Coroners and Justice Bill

My Lords, in moving Amendment 28, I shall also speak to Amendments 29 and 30 in my name and in that of the noble Lord, Lord Thomas of Gresford. In Committee, I explained that I had two points of concern about Clause 12. One was the definition of active service in subsection (6), which relied on Section 8 of the Armed Forces Act 2006. This is a most inappropriate definition to use for those who have been killed on operational service, as Section 8 deals solely with the offence of desertion. The Minister agreed, and he has now proposed a new definition of active service in his Amendment 31. Although I welcome this change of heart, I raised a further point in Committee about this clause. Is it right to attempt to draw a distinction between service personnel who were killed or died of wounds while on active service or in training for active service, and other members of the Armed Forces, whose bodies will be repatriated following violent or unnatural deaths overseas and for whom inquests are required? I remind the House of the Government’s Command Paper 7424, which was published with much acclaim only last year. In this paper, all government departments and devolved Administrations have collectively undertaken to treat fairly all members of the Armed Forces, their families, and veterans. Surely it is a blatant breach of that promise to attempt to draw some dividing line between service personnel who die in one operational theatre and those who die overseas elsewhere. Indeed, the Minister’s letter to me of 22 May, which was placed in the Library, said as much. He wrote: ""The families of service personnel who have died abroad other than on active service are no less deserving of consideration"." In Committee, I proposed amendments similar to Amendments 28, 29 and 30, which would remove references to active service. The Minister resisted my amendments on the grounds that to accept them would, ""pre-empt the outcome of the independent review of the fatal accident inquiry legislation that the noble and learned Lord, Lord Cullen,"—[Official Report, 10/6/09; col. 732.]" was undertaking. I have since spoken to the noble and learned Lord, Lord Cullen, who I am delighted to see on the Bench beside me, and he most considerately wrote me a note for which I am most grateful. I had his permission to pass the content of the note to the Minister, which I did last Wednesday. The Minister will therefore know what the noble and learned Lord, Lord Cullen, said in his note. He pointed out that legislation for the specific purpose of inquiring into the deaths abroad of Scottish members of the Armed Forces was not within the competence of the Scottish Parliament—defence not being a devolved matter, as indicated in paragraph (9) of Schedule 5 to the Scotland Act 1998. The note from the noble and learned Lord, Lord Cullen, is clear. This subject is not within his remit. Indeed, he went on to say that, in view of the comments made by the noble Lord, Lord Bach, about pre-emption, to which I have referred, so far as my amendments are concerned, if they fell within paragraph (9) of Schedule 5 to the Scotland Act, they would have no relevance to his inquiry. In so far as they went beyond paragraph (9), they would not be in conflict with the approach taken by the noble and learned Lord in his review. So, pre-emption there is none. The Minister’s Amendment 31 refers to Section 374 of the Armed Forces Act 2006 with a definition of the word "enemy" to flesh out the meaning of his amendment. This would say that active service means service against all persons engaged in armed operations, against all powers, armed mutineers, armed rebels and armed rioters. But Clause 12(2) goes much wider than active service alone. It includes activities, ""in preparation for, or directly in support of"," and training for active service. I would contend that any service man or woman on duty is involved in training for, preparing for or supporting service against persons engaged in armed operations—against pirates, armed mutineers, rebels or rioters. That is what armed forces do. It seems to me that this clause, with the Minister’s revised definition for "active service" in subsection (6), introduces a distinction without a difference. However, by removing the references to active service in this clause, my amendments seek to correct this and be seen to treat equally fairly families of all members of the Armed Forces who suffer an untimely death overseas on duty, whether as a result of being killed in action, dying of wounds or due to some other mishap which proves fatal and requires an inquest following repatriation of the deceased. This would also accord with the heading for Clauses 12 and 13, Death of service personnel abroad. I understand that Clauses 12 and 13 were rushed in to meet the general concerns of those most affected at the present time of high operational tempo and regrettable casualties. The way in which Clause 12(6) would be revised by Amendment 31, proposed by the noble Lord, Lord Bach, only serves further to highlight the fact that Clause 12 does not appear to meet the requirement to treat all service personnel fairly, nor does it tie in with the heading of this part of the Bill. For the avoidance of doubt, I am fully in support of the unique and caring arrangements being made in Clauses 12 and 13 for the actual handling of inquests into the deaths of service personnel abroad. These introduce flexibility in the location of the inquest in order to meet the wishes of the next of kin of the deceased who want to attend. That is most important and highly desirable. I commend the Government for that approach, but it must clearly be seen to apply to all service personnel. On reflection, I hope that the Minister will accept that the inquiry made by the noble and learned Lord, Lord Cullen, is not being pre-empted. To introduce special arrangements for some classification of casualties in the Armed Forces overseas, but not for others, breaches the thrust of Command 7424 to treat all service personnel and their families fairly. Is this aspect not a defence matter and therefore not devolved to the Scottish Parliament? For the rest of the two clauses about the location of arrangements, both Governments are in accord and have wide public support for this arrangement. I urge the Government to accept my amendment. I beg to move.