Amendment 23

Armed Forces Bill - Report – in the House of Lords at 6:15 pm on 23rd November 2021.

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Lord Thomas of Cwmgiedd:

Moved by Lord Thomas of Cwmgiedd

23: Clause 12, page 24, line 20, at end insert—“(3A) After section 115A insert—“Further provision in relation to independence of investigations115B Further provision in relation to independence of investigations(1) The tri-service serious crime unit must contain a victim and witness care unit, funding for which is to be made available by the Secretary of State.(2) The Deputy Provost Marshal for serious crime must be a civilian appointment.(3) The tri-service serious crime unit must carry out its investigations in a manner that is operationally independent of the military chain of command.(4) The Provost Marshal for serious crime must produce a report annually to the Minister chairing the Service Justice Board, who must arrange for the report to be laid before Parliament.(5) Before the tri-service serious crime unit is established, a Strategic Policing Board, consisting of a non-executive director (who is also a member of the Service Justice Executive Group), a retired chief constable, a recently retired senior military officer, and a retired judge, must be established to provide assurance and governance of the Provost Marshal for serious crime and the Defence Serious Crime Unit.(6) The tri-service serious crime unit must be established by 1 April 2022.(7) By 1 July 2022, the Provost Marshal for serious crime, Director of Service Prosecutions and Judge Advocate General must agree protocols on fatalities and ill-treatment cases.”” Member’s explanatory statementThe amendment is intended to strengthen the independence of the tri-service serious crime unit in accordance with the recommendations of the Henriques Report.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee)

My Lords, I rise to move Amendment 23 and support Amendment 27. The issue addressed by Amendment 23 is quite clear: the adequacy of the statutory provisions to protect the independence of the Armed Forces police and, in particular, this new unit.

I do not think there is any difference about the constitutional principle. It was set out in one of the cases dealing with the Iraq war, Ali Zaki Mousa (No. 2), where it was said that the Armed Forces police

“must be able to make their decisions entirely independently of the Secretary of State for Defence, any civil servant in that Ministry and, even more importantly, of anyone in the hierarchy of the armed forces.”

That was the principle applied by Sir Richard Henriques in his report, which set out the practical way in which that principle could be given effect and applied.

This amendment seeks in particular to fill in the essential areas of protection needed to ensure independence. They are all set out in the proposed new subsections of the amendment. We went into these in Committee, but I will highlight three of them.

First, the deputy head must be a civilian. It is important to bear in mind that, in the cases that went into the independence of the investigations in Iraq—the Ali Zaki Mousa cases—IHAT had a civilian head, and he brought a different perspective. This is a very important point made by Sir Richard.

Secondly, there can be no watering down of the principle of the operational independence of the military command. I will come to the provision of the Bill which does water it down.

Thirdly, there is the establishment of the strategic police board. When you occupy a position where you can be put under pressure, it is very important to have the protection of someone. Within the Armed Forces, the Director of Service Prosecutions has the Attorney-General. The Judge Advocate-General has the Lord Chief Justice. There can be no reason for not putting into statute a very clear provision that the strategic policing board can support the head of the unit if he or she comes under pressure, which he or she no doubt will.

Why are these statutory provisions necessary? I am grateful to the Minister for her very careful letter, in which she sought to deal with the adequacy of what is in the Bill, which is, essentially, the appointment of the provost marshal of the tri-service unit, the method of his appointment and, if I may say so, a somewhat watered-down expression of the principle of independence, and in particular operational independence. There are three reasons why I urge your Lordships to consider this amendment as important in strengthening the position.

First, as the Minister, with the assistance of her lawyers, has set out, there are a number of cases, two of them in particular involving Ali Zaki Mousa, that looked at the independence of the way in which the investigation was made of the conduct of the Armed Forces police. But it is critical to remember that in those cases what was put under the microscope was the particular structure that had been carefully set up. There is no case that says that the current position is adequate. Indeed, that must be the position, otherwise would why would Sir Richard have gone to the trouble to which he went in making these recommendations? What is set out in the report, which I have already mentioned, is what is required.

The second reason why statutory provision is needed is to protect the Armed Forces. Indeed, my principal reason for moving the amendment is to try to protect the Armed Forces from the risks of it being able to be argued that the position of the Armed Forces police is not independent. In the cases that related to IHAT, on which the Ministry of Defence relies, there was a very careful examination. For example, in the Ali Zaki Mousa case there were five days of hearings spread over a considerable period of time, a vast quantity of documents, statements from very senior people across the Armed Forces, and some cross-examination. It is obviously undesirable to have a repetition of that process and it is therefore essential that the position is made clear in statute.

Noble Lords might say that this is a one-off circumstance. I referred in Committee to something that happened during the Malaysia emergency in 1948 that came up for investigation in the courts many years later in 2011. One of the central issues there was that the investigation had not been independent. Again, issues arose during the course of the Blackman case as to the independence of the investigation. Much more recently, there have been reports in the Sunday Times, of which we are all well aware, that again cast doubt on the independence of the investigation. All I feel it necessary to say is that all these attacks on the independence of an investigation could and should be avoided by putting the matter beyond doubt in legislation. The current legislation simply does not go far enough.

The third reason for saying that the current legislation is not correct is that it does not reflect the proper constitutional position, and these matters ought to be put on a statutory basis. The duty set out in Clause 12(3), which is to try to ensure operational independence, is not enough. There must be operational independence, and that should be a statutory principle.

Furthermore, experience has shown that the measures recommended by Sir Richard are measures that are needed to ensure and protect independence, particularly the points I have mentioned in relation to a statutory policing board and a civilian deputy. It is also important for the perception of independence to have a properly constituted witness and victim unit.

I may be very old-fashioned, but I believe that it is Parliament’s job to specify in circumstances such as this what is necessary to protect the independence of a body, not leave it to the Executive, which is the body against which it needs protection—the Executive whether it be in the form of the Ministry of Defence or the Armed Forces. It is entirely consistent with the principle that we legislate for a standing Army every five years that, when legislating, we deal with issues that have arisen, and when an issue has plainly arisen, for which Sir Richard Henriques has set out what needs to be done, Parliament should legislate and it should not be left to the Executive.

I regret, therefore, that I do not accept what the Minister said in her kind and detailed letter. There is no real reason given in that letter why these provisions should not be put on the statute book, to put the matter absolutely beyond doubt. I urge your Lordships that we all in Parliament do our duty and do not simply leave it to the Ministry of Defence to decide what is necessary or unnecessary for the protection of independence.

Photo of Lord Robertson of Port Ellen Lord Robertson of Port Ellen Labour 6:30 pm, 23rd November 2021

My Lords, I speak to Amendment 27, in my name and those of other noble Lords, which calls for an independent defence representation unit. The amendment moved by the noble and learned Lord, Lord Thomas of Cwmgiedd, is the principal amendment in this group, but this amendment is important and I am sure the Minister will have been well briefed on the subject. As the noble and learned Lord said rhetorically in Committee:

“I do not understand why we always expect the Armed Forces to have second best.”—[Official Report, 2/11/21; col. GC 295.]

And, in respect of independent representation, I fear that that is precisely what they get at the moment.

In Sir Richard Henriques’ fine report, he points to the fact that there is independent representation in Canada, Australia and South Africa but not for the British Armed Forces. There is talk that the present representation is a mere sticking-plaster solution. In Committee, the Minister said in mitigation of the stance that these proposals would not be accepted that,

“approximately 40 of these recommendations require policy and legal analysis … and I cannot accelerate that at the moment” and

“we have so far been able to undertake only a light-touch analysis of some of his recommendations.”—[Official Report, 2/11/21, cols. GC 295, 297 and 288.]

I put it to the House that this recommendation is simple, clear cut and very necessary indeed. There is no reason why the Government need postpone further consideration of it. The Minister said in Committee that further consideration will be given when legislative time was allowed, and most of us know that that is usually shorthand for a long time in future. I strongly believe that a defence representation unit is urgent.

In his report, Sir Richard says he has considered the arguments carefully here, and that

The Unit must be fully independent of the military command and act under the general supervision of the Attorney General. Any guidelines or instructions issued by the Attorney General must be published.”

He also makes the very strong point that

“there should be a significant saving on Legal Aid from the creation of this Unit. … Many of the delays at Court Martial may be avoided by the services supplied by the Unit.”

I do not intend to take up the time of the House this evening as we move through the consideration of this Bill, but I shall also read out paragraph 8.3.10 of Sir Richard’s report:

“Budgeting can only be a speculative process in this sphere. I have no doubt that there will be a saving in Legal Aid expenditure, the cost of Services Legal Aid approximating £1.8 million in the year 2019/2020. The cost of adjourned trials in the Court Martial caused by a lack of, or by delayed representation cannot be assessed. The provision of this facility to Service personnel and veterans should not be dictated by budgetary speculation, but by the moral obligation to provide proper support to those who serve or have served their country.”

His final sentence needs to be emphasised and repeated:

“The knock on the door will carry markedly less menace with the knowledge that competent legal assistance will be readily available.”

For the last couple of years, we have come to know precisely the anxiety and mental cost to serving and former members of the Armed Forces caused by that knock on the door. I therefore suggest to the Minister that Sir Richard Henriques’s recommendation that a defence representation unit be created to provide a triage service to service personnel and veterans under investigation for criminal conduct be a matter of some urgency. I look forward to the Minister saying to us tonight that that will be brought forward.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General

There is no doubt that serious crimes are more difficult to investigate in the military than in civilian life due to the exigencies of service. On the other hand, serious crimes occur less often than they do in the territory of every civilian police force. That is why Sir Robert Henriques concluded that

“there should be a senior civilian appointment within the Defence Serious Crime Unit … with experience of major investigations and the ability and necessary experience to control a major incident room.”

He thought that such a number two should have the

“experience and ability to record, retain, manage and process several hundred allegations simultaneously using the most up to date technology.”

I would hope that the noble Baroness could explain, if she resists that particular proposal, that there is some system of training somebody up to the standard Sir Robert Henriques was talking about in his recommendation. How is a person going to get that experience to control a major incident room and carry out the various tasks he is referring to? It is not possible. That is the practical reason why he wanted a civilian as number two.

In recommendation 13 of his report, he said that the candidate would have

“achieved sufficient rank and recognition within civilian policing to act as an ambassador for the interests of Service police within the wider policing community.”

It is important that the service police are seen to be a first-rate service; there should be nothing second rate about the legal service provided to the Armed Forces on whichever side of a particular trial they may be. It is important that the service police should have status and expertise in all fields. I recall, for example, a court martial in Germany involving a German victim, where it was necessary to fly in a criminal pathologist from England to examine a body and later give evidence, and other scientists had to be imported as well. That was only one aspect of the case—the management of a large case is extremely difficult. I respectfully suggest that you cannot get that experience within the service police because they are scattered and do not organise themselves in that way.

I commented at very considerable length in Committee on the necessity to maintain the serious crime unit in a manner that is operationally independent of the military chain of command—for all the reasons that I gave then, and those so eloquently advanced by the noble and learned Lord, Lord Thomas of Cwmgiedd. I do not propose to repeat those comments but very strongly support what he has said.

I emphasise the need also to set up a strategy policing board of experienced civilians—as referred to in paragraph (5) of this amendment—to which the provost marshal for serious crime and the defence serious crime unit should be accountable. That should be done now. There was some suggestion that the provost marshal for serious crime had already been chosen—that is the wrong way round. You need to get together the body of people who will provide support and to whom these various bodies will be accountable.

I will say a brief word about Amendment 27. I strongly agree that there should be a defence representation unit. There are a number of very competent and able solicitors around the country who carry out this task, but it is not well paid, and they have to travel considerable distances to do it; legal representation is frequently delayed as a result.

I remember my great friend Gilbert Blades, who was the solicitor in the Finlay case that started all this off in 1995. His method of attracting clients was to drive around in a pink Rolls-Royce, the arrival of which at an army unit would cause something of a stir. I do not imagine that a defence representation unit would pay the sort of fees that would enable a person employed there to buy a Rolls-Royce, but there we are. It is very important that such a unit be set up; I support that amendment too.

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords)

My Lords, we strongly support Amendment 23 moved by the noble and learned Lord, Lord Thomas of Cwmgiedd, to which my noble friend Lord Robertson, the noble Lord, Lord Thomas of Gresford, and I have added our names. I thank the noble and learned Lord for the clear and concise way in which he outlined the need for this amendment and why the Government should think again with respect to it.

We welcome the establishment of the DSCU but remain concerned as to why the Government will not accept something as seemingly sensible as this amendment. It seeks only to implement Henriques’ full vision for the unit. Without it, independence is not necessarily guaranteed—a point that a number of noble Lords have made—and nor are the other recommendations for how the unit will function. If the Government accept such recommendations, why not put them on the face of the Bill?

The Minister has argued that the other Henriques recommendations remain in the mix but do not need legislative underpinning; however, there is a difference of opinion between what does and does not need legislative underpinning. For example, the noble and learned Lord, Lord Thomas, has argued that there needs to be a statutory provision for the witness and victim care unit, but the Government seem to say that it is not needed. Can the Minister tell us what legal advice the Government have received to come to such a very different conclusion?

By giving the other recommendations legislative underpinning, the Government would demonstrate to Parliament, personnel and victims how seriously they are taking the reform of the services justice system and the reforms being proposed. What the noble and learned Lord, Lord Thomas, is suggesting in Amendment 23 is an important and fundamental principle: a guarantee of the independence of the serious crime unit. It is seeking not a promise of future government action or a written statement—well intentioned as those are—but a guarantee of the independence of the serious crime unit. That is something that this Parliament, this Chamber and this House have said is of such importance that we should put it on the face on the Bill, so that it becomes not a choice for the serious crime unit but a legislative necessity. That is at the heart of what is being suggested. I find it difficult to understand why the Government do not accept that point.

There is another disappointment. Another key point that Henriques made was the importance of civilian representation; the noble and learned Lord, Lord Thomas, mentioned that with respect to the strategic policing board and other measures that he has put forward. It is deeply disappointing that the Ministry of Defence has dismissed the idea of the deputy provost marshal being a civilian. Again, that would have demonstrated to the public the importance that the Government attach to the independence of the unit. That is another mistake that the Government have made with respect to these amendments.

The point made by my noble friend Lord Robertson about the defence representation unit in Amendment 27 is important. He made his points really well, so I will not repeat them, but the necessity to ensure that Armed Forces personnel and veterans are properly supported when they face legal action is a principle I am sure we would all support. My noble friend may not put that to a vote, but it is an important point of principle that the Government need to consider.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), The Minister of State, Ministry of Defence 6:45 pm, 23rd November 2021

My Lords, I thank the noble and learned Lord, Lord Thomas of Cwmgiedd, for his amendment. I know this is an issue in which he is keenly interested and one which he has pursued with vigour. I will speak first to Amendment 23 in his name and supported by the noble Lords, Lord Coaker, Lord Robertson of Port Ellen and Lord Thomas of Gresford.

We had a useful and, I think, constructive debate in Grand Committee on the defence serious crime unit and this amendment. The DSCU is an important part of Sir Richard Henriques’ recent review. Indeed, 20 of the 64 recommendations of that review relate to that unit. I am extremely pleased that we have been able to take swift action to make the necessary changes to primary legislation in order to deliver that unit, and I think everyone shares that view.

Let me address at the outset the specific issue of the number of Sir Richard’s 20 recommendations on the DSCU that the Government are accepting. I think noble Lords were left with the impression that only a small number had been accepted, because the government amendments in Grand Committee related only to three recommendations on the DSCU. It is certainly not the case that only a small number of recommendations have been accepted. Let me explain. With one exception, where we are taking a slightly different approach to civilians, the Government accept all Sir Richard’s recommendations on the DSCU. All the recommendations that we accept and that require primary legislation are dealt with in the Bill. The three recommendations I referred to in Grand Committee reflect those that require primary legislation to constitute the DSCU. These are the changes needed to deliver an operational unit. In particular, they give the provost marshal for serious crime the same powers and duty of investigative independence, on the same terms, as the existing provost marshals. The other recommendations that the Government accept do not require primary legislation.

This mirrors the usual position of a review of this nature, where some recommendations require primary legislation to be implemented and others simply do not. I have sought to explain this in clear terms today, but I have also made available a fact sheet to set out in detail the Ministry of Defence’s work on the DSCU. Indeed, a number of your Lordships helpfully referred to that. I have circulated that fact sheet to opposition defence spokespersons, but I have copies with me in the Chamber today if anyone wishes sight of one.

I also want to assure noble Lords that the Ministry of Defence is now taking forward the DSCU project, both the legislative and non-legislative elements, with considerable speed and energy. As well as the swift work on the primary legislation, work on the necessary changes to secondary legislation is well under way. In Grand Committee, noble Lords agreed a power to make consequential secondary legislation, which will facilitate this once the Bill is passed. A DSCU implementation team has been established, led by a senior civil servant. It is a multidisciplinary team of project management and service police specialists representing the three services. An individual has now been selected to be the provost marshal for serious crime designate. Their initial focus will be to lead the implementation of the DSCU to full delivery. I noticed the comment by the noble Lord, Lord Thomas of Gresford, that he thought this was putting the cart before the horse, but I disagree. This is a sensible, logical, structured way in which to proceed.

I now turn to the specific issues raised in this amendment. In general terms, I do not believe that adding these further Henriques DSCU recommendations to primary legislation is necessary. They will form part of the work that is already under way to establish the DSCU. I am happy to confirm that we are already working towards a DSCU by April 2022 and will look to implement a victim and witness care unit shortly after. In addition, the implementation team has already started work on the establishment of a strategic policing board, which is also to be in place by April 2022. The provost marshal for serious crime will produce an annual report to the Minister for Defence People and Veterans, which that Minister will provide to Parliament. None of these matters requires primary legislation.

Let me say a bit more about three specific issues: the independence of the DSCU, the role of civilians, and the investigative protocols. On independence, the amendment includes the language:

“The tri-service serious crime unit must carry out its investigations in a manner that is operationally independent of the military chain of command.”

However, I respectfully suggest to the noble and learned Lord, Lord Thomas of Cwmgiedd, that this is already reflected in the Bill. I remind your Lordships of the recommendations from Sir Richard regarding the implementation of a defence serious crime unit. He was specific. He said:

“The Provost Marshal (Serious Crime) should have a duty of operational independence in investigative matters owed to the Defence Council, on the same terms as that owed by the” existing

“Provost Marshals under section 115A of the Armed Forces Act 2006.”

That is what we achieve in this Bill and what we are delivering under Clause 12(3).

As the noble and learned Lord indicated, the UK courts have already found that, under the existing structure, the service police are capable of being

“hierarchically, institutionally and practically independent” of those that they are investigating. It is therefore right that the duty on the new provost marshal for serious crime is the same as the existing duty on the provost marshal of each of the service police forces. I urge noble Lords to look at Clause 12(3) if anyone is in any doubt about the impact of that clause.

The Ministry of Defence shares Sir Richard’s ambitions for an increased role for civilians in the DSCU. It is already possible under existing arrangements for civilians to work alongside the service police in delivering service police functions. There are examples of civilians taking on leadership roles in the service police, and of secondments from civilian police forces to the service police. As part of the work of the DSCU implementation team, we will look at options to appoint a civilian in a senior leadership role and at how experienced civilian police can work with the unit. I say specifically to the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lords, Lord Thomas of Gresford and Lord Coaker, that what we cannot do at this stage is have a civilian as deputy provost marshal, because that is a role for service persons and currently subject to Armed Forces systems of command and discipline. At present, simply making them a civilian might give them the title of deputy provost marshal but without the concomitant mechanisms of accountability and control. I am sure that is not what the amendment desires to achieve, but it would be its effect. The role of civilians therefore needs further consideration and work as part of the implementation exercise. However, I hope I have indicated that there is no antipathy within the MoD to the role of civilians in this important process.

I want to address the protocols regarding fatalities and ill-treatment cases referred to in the amendment. As we set out in the ministerial Statement, and as I confirmed in Grand Committee, the non-legislative protocols for dealing with fatalities and ill-treatment cases on overseas operations—between the service police, the Director of Service Prosecutions and the Judge Advocate-General—should rightly be considered by those independent bodies in the first instance. I draw noble Lords’ attention to Sir Richard’s own view on this, which is that “an agreed protocol” is “preferable to legislation”. That particularly avoids compromising the independence of the Director of Service Prosecutions. We support Sir Richard’s recommendation that the protocols should be non-legislative. Taking that approach will allow for more flexibility as the protocol text can be amended at speed in response to lessons learned during its application. Sir Richard also made the point that agreements along the lines that he proposed,

“doubtless with variations to achieve flexibility”,

could be achieved but only once the issue of coronial jurisdiction had been resolved. That was his recommendation 41, and we will engage with the Ministry of Justice on it.

We will be supporting the service police, the Director of Service Prosecutions and the Judge Advocate-General in this important work. The principles of timeliness, regular reviews and consultation are extremely significant. However, there are likely to be issues for these bodies and individuals to consider. In particular, they would need to be comfortable that the arrangements respected the proper relationships between the police, the prosecutors and the judiciary. Further work will be needed to ensure that we address Sir Richard’s concerns over investigations without falling foul of the constitutional principles of the independence of the investigation, the prosecution and the judiciary.

As I have set out, these are important but complicated matters, and the service police, the Director of Service Prosecutions and the Judge Advocate-General need time to properly consider them. While I am sure they will seek to undertake the necessary work to progress them as quickly as possible, it is vital that they get them right and it is important to respect their independence. I do not think it would be appropriate for Parliament to set a timeline of July 2022 for their implementation. I therefore urge the noble and learned Lord to withdraw his amendment.

I will speak to the other half of the group—Amendment 27—which has been tabled by the noble Lord, Lord Robertson of Port Ellen, and supported by the noble Lord, Lord Coaker, and the noble and learned Lord, Lord Thomas of Cwmgiedd. This amendment seeks an early decision—one month after Royal Assent of the Bill—on whether the MoD is going to accept or reject the recommendations in the Henriques review report for the establishment of a defence representation unit and, if the recommendations are accepted, requires the Minister to lay a report before Parliament, setting out a plan and timeline for establishing the unit by July 2022.

As I set out in Grand Committee, we have prioritised our efforts within the MoD on ensuring that we have the appropriate statutory framework in place for the establishment of the defence serious crime unit. I make no apology for prioritising that work; it is critical and necessary, and it will bring vast improvement to the service justice system. But, beyond that, the department has not yet been able to undertake the necessary detailed analysis of the rest of Sir Richard’s recommendations.

The recommendations for the establishment of a defence representation unit, covered by this amendment—recommendations 48, 49 and 50—are included in a larger group of recommendations that we have identified as needing further detailed policy and legal work to determine how we might take them forward. We are currently undertaking work that we hope will allow us to prioritise this larger group of recommendations, taking into account work that is already in hand on the Lyons/Murphy recommendations. When that work is complete, we will be in a better place to manage and track progress on what is clearly an ambitious programme of work.

In respect of the recommendations to establish a defence representation unit, we absolutely agree with the principle of ensuring appropriate legal advice and support to individuals under investigation. But further careful consideration is required to determine the most appropriate and effective way of delivering that support. Until that work is completed, it is not possible to determine whether we can accept the recommendations on the DRU as presented. Therefore, I hope that the noble Lord will understand why we do not wish to be time-bound in this work. I hope that your Lordships are reassured that we are taking the time now to develop a sensible programme and significant body of work so that we can ensure proper oversight and management of the work on Sir Richard’s recommendations.

I understand the interest in these matters, and I do not doubt for one moment the sincerity of the intentions of the noble Lord, Lord Robertson, in relation to them. He is interested, he wants progress to be made and he wants to make sure that the MoD’s feet are held to the fire. I totally understand that. I am happy to repeat the undertaking that I gave in Grand Committee to keep the House informed of progress on these matters: I shall undertake to do that. But I hope that, in these circumstances, the noble Lord will withdraw his amendment.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee) 7:00 pm, 23rd November 2021

I am grateful to all noble Lords and noble and learned Lords who have spoken in this part of the debate. I will first say something briefly about Amendment 27. It is critical to a justice system that you have a properly defended and functioning defence service, and therefore I very much hope that, in the event that this amendment is not pursued, the undertaking given to keep the House closely informed of developments is greatly appreciated.

I turn to the main amendment, Amendment 23. I accept that the police in the armed services are capable of being independent, and indeed in most cases they are—but, as has been shown by recent cases, that has not always been the case, to the enormous damage of the Armed Forces. Therefore, with this amendment, I seek to put the principle and the protections on a clear basis to save future damage.

The Minister asked noble Lords to look at the difference between what is in the Bill and what is in the amendment. On the duties of the provost marshal, the Bill says that he owes

“to the Defence Council, to seek to ensure that all investigations carried out by the tri-service serious crime unit are free from improper interference.”

There is nothing there at all that reflects the proper constitutional position that they should be operationally independent of the military chain of command. That is what is set out in the amendment. I simply do not understand why this fundamental principle of the way in which the police operate in the Army, Navy and Air Force should have second best. It is in their own interests to ensure independence.

Then there is the quibble that you cannot, for some reason, fit a civilian into the structure. I do not begin to understand that. In the cases I did which involved this area, one of the principal reasons why the courts concluded that the Iraq Historic Allegations Team was independent was that it had a civilian head. I therefore do not understand what the objection is, not only for the reasons given by the noble Lord, Lord Thomas of Gresford, namely that civilians bring experience, but because they also bring an outside perspective.

The real issue in this case is the need for statutory protection. Perhaps the Ministry of Defence lawyers take the view that all that is required are the three provisions in the Bill. I accept that the Government want to proceed with the implementation, but our difference of opinion relates to whether Parliament should do its duty and specify this in the legislation and put a proper duty in relation to operational independence into the Bill, with the necessary vital safeguards. Without those safeguards, a duty will not work—or do you take the very narrow view that it is not required?

For the good of Her Majesty’s Armed Forces, we ought to stop speculation about investigations not being independent. We must make sure they are seen to be independent by Parliament itself providing on this occasion, as part of the five-year review, that there are sufficient safeguards for independence. Therefore, for the good of Armed Forces and the service police, I would like to take the opinion of the House on this issue.

Ayes 153, Noes 160.

Division number 3 Armed Forces Bill - Report — Amendment 23

Aye: 153 Members of the House of Lords

No: 160 Members of the House of Lords

Ayes: A-Z by last name

Nos: A-Z by last name

Amendment 23 disagreed.