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.
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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.