The noble Lord will have read the report and he will be in no doubt, I imagine, about both the extent and the complexity of many of the recommendations. I cannot be drawn into commenting on something where we are still doing the exploratory work to understand what the implications of the recommendations are. To reassure the noble Lord, as I said earlier, we are very positive about this report. It is a huge contribution to how we deal with justice and the service justice system. I beseech the noble Lord to exercise a little patience. I know that his natural interest in these matters, and the avenues available to him to pursue that interest, will ensure that I and the department are kept on our toes.
I was about to speak to Amendments 43, 44 and 66. I turn first to Amendment 43. That seeks to change the wording in government Amendment 42 on the duty of investigative independence for the defence serious crime unit. Government Amendment 42 works by updating the existing duty on the service police currently contained in Section 115A of the Armed Forces Act 2006. The government Amendment provides that the provost marshal for serious crime must
“seek to ensure that all investigations carried out by the tri-service serious crime unit are free from improper interference.”
The term “improper interference” is already defined in Section 115A. It includes any attempt by someone not in the service police to direct an investigation. Amendment 43 would amend the duty so that, rather than seek to ensure that investigations are carried out free from improper interference, the duty will be absolute, placing on the provost marshal a need to guarantee—“to ensure”—that the investigations are operationally independent.
4 pm
It is important that we understand that this is not some idle exercise in semantics. As I have explained, the language in Amendment 42 is based on a similar duty in Section 115A of the Armed Forces Act 2006 that applies to the provost marshals for the three service police forces. In taking this approach, the Government are faithfully following recommendation 7 by Sir Richard Henriques; he importantly recommended that the new provost marshal owe the duty “on the same terms” as the existing duty.
Noble Lords who support the amendment are urging that we change the wording of this existing duty. The Government will resist that endeavour. The wording, which we have deliberately adopted, has been in place since the Armed Forces Act 2011 and has worked well in demonstrating the independence of the service police. If Sir Richard had doubts about it, one would have expected him to have said so. The Government would have concerns about, and would see risk in, changing the language in case it cast doubt on the operation of this provision in the past or in case it casts doubt on the investigative independence of the existing service police forces.
Noble Lords who support the amendment clearly prefer “ensure” to “seek to ensure”. However, it is in the nature of general duties of this kind that this drafting approach is taken. We see this frequently in statute. Although we would expect provost marshals to do everything they can to prevent interference, they do
not have an absolute duty to “ensure” that there is no interference because, quite simply, it would be unrealistic to require them to foresee and forestall each and every attempt at interference. I will try to illustrate that. One of the unique features of the service police, compared to civilian police, is that they may be deployed in a war zone. We may find that operational requirements—for example, ensuring the safety of service personnel—legitimately need to take precedence over investigative priorities. The “seek to ensure” formulation is flexible enough to take account of that environment.
I have looked at Amendment 44 carefully. I do not believe that adding these further Henriques DSCU recommendations to the government amendment is necessary. As we set out in the ministerial Statement on 21 October, and as I have already touched on today, we will be incorporating these recommendations in the work already under way to establish the operating model for the DSCU. To reassure the noble Lord, Lord Robertson, I emphasise that this will include the provision of a victim and witness care unit, the establishment of a strategic policing board as part of the governance structure of the DSCU, and a reporting requirement to Parliament. I am happy to confirm that we are already working towards a DSCU by April 2022.
Although the MoD shares Sir Richard’s ambitions for an increased role for civilians in the DSCU, we assess that there may be legislative implications and restrictions regarding the appointment of a civilian deputy provost marshal. We will therefore give that recommendation further consideration.
As we also set out in the ministerial Statement, we believe that 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 these independent bodies in the first instance.
These are important and complicated matters, and we need to determine whether they can be implemented as proposed by Sir Richard and without the need for legislation. While we will seek to progress them as quickly as possible, I suggest that it is vital that we get them right, and I do not think it would be appropriate or sensible to put a timeline of July 2022 for their implementation.
Lastly, Amendment 66 seeks an early decision—one month after Royal Assent to the Armed Forces 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, to require that we lay a report before Parliament setting out a plan and timeline for establishing the unit by July 2021.
As the noble Lord, Lord Robertson, has already indicated, I understand your Lordships’ interest and enthusiasm for early progress. However, noble Lords will appreciate, given the short amount of time that the department has had to consider Sir Richard’s report, and the fact that we have so far been able to undertake only a light-touch analysis of some of his recommendations, why I urge a little patience.
In respect of the recommendations to establish a defence representation unit, while we absolutely agree with the principle of ensuring appropriate legal advice and support to individuals under investigation, we are not yet in a position to know whether we can accept the recommendations as presented. Further careful consideration will be required to determine the most appropriate and effective way of delivering this support, and I would not wish to time-bind that work.
I hope that noble Lords are reassured by the approach we are taking to Henriques, and therefore I ask them not to press their amendments. In the same vein, I formally move the amendment in my name.