadership to force the issue. That is what we are going to do this evening.

The noble Baroness, Lady Goldie, made reasonable reference to the fact that the Armed Forces Bill going through Parliament might be a better mechanism for taking these issues forward. She may well be right, but we are currently debating amendments to the overseas operations Bill, and subsequently we will be discussing the Armed Forces Bill.

Because I believe passionately that we should be standing up for our servicepeople and veterans, I believe we should be setting out a clear duty of care. Many of the things I would expect to see in that duty of care are not novel; many of them are swept up in the issues being discussed in this Bill, not least Amendment 6, which we debated successfully this afternoon. In a sense, that duty of care will be an amalgamation—a compendium, if you like—of things a caring employer should gather together in the best interests of its employees.

Finally, there has been some reference to Northern Ireland. In an ideal world, this duty of care would not just extend to operations overseas but address some of the issues relating to Northern Ireland, which for many people are still extraordinarily sore.

For all these reasons, I wish to test the opinion of the House. I believe passionately that we should set out a duty of care and, should we not succeed in establishing such a duty of care through the passage of this Bill, I am confident that my colleagues and I will return to these issues in the context of the Armed Forces Bill when it comes to your Lordships' House. I wish to test the opinion of the House on Amendment 14.

Ayes 303, Noes 223.

Division number 4 Overseas Operations (Service Personnel and Veterans) Bill - Report — Amendment 14

Aye: 303 Members of the House of Lords

No: 223 Members of the House of Lords

Aye: A-Z by last name

No: A-Z by last name

Division conducted remotely on Amendment 14

Amendment 14 agreed.

Clause 13: Power to make consequential provision

Amendment 15 not moved.

Clause 14: Extent

Amendments 16 and 17 not moved.

Clause 15: Commencement and application

Amendments 18 and 19 not moved.

Photo of Baroness Garden of Frognal Baroness Garden of Frognal Deputy Chairman of Committees, Deputy Speaker (Lords) 8:01, 13 April 2021

My Lords, we now come to the group beginning with Amendment 20. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

Schedule 1: Excluded offences for the purposes of section 6