My Lords, I first thank noble Lords for an interesting and stimulating debate, as ever. I shall endeavour to respond to the points raised. I certainly hope that the fate that befell Admiral Byng, so colourfully described by the noble Lord, Lord Thomas of Gresford, does not befall me, or the proceedings would come to a summary conclusion.
I will first address the points raised by the noble Lord, Lord Coaker, who said, quite correctly, that perception is important. I agree with that, but so is legal exactitude, which is, I accept, tedious to some but none the less absolutely vital in the framing of legislation. I will come to that in a little more detail shortly.
I say to the noble Lords, Lord Coaker and Lord Robertson—who, with the best of intentions, I know, raised the appalling situation of the Kenyan lady —that I am constrained. This is a live investigation in Kenya, and it is sub judice. I can say that the Secretary of State has offered our full co-operation, but it is essentially a Kenyan investigation. We are prepared to offer any co-operation that we can when they request it. We have to let the investigatory process continue.
The noble Lord, Lord Coaker, reverted to the point raised by the noble Lord, Lord Robertson, about the remaining Henriques recommendations. I looked at again at what I said and double-checked where we are. I do not want to be discouraging or disappointing, but I can put my hand on my heart and say that approximately 40 of these recommendations require policy and legal analysis. That is factual, and I cannot accelerate that at the moment, but I am happy to give your Lordships an undertaking that I shall certainly monitor and report back on progress. I hope that will reassure your Lordships that this is not some somnolent process that will fall asleep once Committee stage is over. I am very happy to place that on the record and offer to do that.
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The noble Lord, Lord Coaker, revisited “seek to ensure” as distinct from “ensure”. I am trying to think of the crispest way to try to encapsulate the difference between us. In legal exactitude, these two phrases mean different things. If a Bill says “ensure”, you are placing an absolute duty on whoever is to be the obligee under that obligation in the Bill. That effectively asks an individual to guarantee that there will never be any delay—not even any initial participation in the investigation by the chain of command, whatever the circumstances. In my opening remarks, I described an overseas operational arena in which essential decisions might have to be taken for the safety of our Armed Forces personnel, or to preserve evidence, before the full force of the investigatory police effort could be mounted.
I know that the noble Lord is motivated by the best of intentions, but there is a reason why we cannot accept the absolute nature of “ensure”. We cannot place an obligation on an individual that is beyond the control of the individual to discharge. I gave the illustration to which I referred. While he is absolutely correct that the court of public opinion matters, I humbly suggest that a court of law matters more, which is why we have to be extremely careful about the phrasing we use. There is nothing innovatory about the phrasing. I explained that it adopts language that we have previously used in statute, which achieves desirable consistency; I will respond on that in some detail, because the noble Lord, Lord Thomas of Gresford, also raised that point.
The noble Lord, Lord Coaker, raised the issue of the rank of the provost marshal, as did the noble Lords, Lord Robertson and Lord Thomas of Gresford. Only service personnel can be appointed as provost marshal, as required under Section 365A of the Armed Forces Act 2006. This was an issue in which my noble friend Lord Lancaster was also interested. The expectation is that the deputy will also be a military provost officer. We recognise the value that civilians can add to a unit and we will consider how we can incorporate them.
The noble Lord, Lord Coaker, also raised the matter of the £45 million which was referred to in the Henriques report. For the Committee’s benefit, I clarify that the £45 million was from an internal financial and capability study in 2018. The recommendations from the study were not pursued by the department and were superseded by the service justice system review by Lyons and Murphy. These changes are all about doing the level best to make sure that the service justice system in all respects, and particularly in the investigatory component, is as good as it can be.
The noble Lords, Lord Coaker, Lord Robertson and Lord Thomas of Gresford, raised the issue of rank, which I have briefly covered. Sadly, there have been some quite high-level examples in the public domain where very senior military officers have been investigated, charged and convicted and are now serving sentences. Therefore, I submit that what matters is the strength of the investigatory structure and the capability
and skills of the investigating officers. We have seen from past experience that this can work to very good effect.
The noble Lord, Lord Thomas of Gresford, and my noble friend Lord Lancaster asked about independence and the particular phrasing used in the government amendment. I think the noble Lord, Lord Thomas of Gresford, regards the government amendment as inadequate and sees the statutory consistency as a weakness, because we have used the same language as in previous Armed Forces Acts. Respectfully, I disagree. I think that there is a strength in being consistent because we achieve clarity; people know what these words and phrases mean. I have to say that Sir Richard Henriques explicitly recommended that the new provost marshal should owe the duty on the same terms as the existing duty, so all we are doing is trying to replicate exactly what he suggested.
My noble friend Lord Lancaster also raised an issue about structures and who is accountable to whom. A lot of this work, obviously, is still under consideration. Will more information on the unit be provided? Yes, our officials continue to work on the detail, alongside specialist resource from across the tri-services, and we will provide more information as it emerges. A number of noble Lords sought further information about the unit itself and I thank them for their interest.