Grand Committee
Armed Forces Bill
(8 years, 2 months ago)
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The Deputy Chairman of Committees (Baroness Stedman-Scott) (Con)
My Lords, welcome to the Grand Committee. If there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bell rings and resume after 10 minutes.
Lord Thomas of Gresford
“Membership of the Court Martial
(1) Section 155 of the Armed Forces Act 2006 (constitution of the Court Martial) is amended as follows.(2) In subsection (3)(b), leave out from “rest” to end of line and insert “may be drawn from all ranks who are qualified for membership and not ineligible under section 157.”(3) In subsection (4) at end insert “which may, in particular, provide that the persons specified in subsection (1)(b) be drawn from each and every branch of the armed services.””
Lord Thomas of Gresford (LD)
My Lords, I start by reminding your Lordships that at Second Reading I expressed my concern about the reputational damage that might be done to the forces’ disciplinary service by the possibility of future cases attracting the sort of adverse publicity that has occurred in the past. When we dealt with the 2006 Act we sorted out many of the problems that then existed, and the system was completely changed so as to reflect decisions made in the European Court of Human Rights about fair trial. I had no concerns about Sections 1 to 39 of the Act, which dealt with what I regard as disciplinary offences—indeed, “discipline” and “offences” are headings in Part 1 of the Armed Forces Act 2006. They might be offences such as assisting an enemy, mutiny, desertion, insubordination, neglect of duty, offences against service justice, hazarding of ships and so on. To my mind, those things were satisfactorily dealt with at that time.
However, Section 42 of the Act was concerned with criminal conduct. Repeating provisions in earlier service disciplinary Acts, it effectively made an ordinary criminal offence part of the service discipline system, so that:
“A person subject to service law, or a civilian subject to service discipline, commits an offence … if he does any act that … is punishable by the law of England and Wales; or … if done in England or Wales, would be so punishable”.
In other words, the whole corpus of the criminal law that is used in our ordinary criminal courts was imported into the service disciplinary system.
At that time, I moved certain amendments having regard to Section 42 which I hoped would mirror the proceedings that happen in the Crown Courts of this country when such criminal offences come before those courts. I do not apologise for repeating some of those amendments today.
We were concerned particularly about justice between state, the prosecution and the defendant, but there is another element in it which I think was of less significance at that time than it is now; that is, the position of victims. We have seen such adverse publicity—including, for example, the Sergeant Blackman case—which is damaging to the service disciplinary procedures. It is very often proceedings or publicity that is sought by the victims of various offences.
I want to take a step back to look at the police and the banks in this context. As an example, PC Harwood was prosecuted for manslaughter in the Old Bailey for the death of Ian Tomlinson, the person whom he struck in a demonstration in the City of London in 2009. If that prosecution had been carried out by senior officers in the police and they made the decision that he was not guilty of the manslaughter offence—as he was found by an ordinary jury in the Old Bailey—I am sure that there would have been very great public concern. Had the officers who were concerned with the death of Jean Charles de Menezes in 2005 been prosecuted before a panel of senior police officers, there would have been a public outcry.
Some years ago under the Labour Government we were concerned with attacks upon the jury system. There was a strong call at that time for there to be special juries consisting of City people—accountants, bankers—who would understand the workings of the City in a way which an ordinary jury, it was argued, could not possibly comprehend. That was before the 2008 crash. Bankers have become rather less popular than they were in those days. One can imagine the public outcry that would have followed if bankers had been asked to determine the guilt or innocence, the honesty or dishonesty, of one of their own kind.
I know that there are differences, but I use the police and bankers to illustrate public perceptions of justice that is carried out by the services. I do not agree that there is injustice, but I suggest that there is a lack of confidence among the public and victims regarding the way that their concerns may be treated in the military court martial system. I declare an interest as the chairman of the Association of Military Court Advocates. I have had experience of serious murder cases and so on in the services and I have every confidence in the judges and those who appear in those court martial courts. However, I am concerned about public perception.
There are two ways in which one can approach this. One can say, let us change the system so as to make it closer to the Crown Court. Or one can say, take the serious offences away from the court martial system altogether. I am following both as alternatives in the amendments I am putting forward. I am now speaking to Amendments 1, 2 and 3 and draw your Lordships’ attention to them.
The first amendment would widen the pool of those who can sit on the panel that decides guilt or innocence in a court martial. Instead of having officers and perhaps one warrant officer—the most senior of the other ranks—sitting on a court martial as at present, it should be open to all ranks. There are those who are used to looking at the forces as a family with a familial feeling towards its members and who feel that officers are responsible for their men, as they know them and they know the circumstances, and that they should be the people who decide and so on. I know that that is the system but there is nothing particularly revolutionary about having all ranks sitting on courts martial. Although there are criticisms of the American system of courts martial, voiced in particular by my opposite number in the United States and the national military justice organisation that he heads, nevertheless in 1952 it was decided that other ranks could sit on courts martial where a defendant asked for that.
It seems to me that the time has come to widen to other ranks the people who can appear in courts martial, so Amendment 2 says:
“A person is qualified for membership of the Court Martial if he or she is a serving member of the armed forces and is subject to service law”.
It does not have to be an officer or a warrant officer; people can be drawn from a wider pool. It is my view that that would give rather more public confidence in the system of courts martial than the top-down system that we have at the moment, and have always had, of officers and the warrant officer sitting in judgment.
Noble Lords will see that Amendment 3 deals with another aspect. Whereas in the ordinary courts of this country where we have a jury sitting, guilt is established either by the unanimous verdict of the jury or by a majority consisting of no less than 10:2 or, if the jury has dropped to 11 members, 9:2, the system in the Armed Forces is, and always has been, that it is determined by a simple majority. Therefore, if five sit on the panel, a person can be found guilty by 3:2, and, if seven sit, it can be 4:3. The way in which the panel votes is never made public. It is never said that this is a majority verdict; a simple majority verdict is returned. Consequently, in Amendment 3 I suggest that we should change the system and that, where there are not fewer than seven members of the court, five should agree on the finding, and, where there are five members of the court, four should agree on the finding.
I repeat that the current position is that the judge advocate has no vote. If the finding is one of guilt, the president should state in open court the numbers who agreed and dissented from the finding and the panel should have time, as does an ordinary jury, to consider reaching a unanimous verdict before coming to its conclusion. At the moment, it is theoretically possible for the panel to retire and for a verdict by a simple majority to be passed immediately, with the panel returning to court and delivering the verdict. If the verdict is one of guilt, the defendant does not know that there were those who did not accept the finding.
New subsection (5) proposed under proposed new subsection (2) in Amendment 3 is also important. Currently, the panel with the judge advocate taking a part determines the sentence, but we have got to a situation where sentencing is so complex that I suggest that the judge advocate alone should pass the sentence—there are so many options and precedents that it should not be decided by the panel—after consultation with the members of the court martial.
Earl Attlee
“( ) For subsection 1(b) substitute—“(b) 12 other persons (“lay members”).”( ) For subsection 2(a) substitute—“(a) 12 lay members; or”.”
Earl Attlee (Con)
My Lords, I remind the Committee that I still have an interest as I will be commissioned until October, when I have to retire.
At Second Reading, the noble Lord, Lord Thomas of Gresford, suggested that we needed to look at the composition and operation of the court martial. The Minister said that it would be a big change to alter these arrangements. However, that is why we have a quinquennial review. The MoD can quite easily change the court martial rules but bigger changes are a matter for us in Parliament.
One of the problems we have with some of the suggestions from the noble Lord, Lord Thomas of Gresford, is that we have very little idea of how either a civil jury or a court martial board works because research is illegal, except for certain criminal investigations. Therefore, the Minister cannot prove that the system is as good as we can make it, and the noble Lord, Lord Thomas of Gresford, cannot show that it is defective—we do not know how the system operates. The difficulty is particularly relevant to the noble Lord’s amendment on majority verdicts. The Committee needs to remember that the board of a court martial is not a jury; it is composed of officers and warrant officers superior in rank to the defendant. My Amendment 11 proposes to permit closely controlled research into how the board works. I envisage that this would take place soon after all normal appeal rights had been exhausted or were time-expired. Members of the board would not be told in advance that they would be contributing to the research, and there would have to be numerous other protections.
In Amendment 1, the noble Lord, Lord Thomas, proposes that the board of a court martial be composed of “all ranks”. Presumably, if the amended is accepted, court martial boards would provide that members must be at least one rank superior to the accused. Interestingly, I do not have a problem with his proposal, provided that the noble Lord recognises that he is moving away from a very select panel who have already been chosen as officers and warrant officers on the basis of a whole range of qualities that other ranks do not necessarily possess. If he wants to do that, I think we will need a military jury of 12. They will still understand the military context, which is surely the reason we have a military court martial, and the increased number I am suggesting would make up for any reduction in intellectual horsepower. I would suggest that on average a military jury could be of better quality and more suited to these cases than a civilian one, and therefore an all-ranks military jury could be just as reliable as a civil jury.
However, there are some snags. I suspect that the noble Lord feels that an all-ranks board would be more forgiving and understanding. I am not convinced. For instance, I fear that an all-ranks board could be swayed by the accused appearing to be a rotten soldier when military jury members are sure that they are not. The officers on the board of a court martial would put that to one side and study it with much more intellectual rigour. I suspect that the noble Lord would still have some officers on the board or the jury, but I cannot really envisage a junior NCO asking searching questions to test an officer’s position on a case, even though a large proportion would undoubtedly be able to do so. A warrant officer certainly would, which is why we already have them on the board.
Finally I turn to the noble Lord’s amendment concerning who determines the sentence. If we went for a military jury of 12, this would be merely a consequential change. Again, I suspect that the noble Lord, Lord Thomas, believes that the judge advocate would be more lenient. I have to tell the Committee that I have heard, although I should not have, that on one occasion the board of a court martial in Germany dealing with an assault case regretted not being able to consider a not-guilty verdict because the accused pleaded guilty. Nevertheless, the judge advocate was recommending quite severe penalties which the board had to resist strongly. In any case, complex though the matters are, the judge advocate tells the members of the board of the court martial what their options are. The sentence is internally reviewed and the case can then be taken to the court martial appeals court, so it is not clear to me what can go wrong.
Lastly, I do not have a view on the noble Lord’s suggestions about which offences should be triable only in a civilian court.
Lord Tunnicliffe (Lab)
My Lords, the first two groups for debate today discuss the generality of military law. The first group relates to how an individual is found guilty and sentenced, while the second group deals with the extent and scope of the body of military law. I make the point because I take a very different view about the extent to which we should consider changing the two groups, and hence these groups of amendments. We will come on to debate the second group, but I approach the first group from the point of view of the rights of the citizen who, as a member of the Armed Forces, has become the accused. I find the arguments put forward by the noble Lord, Lord Thomas of Gresford, persuasive. With that individual having committed an offence and gone into a process which is now so analogous to that of a civil court, I find quite strong the idea that the individual should have the right to a trial that is analogous to that in a civil court.
The amendments before us would, first, create more of a jury of the individual’s peers and, secondly, produce a voting system that is much closer to that of a Crown Court, which seeks unanimity. The proposals put by the noble Lord, Lord Thomas, are close to unanimity in their form. The reforms the noble Lord is suggesting would mean that the rights of the individual who has been accused would become increasingly similar to those of a normal civilian in a criminal case. Since 2006 we have developed the three bodies of law, brought them together and introduced civilian best practice—there is probably a better way of putting that, but it is essentially what we have done—so I find this next step very attractive.
As an alternative or as a supplement, the noble Earl, Lord Attlee, has suggested a minimum number of 12 on the board. That is an interesting suggestion which again is in step towards achieving similarity, and I would guess that he has suggested the figure on the basis that while such a revolutionary change might not appeal to the Government, there is also the idea of an inquiry to see how courts martial work to see if that could be a step towards reform.
Clearly, and I have sat on that side, these amendments will not work and there will be something wrong with them. However, that is irrelevant. What matters is: should we make steps in this direction using this quinquennial Act? We do it only every five years and I would find unconvincing the argument that it is not appropriate. I am putting a burden on the Government, today and perhaps in subsequent meetings and in writing, to argue the case for why we should not move in the general direction of these amendments and make the whole process for the defendant more analogous to that of a civil court.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, I am very conscious of the close interest taken by the noble Lord, Lord Thomas of Gresford, and my noble friend Lord Attlee, as well as by the noble Lord, Lord Tunnicliffe, in the operation of the court martial and I welcome the opportunity to discuss these matters today. The first amendment of the noble Lord, Lord Thomas, would amend Section 155 of the Armed Forces Act 2006, which makes provision with respect to the constitution of the court martial. It provides that only officers or warrant officers may be lay members of the court martial. As the noble Lord explained, Amendment 1 would change this; it would also provide that court martial rules may provide that lay members must,
“be drawn from each and every branch of the armed services”.
The noble Lord’s next amendment, Amendment 2, would insert a new Section 155A into the 2006 Act. The effect of proposed new Section 155A would be to allow serving personnel of any rank to be lay members.
The court martial consists of a judge advocate and between three and seven lay members. Lay members of a court martial, who are also referred to as the panel or the board, have a role in relation to findings on a charge and sentencing. The lay members for any proceedings are specified by or on behalf of the court administration officer. Only commissioned officers and warrant officers may be lay members. Amendments 1 and 2 would change this, as I have said, by allowing members of the Armed Forces of any rank to be lay members.
It will not surprise the Committee to hear that I am resistant to the proposals that the noble Lord, Lord Thomas, has put forward. The first point I wish to make in response is that the existing rules governing lay membership of the court martial result from the fact that the court martial is part of an overall system of justice and discipline. Those rules recognise the importance of experience of command and the exercise of service discipline at a sufficiently high level to enable lay members to assess the actions of those who appear before them in the court martial in the appropriate command and disciplinary context. The role of a lay member in the court martial differs from that of a juror in a Crown Court trial. In the Crown Court, the jury’s role is limited to findings of fact: sentencing is a matter solely for the judge. In the court martial, the lay members and the judge advocate vote on the sentence. In considering sentencing, they must have regard to the maintenance of discipline, so must have a strong understanding of what things affect discipline and what things do not.
All service courts have to apply the statutory principles set out in the Armed Forces Act 2006 as to the purpose of sentencing. These are closely based on the civilian sentencing principles but include, in addition, “the maintenance of discipline” and the reduction of “service offences”—that is, both service discipline offences, such as looting or absence without leave, and criminal offences.
These principles reflect four special aspects related to the service justice system. The first is the existence of disciplinary offences unknown to the general criminal law, such as absence without leave. The second is the fact that the military context of an offence may be relevant to sentencing—for example, an assault against a superior or an inferior may make an offence more serious, and then there is the well-known naval concern about the effect on morale and discipline of mess-deck theft.
Lord West of Spithead (Lab)
My Lords, if I may interject, I have been a president of a court martial board, I have sat on a court martial board and indeed I have been court-martialled, which most people here probably have not. What I wanted to say was that I agree completely with what the Minister has been saying, and it is really important. You could answer the question with the discipline aspect. The knowledge of what instils discipline, and what is important for it, is one of the crucial aspects of this, which makes it different from a case of someone being accused of murder, for example. So much is to do with the application of discipline.
Earl Howe
The noble Lord, as so often, has hit the nail right on the head. What he said encapsulates much of what I have been saying, and I am grateful to him.
Amendment 1 would enable court martial rules to provide that members must be drawn from each and every branch of the armed services. The current law allows for the appointment of members of any of the three services to a court martial panel. Before the 2006 Act, when each of the three services had its own separate system of service discipline, the panel almost always consisted of members of the same service as the accused. The current practice is to appoint lay members, the majority of whom come from the same service as the accused, but this is not set down in law. There is therefore nothing in law to prevent lay members in any particular case being drawn from any branch of the armed services, so I suggest it would not be necessary to amend legislation to achieve the effect required.
The composition of the panel was considered by the House of Commons Select Committee during the passage of the Bill that became the 2006 Act. General Sir Mike Jackson said to the committee at the time:
“For me the default setting would be that the soldier … on the face of it will be more comfortable being tried by members of his own Service”.
The committee considered that where a mixed panel of lay members was appointed, the senior lay member and the majority of members should come from the same service as the accused.
The noble Lord’s Amendment 3, on court martial findings and sentence, would change the law governing decisions of the court martial on findings of guilt or innocence, and sentence. The court martial system allows conviction or acquittal by a simple majority of the lay members of the court martial, with no need for a retrial in the event of a lack of unanimity or a qualified majority.
The judge advocate does not vote on findings of guilt or innocence. In the case of an equality of votes on the finding, the court must acquit the defendant. The lay members are directed, if at all possible, to reach a unanimous verdict, and to decide by a majority only if they cannot all agree. That provides a considerable safeguard against the lay members moving too easily to a majority decision. As the noble Lord, Lord Thomas, indicated, this is a long-established process: the service discipline Acts of the 1950s, which preceded the Armed Forces Act 2006, also provided for majority decisions at court martial. The great advantage of reaching a decision by majority is that it avoids a “hung jury”: there is no need for a retrial in the event of a lack of unanimity or a qualified majority.
The Crown Court process is that unanimity or—with the judge’s permission—a qualified majority is required for any verdict: guilty or not guilty. If unanimity—or a qualified majority—is not achieved, there is a “hung jury”, and this produces a retrial, not an acquittal. Importantly, under the existing court martial process, the accused may be convicted by a simple majority, but he or she may also be acquitted by a simple majority. In the Crown Court, most of a jury may wish to acquit an accused but cannot achieve the necessary unanimity or qualified majority, yet the accused may be retried by a new jury, who may convict.
The court martial process also has the advantage that it allows a decision to be made without it being apparent whether the verdict is unanimous or by majority. As the panel must keep its voting secret and is not required to seek the court’s permission for a majority decision, there are no lingering doubts outside the court about whether an acquittal was correct. It is for these reasons that proposals for unanimous or qualified majority verdicts in the court martial have up to now been rejected.
My noble friend Lord Attlee suggested that we could not show that the current system is satisfactory. The Government have been successful in establishing both in the European Court of Human Rights and in the civilian courts that the court martial system is in principle safe, independent and impartial. The current system for majority verdicts has been considered twice by the Court Martial Appeal Court in the last five years and was on both occasions held to be fair and safe. The Court Martial Appeal Court, which is made up of the same judges as sit in the civilian Court of Appeal, has held that there is no ground for deciding that a verdict by a simple majority of the lay members of a court martial is inherently unfair or unsafe. They noted, among other points, that the overwhelming majority of criminal trials in England and Wales are decided in magistrates’ courts and the process of simple majority verdicts is long established in those courts.
The issue of majority verdicts was raised by Sergeant Blackman—as was referred to by the noble Lord, Lord Thomas—in his appeal against conviction in 2014. He argued that it was discriminatory to apply trial by the court martial rather than trial by jury in the Crown Court because the court martial offered less protection to the accused than jury trial. The Court Martial Appeal Court again held that trial by the court martial on the basis of a simple majority was not unsafe or unfair; moreover it was not discriminatory.
I should add that Amendment 3 would make very different provision in the service system from that in the criminal justice system if it is the noble Lord’s intention that there must be a panel of at least five lay members in all cases in the court martial, even in cases equivalent to those which may be tried in the civilian system by a single magistrate or three lay magistrates, who may make decisions by simple majority. That difference in provision would in one respect be magnified yet further by the amendment tabled by my noble friend Lord Attlee to increase the size of the panel of lay members on court martial cases to 12.
Amendment 3 would also expose the deliberations of the lay members of the court martial. Proposed new subsection (3) would require the president of the lay members to state in open court the number of panel members dissenting where the majority finding is that the defendant is guilty. One important safeguard of the independence of the lay members of a court martial is the confidentiality of their deliberations. The question whether court martial verdicts are unanimous or by majority is not asked or investigated at all. This safeguard is in place to produce a fair trial process. For this reason, the Armed Forces Act 2006 makes provision about offences relating to members of the court martial and their deliberations. It contains provisions which mirror those in the Criminal Justice and Courts Act 2015 which apply to jurors in the Crown Court. Under these provisions, it is an offence for a person intentionally to disclose information about statements made, opinions expressed, arguments advanced or votes cast by members of the court martial for proceedings in the course of their deliberations. It is also an offence to solicit or obtain such information. This is subject to exceptions but these are very limited. For example, the offence is not committed where information is disclosed for the purposes of an investigation into whether an offence of contempt of court has been committed by, or in relation to, a lay member.
In the Government’s view, the confidentiality of the deliberations of lay members should not be compromised unless there is a compelling case for doing so, such as for the purposes of an investigation into whether an offence of contempt of court has been committed. We are not convinced that there is a compelling case for requiring voting figures to be disclosed.
The effect of the proposed new subsection (4) would appear to be to expose whether conviction or acquittal was unanimous or by majority. In our view, it should never be known that a defendant has been acquitted by a majority decision. Consistent with the position which applies with jury verdicts in the Crown Court, we think that it would be wrong in principle for any request to be made of the lay members which identifies an acquittal by a majority where the defendant is acquitted. The acquitted defendant should not be exposed to public ignominy consequent on the recording of the fact that one or more lay members was convinced of his or her guilt. The same arguments may be made in response to my noble friend Lord Attlee’s Amendment 11, which would make provision for academic research into the workings of the board of lay members in court martial cases. We are not, therefore, convinced that there is a compelling case for compromising the confidentiality of the deliberations of lay members by allowing research of the kind proposed by this amendment.
Returning to Amendment 3, another effect of this amendment would be to change the role of the lay members in court martial trials. In response to Amendments 1 and 2, I explained how the role of a lay member in the court martial differs from that of a juror in a Crown Court trial. In the Crown Court, the jury’s role is limited to findings of fact and sentencing is a matter solely for the judge; in the court martial, the lay members and the judge advocate vote on the sentence. In the case of an equality of votes on the sentence, the judge advocate has a casting vote. The judge advocate advises the lay members on the appropriate sentencing guidelines for the offence.
Proposed new subsection (5) in Amendment 3 would change this by making the determination of sentence a matter for the judge advocate alone, although he or she would be required to consult the lay members. We would see that change as an erosion of an important difference between the civilian criminal justice system and the service justice system. The military context and service experience should be considered during sentencing as well as in findings of guilt or innocence. I submit that the input from the board members on sentencing is thus very important.
As I explained earlier, the existing provisions governing sentencing reflect the fact that the court martial is part of an overall system of justice and discipline. I spoke of how all service courts must apply statutory principles set out in the Armed Forces Act 2006 as to the purpose of sentencing. These include “the maintenance of discipline” and “the reduction of service offences”. These principles reflect special aspects relating to the service justice system, which explains why there is direct involvement of the panel in sentencing, and I remind noble Lords of those factors that I listed earlier.
Earl Attlee
My Lords, I am grateful to the Minister for the response to my Amendment 1A. On the point about maintaining discipline, I am not convinced that that would be a problem, especially if the other ranks were no lower than full corporal or equivalent, because they would have a stake in the maintenance of discipline as well. After all, a civilian jury is handling the same problem: they want to discipline other members of society for things that they have done wrong. Therefore, I do not find the maintenance of discipline—
Lord West of Spithead
It is very different from civil society. The whole structure of discipline within the military is, I am afraid, very different. That surely is one of the key points: it is people who really understand discipline, how it is applied and have knowledge of it over many years who are actually making judgments, because most of the cases relate to that disciplinary structure. I know that other amendments are looking at whether courts martial should cover other things, which might be another issue. However, in terms of discipline, civil society is very different from military society.
Earl Attlee
My Lords, I absolutely agree with the noble Lord—I almost said the noble and gallant Lord; he is noble and gallant, but not technically. My slight worry about the amendment proposed by the noble Lord, Lord Thomas, is that a full corporal would be less understanding and perhaps take a much tougher view than an officer. I am not convinced that the noble Lord is wrong on the argument of the maintenance of discipline, but I will leave the main attack to the noble Lord, Lord Thomas of Gresford, because he is far more capable than I am. I beg leave to withdraw my amendment.
Lord Thomas of Gresford
My Lords, I am most grateful to the Minister for his lengthy and very careful response to what I have put forward. I was very amused to learn that rules had been passed that court martial panels may be drawn from across the services. When I proposed that precise amendment to what became the 2006 Act, I was seized by three noble and gallant Lords in the corridor, one of whom said that I should be shot for making such a suggestion.
Lord Thomas of Gresford
I am sure that the noble Lord, Lord West, would have added a keel-hauling or something of that nature.
I am grateful to the noble Lord, Lord Tunnicliffe, for his support for my amendments. No doubt we will have some fruitful discussion on a way forward. I agree with the noble Earl, Lord Attlee, that an investigation into how court martial panels deliberate would be apposite; it is a good suggestion. There are all sorts of problems around it, and if the public do not have confidence in the court martial system, which is what I believe and the thrust of what I am saying—that although I personally have confidence, the public do not—such an investigation would in one way or the other be very good.
However, the noble Earl may have misread my amendments. I am not looking for leniency. I have no reason to suppose that court martial panels that consisted of other ranks would be more lenient; I rather agree with him that they could well be tougher. What such panels would be is more understanding. They would appreciate things more. I know that the Armed Forces regard themselves as a family and I concede to what the noble Lord, Lord West, has said, but there is a gap in understanding between the other ranks and the officers of what motivates people. That is where an extended panel would be useful, helpful and more just. It is not about leniency at all. The noble Earl should not think that I am a particularly lenient person. I have sat as a judge and prosecuted many times, and leniency is certainly not a part of that.
I tend towards the thrust of the noble Earl’s comments, supported by the noble Lord, Lord West, that it is all about discipline. The fact is that if anyone is convicted at court martial of a serious offence, he is out and he loses his pension rights. It is not a question of discipline for a serious offence. As I indicated at the beginning, I have no objection to the court martial system in relation to Sections 1 to 39 of the 2006 Act, which cover mutiny, absence without leave, desertion and issues of that sort. But where I think the court martial system lacks public confidence is when it deals with other criminal offences which are normally dealt with in the Crown Court. The maintenance of discipline is not particularly apposite, in my experience. People who are convicted of serious offences, as I have said, are thrown out.
Many of the Minister’s remarks were addressed to the issue of sentencing. I do not believe that the sentences of the courts martial are particularly wayward, as we have a very good system of judge advocates who assist them in their deliberations. But the noble Earl will know that the current Judge Advocate-General has argued many times—as he did in 2006 before a committee of the House of Commons—that sentencing should be a matter for a professional judge, as judge advocates are, and not left to a panel of officers for whom it may well be their very first meeting with the criminal law in any context. They are not experts. They are appointed to a court martial board—perhaps the noble Lord, Lord West, has more experience of courts martial than most people, from all points of view—but most who sit on a panel do it perhaps once or twice. The president of the court is a more permanent official, of course, but a judge advocate is a professional judge who goes on training course after training course, sits in the Crown Court when not sitting as a judge advocate and has the fullest experience of sentencing and what is appropriate in a particular case. I do not suggest that he should sentence when uninformed himself, nor does the Judge Advocate-General, but that he should consult the members of the panel, listen to their views and take into account the maintenance of discipline, if that is what is required in the case.
Earl Attlee
My Lords, I am not quite sure why the panel should go outside the guidance of the judge advocate. For me, the noble Lord, Lord Thomas, has not produced a convincing case why it should do that. Why would it not adhere to the advice of the judge advocate because, as the noble Lord told the Committee, it is very good advice?
Lord Thomas of Gresford
I am not going to recount anecdotes but it is not necessary for the panel to follow the advice of the judge advocate who is sitting in a particular case if it chooses not to do so. Very often when a person is found guilty, the sentence may not be obvious. It may be a choice between various courses such as imprisonment, a sentence that does not involve imprisonment, or sometimes whether someone should go back to Colchester for retraining—a disciplinary approach—so there are different possibilities.
Earl Attlee
My Lords, surely the choice between prison and detention—in other words, “soldier on”—is a purely military one, which means that the officers on the panel are best placed to make that judgment of whether they can keep the serviceman in. In fact, some who go off for a period of detention turn out to be very good servicemen later on, as I am sure the noble Lord recognises. This is a purely military decision.
Lord Thomas of Gresford
I am not suggesting that the judge advocate should act entirely without the advice given to him by the panel. But where should the responsibility lie? That is the issue. I do not think that responsibility for sentencing—a highly complex and professional job for which people train for years, first as barristers or solicitors and then as judges—should be in the hands of people who have in all probability never been in a criminal court in their lives. Suddenly, they are faced with a particular problem and may have all sorts of views about it. Nor should it be thought that intellect and intelligence rest only with the officer class, as the noble Earl suggested. That is not necessarily so. Sitting on issues of fact, a panel composed across ranks would come to a better and safer conclusion which is more acceptable to the public. We cannot go on having demonstrations outside this House by present and retired members of the Armed Forces against the verdicts and findings of courts martial. You do not see that happening with Crown Courts but you see it with courts martial, and that cannot continue. I am concerned about the reputational damage to the services that such scenes show.
I will read all the detail of the Minister’s speech and come back to him about it but one or two points arose. For example, he stressed that a simple majority means that there is no need for a retrial. That may not be a very good thing. It may be that if a significant proportion of a panel hearing a case are not satisfied with the guilt of the defendant, there should be a retrial. The case should be put before the court and heard again. Retrials happen, not all that often, when juries are unable to reach a verdict in the Crown Court. They do not follow as of law; it is a question of the discretion of the prosecutor. I have stopped prosecutions after a jury had disagreed. “There is no need for a retrial” is not a mantra which sits very well with the Ministry of Defence.
Lord Thomas of Gresford
“Restrictions on trial by Courts Martial
(1) Section 50 of the Armed Forces Act 2006 (jurisdiction of the Court Martial) is amended as follows.(2) In subsection (1) at end insert “save for—(a) murder;(b) manslaughter;(c) any offence under the Sexual Offences Act 2003;(d) any offence where the courts of any part of the United Kingdom have extra-territorial jurisdiction to try, determine or punish that offence committed abroad.””
Lord Thomas of Gresford
In moving this amendment, I will couple it with consideration of Amendments 15 and 16.
Perhaps I may go first to Amendment 15, which seeks to extend extraterritorial jurisdiction in sexual offences. Since 2006, the problem concerning sexual offences has come very much more to the fore in this country and elsewhere. Some 18 months ago, I gave evidence to a committee set up by the Department of Defense in Washington where precisely this issue was being considered. My purpose there was to outline the system of court martial in this country, specifically in dealing with sexual offences. I and the Director of Service Prosecutions, and one or two other experts in the field, gave evidence about the British system. The following day, no fewer than 24 generals and above—I am not quite sure what the term is—were giving evidence to that committee. They were headed by the chief of the general staff of the United States. Unsurprisingly, the committee came out in favour of the generals and not in favour of the British system of court martial.
Sexual offences are a matter where there is not, at the moment, extraterritorial jurisdiction. Amendment 15 has been tabled simply to give to the ordinary courts in this country—the Crown Courts—the jurisdiction, if my Amendment 4 were accepted, to deal with sexual offences in this country. It has no other purpose, so the important amendment is Amendment 4.
Prior to the 2006 Act, courts martial in this country had no jurisdiction to try cases of murder or manslaughter within the United Kingdom. Courts martial could try such cases if they were sitting abroad but not in this country. One of the amendments to the system made in 2006 was to give courts martial sitting in this country jurisdiction over murder and manslaughter.
The four types of offences that I have set out in subsection (2) of the new clause proposed in Amendment 4 are the most serious in the calendar. Murder and manslaughter are obvious. The offences under the Sexual Offences Act to which I have referred—I quoted specific clauses from the Sexual Offences Act 2003—are given extraterritorial jurisdiction by my Amendment 15 so that they can come before the courts of this country under Amendment 4.
Subsection (2)(d) of the proposed new clause deals with war crimes—torture and matters of that sort—where there is existing extraterritorial jurisdiction. I have been involved in a number of murder cases that have occurred abroad, in Iraq and Germany, and to my mind they have been unsatisfactory. I do not quibble with the results but I find it unsatisfactory that those trials should be by court martial. We are dealing with the most serious of cases—those that cause the greatest problems for the public—where public perception is either, if a person is acquitted, that he would be acquitted by fellow members of the armed services or, if he is convicted, that the officers have convicted him for murder whereas a British jury would not have done so. That is the thrust of the campaign about Sergeant Blackman, but there have been other cases where similar feelings have been expressed by the public.
I think that we have come to the end of trying these cases by courts martial. If a murder happens abroad—in Afghanistan, Iraq or Germany—the case is brought back to this country. Cases have not been brought back from Germany because we have been in Germany but we are retreating from there. Our Armed Forces are pulling back in November, so we can forget about that. The case of Martin, to which I referred at Second Reading, is a case in point. The 17 year-old son of a soldier—not a soldier but the son of a soldier—was brought back to this country, kept in Colchester prison and returned to be tried for murder in Germany by a court martial. Although the House of Lords Judicial Committee could not interfere as an abuse of process, as I said in my Second Reading speech, the European Court of Human Rights said that the trial was not fair. We cannot have that.
Let me go back a little. Courts martial abroad could try cases of murder and manslaughter because of the difficulty of travel. Back in the 19th century, if troops were deployed abroad, it would be quite impossible to hold somebody for trial by the civil courts here until such time as the forces returned to this country. Consequently, courts martial were necessary for trying murder and manslaughter abroad rather than having local courts do it, where the ability of the defendant to understand what was going on—never mind the quality of the justice proffered—was always an issue. That is not the case now. The practice is to bring them home and to try people accused in Iraq of murder, as in the case of Baha Mousa, which was tried in Bulford, or the case of the paratroopers who were tried at Colchester, or the Bread Basket case, which was tried in this country. The practice in serious cases is to bring people back. Where we are dealing with sexual offences, which are extremely delicate and difficult, and today attract sentences of up to 35 years, those too should be in the ordinary civil courts of this country before an ordinary jury.
I do not accept that an ordinary jury trying a military case is incapable of understanding the ethos, aura or context in which a particular offence has been committed. Juries every day may be trying a person for murder in a context with which they are completely unfamiliar. Whether it is an incident in the back streets of Birmingham or a fraud involving the City, juries cope. It is the duty of the prosecution in the case so to clarify the issues and the context that a jury is fully aware of the significance of the evidence that is put before it.
Things have changed. Juries can be really quite different. Not so long ago in Southwark Crown Court, for example, it turned out that a member of the jury was the sister of a High Court judge and of a Member of this House, and her father had been a Home Secretary. We did not know this; it just slipped out at the end of the case. Juries are an amazing cross-section of people who represent people and who each contribute to the decision that is taken. I have every confidence in Crown Court juries. Serious cases should be brought back and tried here. That is the purpose of my amendments.
However, Amendment 16 is different, as it is an alternative. If my submissions to the Committee are not acceptable to the Government, they ought to consider my Amendment 16 as an alternative. This is where a person who is alleged to have committed a service offence when on active service in operational circumstances can elect to be tried in the ordinary courts of this country. What is the purpose of that? The main purpose—really the only purpose—is that people and the media cannot criticise a Crown Court jury or, if the person has decided that he wishes to be tried by court martial but has been given the chance of a trial by the Crown Court, the system cannot be criticised for failing that individual and giving him the justice that he seeks. Amendment 16 contains an alternative approach that an accused person could elect to be tried in a civilian court. That would remove much of the sting of the criticism, which, as the Committee has heard, is my concern.
Lord Hope of Craighead (CB)
My Lords, I would add a word to what the noble Lord, Lord Thomas of Gresford, has said, mainly because he mentioned my name at Second Reading. I am afraid that this is one of two judgments for which I was responsible. He has been kind enough to say that this judgment is not subject to criticism on the grounds on which it was made. He summarised it quite accurately as the case of a civilian, a 17 year-old boy in Germany who was, I think, the son of a serviceman, and because of that was subject to military discipline in Germany. The noble Lord has narrated exactly the circumstances whereby the civilian spent time in Colchester. I think that he was sent back for trial by court martial in Germany.
My point—and the Minister may already have this in mind—is that one is dealing with a crime committed in another country. In the case of Germany, there is a very active and much-respected criminal justice system. The Germans might well have wanted to assert themselves, as this was a crime committed on their territory. However, under arrangements which we had in place, it was possible for us to say that this was a military matter which could be dealt with under our court martial system. The Germans were prepared to concede jurisdiction to the system which we had under military law.
I suspect that the situation is quite different in Iraq. I do not know what the criminal justice system is like there, but I have no doubt that we would insist that we bring people home. We do not have the same problem of maintaining a diplomatic dialogue there, which we certainly would have with the Germans if this amendment were to be carried. We must be rather cautious with this amendment in considering the various jurisdictions in which offences may be committed abroad. We would need be absolutely sure that these jurisdictions were prepared to concede jurisdiction to us under the extraterritorial system, when they could perfectly well assert their own right to try a case before their own civilian courts.
I dare say that the Minister has this carefully in mind but it seemed, recalling as best I can the circumstances of Martin, that that was part of the background. Of course I cannot take anything away from or add anything to the judgment which I wrote, but I think that it is proper to say that when I first saw the case I was taken aback by the fact that this boy was going to be tried by a court martial. It seemed to be a rather extraordinary thing to happen. However, having studied the legislation and been informed about the background, in the end I was satisfied that it was proper that the court martial should be allowed to proceed. There is this additional element to the issue, which I do not think that the noble Lord touched on in his address but which I respectfully suggest we should bear in mind in considering whether the line that he is urging us to take is a sound one.
Lord Thomas of Gresford
Does the noble and learned Lord agree that Martin could have been tried in this country and that it was not just an arrangement between the German authorities and the British military authorities that caused his trial to be in Germany? I think that it was a decision of the Attorney-General.
Lord Hope of Craighead
Of course we had extraterritorial jurisdiction, but the fact that the crime was committed in Germany was an important factor in deciding the proper course for bringing the case before a tribunal to try the boy for the offence. One has to be careful about the local jurisdiction; I seek to emphasise that point.
Lord West of Spithead
My Lords, I have considerable sympathy for Amendment 4, which stems from my view that I see the composition of the board of courts martial as much more to do with discipline and military things. Clearly with some of these very serious crimes, jurisdiction is very important. I am not clear how that could be clarified to make sure that things do not slip through the net because of it. However, the other aspect is perception. The noble Lord, Lord Thomas of Gresford, talked about public perceptions of courts martial. I think that there is also the perception of the military about the way in which they are put on trial. If we went down this route mitigation would have to be very clearly put, particularly when in what one might loosely call a war zone where there has been fighting and nation building, because the circumstances in which something like the Baha Mousa case happens are different from the normal civilian understanding. We would have to be absolutely certain that we were able to get that sort of proper mitigation into the civil court. However, I have great sympathy with Amendment 4, because some of these things should not generally be tried by court martial nowadays.
Lord Tunnicliffe
My Lords, as I said earlier, I see this debate as being in two parts, of which this is the second part. The development of service law in this country has been going on for several hundred years and we have seen important movements in the past 10 years with the 2006 Act and now with these proposals. I am unsympathetic to what the noble Lord, Lord Thomas of Gresford, proposes in this area, because it goes too deep into the body of military law. There is presumably an argument that you do not need military law on any offence that is covered by an equivalent piece of civil law, but we are not there yet in the minds of either the public or the military. We are on a journey and I think that we are at the right place in that journey, so to carve these offences out of the scope of military law at this point would be wrong. I shall read with great care the speeches that have been made and listen with great care to the Minister’s response. We will ponder on those views but, as a generality, the scope of military law is probably right at this time. I repeat that we should address the courts martial system to make the judgment process analogous but leave the scope substantially as it is.
Earl Howe
My Lords, these further amendments address other aspects of the service justice system about which the noble Lord, Lord Thomas, is exercised. I agree that it is right that this Committee should engage in close and careful scrutiny and assure ourselves of the rationale that underpins the system.
Amendment 4 would limit the jurisdiction of the court martial. It would prevent the court martial from trying certain offences: murder; manslaughter; the wide range of sexual offences under the Sexual Offences Act 2003; and any offence committed overseas that a civilian criminal court in the United Kingdom has jurisdiction to try.
The noble Lord, Lord Thomas, explained that his intention with Amendment 15 is to extend the jurisdiction of civilian criminal courts in England and Wales by giving them jurisdiction to try members of the Armed Forces and civilians subject to service discipline for acts overseas that, had they been committed here, would have constituted sexual offences under the Sexual Offences Act 2003. The Committee may be aware that service courts are able to exercise jurisdiction in respect of acts overseas. Section 42 of the Armed Forces Act 2006 provides that a member of the Armed Forces is guilty of an offence under service law if they do an act outside the United Kingdom that would constitute an offence under the law of England and Wales were it done here.
Amendment 16 would give members of the Armed Forces accused of committing certain crimes overseas a right to elect whether to be tried by the court martial or by a civilian criminal court. The crimes in question are those that the civilian criminal courts may try even if the events in question took place overseas. Those offences include murder and, although the noble Lord explained that this was an alternative to his previous proposal, would also include sexual offences if Amendment 15 were accepted as well.
I note one point in passing. Amendment 16 does not appear to propose that members of the Armed Forces should have a right to elect civilian criminal trial in respect of conduct in the United Kingdom or in respect of conduct overseas other than on active service in operational circumstances, yet it is not immediately apparent why such cases should be treated differently.
The noble Lord, Lord Thomas, may not be too surprised to hear that the Government do not support these amendments, which imply that there are problems with the court martial system. Yet the service justice system has been scrutinised by the UK courts and by Strasbourg, and has been held to be compliant with the European Convention on Human Rights for both investigations and prosecutions within the UK and abroad, where the civilian police do not have jurisdiction.
As regards the implication about the competence of the service police and prosecutors, the service police are trained and able to carry out investigations into the most serious offences, with members of the Special Investigations Branch having to pass the serious crime investigation course before being selected for that unit. In addition, selected members of the service police attend a range of specialist and advanced detective training at either the Defence College of Policing and Guarding or externally, with the College of Policing or training providers accredited by the college.
At the Service Prosecuting Authority, prosecutors are trained to effectively prosecute serious cases. For example, prosecution of serious sexual offences requires attendance on the CPS rape and serious sexual offences specialist training course, and the SPA ensures that decisions on charging in such cases are taken only by prosecutors who have completed that training. The Government believe that the service justice system is capable of dealing with the most serious of offences and should be able to continue to do so. In the case of offences which both the civilian criminal courts and service courts have jurisdiction to try, it is recognised that it is necessary for prosecutors to consider in each case whether the offence is more appropriately tried in the civilian criminal courts or in a service court. This applies not only to offences committed overseas in respect of which the civilian criminal courts have jurisdiction but to offences committed in the United Kingdom.
The existing protocol between service and civilian prosecutors recognises that some cases are more appropriately dealt with in the service system and some more appropriately in the civilian system, particularly those with civilian victims. The principles of the protocol were approved by the Attorney-General for England and Wales, and by the Ministry of Justice. The protocol recognises that any offence can be dealt with by the service authorities. The main principle in deciding who acts is whether the offence has any civilian context, especially a civilian victim. The protocol therefore provides that cases with a civilian context are dealt with by the civilian criminal justice system. However, where a case has a service context, it is important that the service justice system—which is specifically constructed to deal with that unique service dimension—is able to manage the case in question. But were we to create a right to elect of the kind contained in Amendment 16, I submit that it could undermine the service justice system, as an accused could make an election which would see the types of cases which civilian and service prosecutors currently consider should be dealt with in the service system—because of their service context—instead having to be dealt with by the civilian criminal courts.
The noble Lord, Lord West, referred to the importance of mitigation in certain cases. Partly for that reason but also for others, many cases which concern conduct outside the UK will have a service context such that both service and civilian prosecutors would consider that they would be more appropriately tried in the service system. That is significant because of the key point that I made on the previous group of amendments: court martial is part of an overall system of justice and discipline, and the existing provisions governing sentencing in the court martial reflect this.
As I mentioned earlier, all service courts have to apply statutory principles set out in the Armed Forces Act 2006 as to the purpose of sentencing. These are closely based on the civilian sentencing principles but include, in addition, “the maintenance of discipline” and the reduction of “service offences”. These principles reflect special aspects related to the service justice system, including those factors that I touched on earlier and shall repeat: first, in service courts the military context of an offence may be relevant to sentencing, and I mentioned an assault against a superior or an inferior; secondly, in service courts a heavier sentence may be justified by reference to the fact that the offender is in the Armed Forces, and I mentioned a drugs offence in that context; and, thirdly, certain penalties are available only to service courts, requiring an assessment of whether they are appropriate from a broadly disciplinary point of view—for example, service detention or dismissal. Allowing a case with a purely service context to be dealt with in the civilian system on the election of an accused therefore risks undermining the system of justice and discipline in the Armed Forces.
Lord Thomas of Gresford
I am most grateful again to the Minister for his careful outline of the Government’s position. I shall take up one point about the right to elect. At the moment, as I recollect, a serving soldier has the right to opt for trial by court martial as opposed to being dealt with by his CO—I have some support from my rear on that proposition—so the concept of opting for one mode of trial rather than another is already in the service discipline system.
The Minister referred to the limited scope of Amendment 16. It is confined—I checked the wording myself a moment ago—to,
“a person subject to service law”,
committing an offence or alleged to have done so,
“when on active service in operational circumstances”.
It would not cover the situation of a soldier who committed an offence who was not in such circumstances. For example, I do not think that that description would apply to anyone who is currently serving in Germany.
Having mentioned Germany, I refer to the contribution of the noble and learned Lord, Lord Hope, to say that yes, there have been agreements on jurisdiction where the Army is abroad, but they are coming back. The situation is quite different. We will not have all the substrata of support and so on in Germany that we have now. I imagine that these agreements will come to an end—is it November of this year when the forces are returning from Germany?—so I suggest that is not a point against the proposition that I am putting forward. So far as the other matters are concerned, they again require me to read what the Minister has said and before I do that, I beg leave to withdraw the amendment.
Lord Touhig
“Requirement to publish statistics on sexual assault and rape
(1) Each service police force must collect and publish annually anonymised statistics on the number of allegations of sexual assault and rape made by and against members of the armed forces.(2) The Director of Service Prosecutions must collect and publish annually anonymised statistics on the number of cases involving allegations of sexual assault and rape made by and against members of the armed forces, including but not necessarily limited to—(a) the number of cases referred from the service police forces;(b) how many of these cases were prosecuted; and(c) how many convictions were secured.”
Lord Touhig (Lab)
My Lords, at Second Reading I raised the Government’s intention to allow women to serve in front-line roles. I believe that the Government’s announcement was an expression of support for the wider equalities agenda but we will debate that issue later in Committee. At this stage, I would say only that if we are serious about equality then we must have equality in the Armed Forces, too. Part of that equality agenda must surely be accepting that we have a responsibility to provide the women who serve, or who may be thinking of serving, in our Armed Forces with the sort of information that this amendment would afford them. No woman—or man for that matter—joining our Armed Forces should have any doubt that sexual misbehaviour of any kind will be punished.
Not a day goes by when cases of sexual assault and rape are not reported in the media. Whether here or abroad, our daily news digest reports on horrors of this nature. But all too often cases go unreported and the victims—mainly women, but not exclusively so—have nowhere to turn to help release themselves from the pain, horror and suffering that they have endured. Because of the system of military discipline, routine and command structures that necessarily exists in the Armed Forces, there is a special need to be vigilant here when seeking to prevent such gross and horrible acts. We cannot bury our heads in the sand and shrug our shoulders as if nothing can be done. When confronted with such a major issue, how often have each of us heard it said: “It’s gone on for ever and there’s nothing to be done about it”?
Such a view of sexual assault, sexual harassment and even worse is not atypical when set in the context of many large organisations, whether military or civilian, but we in the Committee have a chance to do something about that now. Thankfully, we are more alert as a society and not starting from scratch now. It would not be proper to say much here relating to what happened years back at Deepcut. However, I am not alone here in having read some of the recent press reports of evidence given at the inquest into the death of Private Cheryl James and being horrified by what I read. If we can in humility set that aside for the moment, it is right to do so. But the plain truth is that rape and sexual assault are a worry in the Armed Forces today, as was highlighted in the Ministry of Defence’s Sexual Harassment Report 2015.
Sexual harassment in the Armed Forces is an issue, particularly for servicewomen. Our amendment, which I am delighted to see has the support of the noble Baroness, Lady Jolly, would, if accepted, require the Government to publish statistics on sexual assault and rape in the Armed Forces. The best weapon to use against those who commit such acts is the glare of publicity, which can be brought about only by transparency.
I am grateful to the Minister and his officials for meeting my noble friend Lord Tunnicliffe and me to discuss this matter. We welcome the explanation that he and his officials afforded us but we were not convinced that his department is doing enough. We were not convinced that the present data on sexual harassment in the Armed Forces are reliable or being comprehensively collected. More than that, when civilian police investigate allegations of sexual harassment and rape, they are not required to record whether the alleged victim or perpetrator is a serving member of the Armed Forces, yet that is crucial to putting in place within the forces a mechanism to prevent such acts. I shall give an example.
We know that alcoholic excess is a major factor in domestic abuse and wife-beating. How do we know that? We know due to the simple expedient of recording the fact that a person involved in making such an assault was under the influence of drink. It is often said—is it not?—“If it’s not broken, don’t mend it”. That is common sense, but to get there in the first place we have to realise that something is broken. How can we combat this problem in the Armed Forces if we do not know how widespread it is? To know that, we need to keep records and publish data. Having read the Hansard covering the debate on this matter in the other place, I am not convinced that the Government took this issue seriously enough. I have no doubt that that will not happen in this place.
During Committee, the Minister, Mr Lancaster, confirmed that the Service Police Crime Bureau kept records of rape and sexual assault cases that had been made known to it, but how are they made public? Initially, the Minister seemed content that it was being done in response to Parliamentary Questions and freedom of information requests, with the information being subsequently uploaded to the Ministry of Defence online publications system. That is simply not good enough, and that is the reason for this amendment. In truth, I must be fair to Mr Lancaster, who said:
“Let me be clear that I want to explore how we can be more proactive in releasing this information”.—[Official Report, Commons, 16/12/15; col. 1622.]
Those words were spoken on 16 December last year, so the Government have had time to explore how to be more proactive in releasing this information. I certainly look forward to the noble Earl’s reply.
There are twin objectives behind Amendment 6. The first is to ensure that no unnecessary barrier is in place to deny a complainant justice and the second is to protect the good name of our Armed Forces. It is no easy task for a person in authority to deal with allegations of rape and serious sexual assault. More than that, dealing with allegations of rape and serious sexual assault requires a level of expertise—in truth, an expertise that is gained only by dealing with such complaints on a regular basis. Most commanding officers do not have to deal with such matters, and their lack of knowledge and expertise might affect their decisions. In the event that a commanding officer did not appropriately investigate allegations, damage could be done to the reputation of the Armed Forces.
A system needs to be in place that respects the chain of command within the Armed Forces but is also robust and in line with what individuals expect in civilian life. I do not think that the Government see a need for this amendment. Their line is that victims of sexual assault can bypass their commanding officer and go straight to the police, should they wish. However, there are issues with this approach. It is factually true that service men and women are trained from day one to respect the institutions of the Armed Forces, including the chain of command, and this very structure could deter victims of sexual assault from going straight to the civilian police to obtain an investigation. Our Amendment 6 would help to resolve this. In the mean time, I beg to move Amendment 5.
Baroness Gould of Potternewton (Lab)
My Lords, I support Amendments 5 and 6, which are designed to clarify and reduce levels of rape and sexual assault in the Armed Forces. Fundamentally, I believe that the rights of service men and women are just as deserving of protection as civilians, for whose rights I have campaigned for many years. It is essential that independence and fairness for our troops are at the heart of the military justice system, but the reality is far from that aspiration, and I hope that I will be able to illustrate that.
I repeat the words said only eight months ago by General Sir Nick Carter, Chief of the General Staff, that the Army has,
“an overly sexualised culture in which inappropriate behaviour is deemed acceptable”.
Those words illustrate the problem that many women and men in the Army face. Those words are appreciated, however, as is General Sir Nick Carter’s campaign against rape, with a display of hard-hitting posters that are imaginative, and with messages that are bold, and ensure that all service personnel understand the concept of consent. However, the evidence shows that over the years there has been little improvement, perhaps because the current position in both recording the evidence and the determination of rape and sexual assault is clearly flawed. That situation would be improved by the implementation of both these amendments.
The response to a freedom of information request two years ago showed that in the previous three years military personnel had made more than 200 allegations of rape and other sexual offences against their colleagues. Seventy-five allegations of rape and 150 of sexual assault were made to the Military Police between 2011 and 2013. There were 25 rape allegations in 2013, 24 in 2012 and 26 in 2011—consistent figures throughout. Five servicemen were convicted of rape and 22 of sexual assault. But even getting such information may not be possible in the future if the Government abolish the FoI process, which they seem to be seeking to do.
The 2015 Ministry of Defence report on sexual harassment gives much more detail. It says that women had received unwanted comments about their appearance, body or sexual activities, unwelcome sexual gestures, had been subject to attempts to touch them, and that 10% of the women interviewed had received a request for a sexual relationship. But how accurate are those figures? There are clearly questions about the comprehensiveness and reliability of the data collected, as my noble friend Lord Touhig said. For instance, allegations of sexual assault can be investigated by a commanding officer, the relevant service police force or a local police force. Home Office authorities are not required to record whether an alleged victim or perpetrator of a sexual assault is a serving member of the Armed Forces. This means that the Armed Forces do not possess even basic evidence about the extent of sexual assault or rape within the services. Civilian police forces have to collect and collate such evidence in a consistent and orderly way, so why does this not apply to the military? Without a central register published annually, it is impossible to follow trends and patterns and determine whether improvements are being made. I fail to understand why this proposal might be rejected, not least as the Minister in the Commons said that the system needs to be more robust, as has been said. It would be interesting to know what actions have been taken since that statement was made to set the process going to achieve the aim of making it more robust.
On Amendment 6, a commanding officer has broad discretion to decide whether to investigate allegations of sexual assault or whether to refer them to the relevant police force. The commanding officer has to refer cases in line with the offences listed in the Sexual Offences Act 2003 but, strangely, that legislation explicitly excludes for referral sexual assault, voyeurism and sexual activity in a public lavatory. This means that, if notified of an allegation of sexual assault, a commanding officer is not necessarily required to refer the matter to the police.
Sexual assault covers a wide breadth of sexual acts, some of which may seem less serious to the commanding officer but not necessarily so to the victim, and which, if ignored, may develop into a more serious situation. Commanding officers in the Armed Forces are men and women of skill, professionalism and integrity but that does not mean that they have the same levels of specialist investigatory skills as those who have the necessary professional expertise. It is important that those who investigate, prosecute and manage these processes are professionally trained and have the skills to deal with complex cases and, very often, emotional situations.
Relevant to both the data and the process is the number of victims who do not come forward because they do not wish to be investigated by their commanding officer. Evidence shows that they are discouraged from making a formal written complaint, or that they are told they will be treated better in return for a sexual relationship. One in 10 women who had upsetting experiences indicated that they did not report it because they particularly did not want to report it to their specific commanding officers, having been told by others that it would have an effect on their careers or they could be subjected to negative treatment. That is not a very good background against which to encourage women to take these cases forward.
Finally, I refer to a case that gives an example of the hidden culture in the Armed Forces and illustrates so clearly to me why Amendment 6 is necessary. I have concentrated so far on sexual assaults against women, but Ministry of Defence data following another FoI request reveal that male rape is common in the UK Army. In 2013, three rapes and 22 sexual assaults were carried out against men in the UK military forces. Since then, there have been a further 25 assaults, but these figures relate only to information gathered by the Military Police, meaning that the real numbers could be much higher. The ministry could not say whether anyone had been prosecuted for the assaults disclosed in the latest data.
All this evidence proves what has been known for a very long time: that there is a deep-seated culture, as described by General Sir Carter. Surely it is time that the Government legislate to show that they are genuinely concerned to improve what is a truly dreadful situation. Perhaps the Minister can give an explanation for why the Government have been so reluctant to do so in the past. I hope he will not take the same view today.
Lord West of Spithead
My Lords, I strongly support Amendment 5. In the late 1980s, I was dragged from my destroyer by the First Sea Lord and tasked with doing a study into whether women should serve on the front line at sea. Being an ambitious officer, I went to see the First Sea Lord and asked him what result he wanted from that study—but he told me that I was to do a proper study. I spent six months doing it, and I learned a great deal. At the end of it, I concluded that women could serve in all jobs at sea, that there was no reason why they could not do that on the front line and that it was in the interests of the Navy. I thought that that would ruin my career—my wife said that I could run a well woman clinic if things went really wrong —but in fact it did not affect my career that badly.
What I failed to understand was the level of sexual predation that might result from this. I did talk with other navies around the world but I have say that I did not talk to the Army; it was all naval. I have been really quite shocked by the level of sexual predation which one is aware of now. It is necessary to expose what is happening to make it clear to people that things have to change. It is only by laying down the cases that have happened that this will be thrown into the public eye and the eye of the military, and then action can be taken. I am not so convinced by Amendment 6, but Amendment 5 makes a lot of sense.
Earl Attlee
My Lords, I am grateful to the noble Lord, Lord Touhig, for moving this amendment, which concerns a very serious and important issue. He mentioned Deepcut. I urge all Members of the Committee to get the Blake report on Deepcut, which was commissioned by the last Government, as we may have forgotten the background.
I am not convinced by the new clause proposed in Amendment 5, and I hope that the Minister shares that position. However, I would like to ask the Minister about service police records. We are all aware that there will be serial offenders who are posted from unit to unit. I would even dare to suggest that if a commanding officer knows that someone is “a bit dodgy” for one reason or another, they might rather get rid of them, and so send them off to another unit. Then, that same serviceperson becomes a problem in another unit. If the service police were carefully recording complaints against a serviceman—unit 1 gets a complaint; unit 2 gets a complaint—while it may be only slightly inappropriate conduct, there would be a record so that if something serious happens, and the serviceman already has a record of minor offences, you can be pretty sure that there is a problem. If someone has been serving for 15 years and there is not the slightest suggestion of a problem, you might take a slightly different view. My issue is this: are the service police recording every single complaint against a serviceman? I can assure the Committee that I have seen this in the reserves where we had a problem with a junior officer and it turned out that he had had a problem in another unit as well.
Members of the Committee have suggested that the Armed Forces have a problem. I do not deny that there is a problem, but my question for the Minister is this. Is it a bigger problem in the Armed Forces than it is in the civilian world, such as in industry, for instance?
Lord West of Spithead
I am sorry, but surely that has nothing to do with it. We have to get it right within the Armed Forces, have we not? It is only by exposing it that this can be dealt with. When I did my study, I was shocked at the level of this sort of thing going on in banks. I visited banks and large retail outlets and I was absolutely appalled and shocked by it. I must have been naive being stuck at sea. You might think that sailors are not naive, but my goodness me, it was quite a shock. Surely we have to look at what is right within the military.
Earl Attlee
Once again I absolutely agree with the noble Lord that we have to address our problems and deal with them vigorously. I want just to suggest that we ought to be able to compare how the Armed Forces do with the rest of industry. Although we have a problem that we want to and should deal with, the statistics may not actually be as bad as we think they are. We need to compare. That is not a reason for not doing anything about the problem; far from it.
Amendment 6 seeks to take the matter out of the hands of the commanding officer. I agree with this proposal, although I am at variance with the noble Lord, Lord West, on it. These matters are extremely difficult to determine in terms of what has been going on. As he suggested, commanding officers are not well equipped to deal with them. You might think that someone is a really good person, but then you are disappointed to find out that they are possibly offending in this way, so I do not have a problem with this proposal. I inherited a case of sexual assault and it was exceptionally difficult for me to deal with. I did not have to determine the matter, but I had to manage the aftermath. I heard the two sides of the argument and I was ill equipped to determine it. The Minister should consider Amendment 6 very carefully.
Baroness Gould of Potternewton
My Lords, the noble Earl, Lord Attlee, has made me think about two other instances that perhaps I should refer to. One is the fact that we are not talking about and cannot relate in any way to industry. People in the forces live in a closed environment. I shall give an example which has been made public. One woman was sent to an island with 27 men, and that woman was raped constantly on that island. What kind of situation is that? This has nothing to do with working in a bank or anywhere else; it is a completely different environment.
I am also reminded of the fact that the MoD has said that some 20 soldiers who are still serving in the Army are on the sex offenders register, and in each case they have been sent to a different unit, which reflects the point made earlier about people being transferred from one unit to another. That in itself seems an absolute disgrace. The department has also stated that a number of unknown people are in the Army who have been convicted but who are not on the sex offenders register, so they cannot be identified. This is not a good situation for men or women in the Armed Forces to have to put up with.
Earl Attlee
My Lords, the noble Baroness’s final point really follows on from what I was saying about the records of dodgy servicemen.
Baroness Jolly (LD)
My Lords, my first point was going to be the one that the noble Baroness, Lady Gould of Potternewton, has just made. It is not helpful to compare with other sectors. All our Armed Forces pretty much live cheek by jowl with each other. That is not the case elsewhere: if you work in a bank, you go home at five and come back in at nine. It might tell you something but it is not hugely helpful.
I am happy to support Amendments 5 and 6. There are absolutely no circumstances where either rape or sexual assault are acceptable—we have heard talk today about many high-profile cases that are now in the public domain so I shall not go any further there—and we know that at the very highest level the service chiefs would agree with that statement. Last summer the MoD launched the “Don’t Kid Yourself” campaign, so there is acknowledgement and awareness. However, the real commitment at the top has to be to changing attitudes as well as behaviour, which will take time. It takes evidence to check progress and offer confidence.
The point was made that it is not only women who can be victims, and there is possibly a different reaction to men who have been the victims of sexual assault or rape from the reaction to women in the same circumstances. In the service environment, men might feel shame in a slightly different way from the way that women might feel it, and that needs to be factored in as well. A parent would need reassurance that their son or daughter was joining an organisation committed to the eradication of sex offences. Recruits and serving members of the Armed Forces need that reassurance too.
I turn to Amendment 6. To make all feel confident—and I think this amendment is about confidence—there should be no discretion for a CO to refer this to the relevant police force. They should not handle it themselves. Sexual assault is a crime, as is rape, and if there is any doubt it is far better for this to be investigated by the police, who have the experience, rather than a CO, who does not. It has been said to me that COs have been sent on training to do this. I wonder, were I or noble Lords’ sons or daughters to be raped, would we want the case to be investigated by someone who had done some training a year or so before but had not seen a case in the intervening time? We need someone investigating these cases who has not only training but experience and sensitivity. These are very sensitive issues, and the noble Earl, Lord Attlee, made that point as he was explaining his personal experience.
To keep records and publish statistics annually on these cases would enable the Government, the public and members of the Armed Forces to measure progress. It would not be just another task to do; it would enable us to measure progress and to highlight any areas of concern. The Minister in the other place, Mark Lancaster, said during the passage of the Bill:
“I am determined to make the data that we publish robust, consistent and accessible. To that end, I am actively considering how best to publish the data as an official statistic”.—[Official Report, Commons, 16/12/15; col. 1623.]
Has the Minister’s honourable friend finished his considerations yet? What format might he use?
Lord Thomas of Gresford
My Lords, I am moved to join in this debate by the recitation by the noble Baroness, Lady Gould, of the figures for the past few years, which amount to hundreds. I should tell the Committee that in the investigation I was involved with in Washington in America, to the best of my recollection it was estimated that 32,000 sexual offences were committed in the United States armed forces, regarding which there were 5,000 complaints and prosecutions brought in the hundreds, with convictions a lower figure. It was a matter of very high political concern. There is a campaign regarding this by Senator Gillibrand, the junior senator for New York, assisted by Mr Ted Cruz, who has achieved some notoriety lately. So there are a Democrat and an ultra-right-winger and others all involved in dealing with this dreadful problem that they are facing. The issue really is the role of the CO in sexual offences, the very issue that Amendment 6 raises. I strongly urge it upon the Minister that sexual offences should be taken out of the purview of the CO altogether.
Earl Howe
My Lords, I understand the concerns which underlie these amendments. However, the case that I shall put to the Committee will show that I am not convinced that it is necessary or appropriate to make changes. The first amendment in this group would create a legal obligation to publish data about allegations of sexual offences. It would impose an obligation which, it is worth saying, is not currently imposed on other civilian authorities, although they do publish such information on a regular basis.
It may be helpful if I briefly set out the existing arrangements within the service justice system for the collection and publication of crime statistics. The Service Police Crime Bureau records, for all three services, allegations of rape and sexual assault that are made to the service police. That information is released regularly in response to Parliamentary Questions and freedom of information requests. In the case of the latter, the information is uploaded to the MoD’s online publication scheme where it can be freely accessed. Noble Lords have said that they do not regard that in itself as sufficient, but let me continue as there is more to say on this.
The noble Baroness, Lady Gould, said that the system of recording offences needs to be made more robust. In an effort to improve our recording of crime, the Service Police Crime Bureau has been liaising with the Home Office police forces to analyse their crime-recording practices and rules. I am pleased to say that, as a result, the bureau is to establish a post of crime registrar, similar to that found in Home Office police forces, with a remit to scrutinise and audit the recording of crimes on the service police investigation management system. That will undoubtedly improve the accuracy and consistency of the information and, in due course, lead to the production of useful management information about patterns and trends. I very much agree with the argument that it is highly desirable to have an accurate picture of the extent of sexual offending.
My noble friend Lord Attlee asked whether the service police are recording every case referred to them. I will reflect on that issue but, in doing so, I suggest that we need to bear in mind that an unproven complaint should not blight a person’s career. This is a very sensitive issue and it is one on which I suggest that we must be very careful.
Earl Attlee
My Lords, I am not suggesting putting the information anywhere on the service record—in the Army Personnel Centre for instance. I am suggesting that the service police, once that they have had an allegation against a particular serviceman, should keep a file on that serviceman so that if they get a second complaint in a different location, that will have a bearing on the credibility of that second complaint.
Baroness Gould of Potternewton
The noble Earl has talked about the question of allegation, which is always a problem. Would he be prepared to say that a comprehensive list should be produced of the number of proven cases within the Armed Forces?
Earl Howe
I shall address both points. I shall certainly factor in the last point that my noble friend made about the need to have, where this occurs, a record of a pattern of behaviour to guide the authorities if need be.
In answer to the noble Baroness, Lady Gould, the Service Prosecuting Authority records, for each year, the number of cases referred to it, the number of cases in which charges are preferred and the number of cases where a conviction is secured. The Military Court Service publishes on the internet, on a regular basis, details of every case heard at courts martial, including offences, outcomes and punishments. Therefore, the Ministry of Defence already collects and publishes a range of information about sexual offending within the Armed Forces.
However, I do not want to sound in the least complacent on this. As my honourable friend Mr Lancaster made clear in another place, we recognise that we could improve on what we are currently doing. The MoD is now working to ensure that the necessary policies and procedures can be put in place so that the finished product meets the necessary standards of an official statistic. It is a question of ensuring that any statistics that are published can be relied upon to present a true and consistent picture.
Amendment 5 would impose a legal obligation to publish data about allegations of sexual offences. I am more than a little concerned about that because of the point that I made earlier about unfounded allegations but also because no such obligation is imposed on civilian authorities. One has to ask why the military context should be any different.
Amendment 6 would remove from commanding officers any discretion as to whether to report to the service police allegations of the sexual offences to which the amendment relates. Those offences are sexual assault, exposure, voyeurism and sexual activity in a public lavatory. The amendment would mean that the commanding officer was required, by law, to report to the service police every allegation which would indicate to a reasonable person that one of these offences may have been committed. This obligation would apply regardless of the wishes of the victim.
I do not think that this amendment is necessary and I shall explain why. Commanding officers are under a statutory duty under the Armed Forces Act 2006 to ensure that allegations of any offences, including those covered by the amendment, are handled appropriately. The commanding officer’s duties in this respect are crystal clear. If a commanding officer becomes aware of an allegation or circumstances which would indicate to a reasonable person that any service offence may have been committed by someone under his command, he must ensure that it is investigated “appropriately”. The commanding officer must therefore report an allegation to the service police if this would be appropriate.
However, if a commanding officer becomes aware of an allegation or circumstances which would indicate to a reasonable person that a Schedule 2 offence had or may have been committed, he must report this to the service police. Schedule 2 offences are those inherently serious offences listed in Schedule 2 to the Armed Forces Act 2006. Almost all offences under Part 1 of the Sexual Offences Act 2003 are Schedule 2 offences, including rape, assault by penetration and a large number of other serious sexual offences. This amendment would make sexual assault, exposure, voyeurism and sexual activity in a public lavatory Schedule 2 offences. A commanding officer would therefore have no discretion as to whether to report allegations to the service police.
In considering this issue, it is important to remember that before a commanding officer takes command he has training to teach him how to exercise his powers under the Armed Forces Act 2006, and he has access to legal advice 24 hours a day, seven days a week.
I should also mention that comprehensive guidance on handling serious offences, including sexual offences, has been issued to commanding officers, as has a comprehensive guide for victims of such offences. It is also important to note that there is a specific requirement in the Manual of Service Law that a commanding officer is to take legal advice where the offences covered by this amendment are alleged. The manual makes specific mention of these offences in the section on deciding how to investigate. It also states that there is to be a presumption that the commanding officer should normally ensure that allegations of such offences are reported to the service police.
Viscount Slim (CB)
Perhaps I may remind your Lordships that when we were in a committee trying to put all three manuals of service law into one manual, many of us were worried that we were removing the power of the commanding officer in a number of instances. We were all thankful that the noble and gallant Lord, Lord Craig, sat in on just about every sitting of the committee. We saw the demeaning of a commanding officer taking place in some of the discussions.
There is no doubt that there is a certain wish among many politicians to civilianise the military, and I have been worried about that in one or two things that have been said today. If you do not think that a commanding officer is doing his job properly, then, as the Minister said, you lay more and more on him so that he does do his job properly. I myself dealt with a case where I was very perturbed by what was happening. I merely picked up the telephone and asked the special investigation services and the Military Police to be in my office at 10 o’clock the next morning, and the whole thing was sorted out.
I ask noble Lords to be very careful before more powers are taken away and the position of the commanding officer is demeaned. I put it that a commanding officer can do his job, and if the military do not think he is doing it properly, certain things that the noble Earl has described can be put in place.
Earl Attlee
My Lords, legally everyone has a commanding officer; someone somewhere is the commanding officer. The Minister said that commanding officers are given training. I agree that they are given a significant amount of training and that they have a significant amount of experience. The problem is that the powers of a commanding officer can be delegated to someone who has not had that training. Their commanding officer might be only a major and might be deployed to a desert island. That has happened to me. When I deployed on Operation TELIC, my commanding officer was the commanding officer of 1 UK Armoured Division and Signal Regiment. I never met him; I did not know him from Adam. I would suggest that many soldiers do not know their commanding officers from Adam because they normally deal with their officer commanding.
The Committee needs to understand the difficulties faced by a junior serviceman. In these situations they are often making a complaint about someone who is their immediate superior, and perhaps even in their chain of command. They might rustle up the courage to make a complaint, but when they find themselves being interviewed by the company sergeant major, who they might in any case have an issue with for other reasons, they may quickly withdraw the allegation even though it is well founded. I have to say that I am not absolutely convinced by the Minister’s response and we shall need to return to this issue at a later stage.
Lord Touhig
My Lords, we have had a good short debate and I am grateful to all noble Lords who have taken part, but I have to say to the noble Earl, Lord Howe, that I am so disappointed with his response. My noble friend Lady Gould spoke from a lifetime of experience of campaigning on matters of this kind, and some of the statistics that she afforded us are staggering. She mentioned that 20 soldiers are on the sex offenders register. Is that uploaded on to the MoD website, in which the noble Earl seems to put a great deal of faith? I do not know, so perhaps he can enlighten us.
My noble friend Lord West of Spithead spoke with the authority of experience as someone who has faced up to this, not quite realising what a big problem it is, and learned a great deal. He said that we have to change, and that is coming from someone who has served his country heroically and has taken great responsibility for the people under his command. He believes that we really do need to do something about this.
I could not improve on the remarks just made by the noble Earl, Lord Attlee. There will be inhibitions and people will not take things forward because of all sorts of consequences that they might face, so it simply is not good enough. In his earlier remarks he also asked the Minister whether the service police are recording all complaints. I hope that he will be able to tell us at some stage whether that is the case. The noble Baroness, Lady Jolly, was spot on. Parents need to be reassured. Later in Committee we will be considering issues affecting youngsters under the age of 18 joining the Armed Forces.
Lord Touhig
I appreciate that, and am grateful to the Minister for clarifying it. However, he spoke earlier about all this information being uploaded to the MoD’s website, and my point is whether or not that is on there.
The noble Baroness, Lady Jolly, talked about the training of officers, but that is not an answer. Many of us have been involved in training, in all our walks of life, but practical experience shows that you need exposure to deal with problems like this, and the evidence suggests that commanding officers do not have that kind of experience and so are not always the right people. The noble Lord, Lord Thomas of Gresford, said that the United States is looking at this matter, so it is not just something peculiar to our country.
The Minister said that he was not convinced that these amendments were necessary, saying that their provisions do not exist in a civilian context. However, I think we all agree that the Armed Forces is not like any civilian organisation. When you join the British Armed Forces, you are joining an organisation in which you might put your life on the line—it is not like joining Tesco or Barclays Bank. The circumstances and living arrangements are different: they do not go home at 5 pm; they live as a community. We cannot really compare the two.
The Minister also said that some progress had been made and that there is to be a crime registrar. Is this another bureaucrat? How much will it cost? Why not just publish the information? If it is there, why not report it? If the information is being uploaded to the MoD’s website, why not put it in a report? It seems to me that this is another way of pushing things aside and not really facing up to the difficulties. We have a duty of care for the people who serve in our Armed Forces, and I am sure we all recognise that.
The Minister said that he had certain doubts about removing the CO’s ability not to progress a complaint. I think that there are real problems here. I am sorry that the noble Viscount, Lord Slim, feels that this might be perceived to be an attack on the chain of command. That is not the case at all: we have to respect the fact that we need a thorough and well-organised chain of command. However, if you are a “victim”, you are not in a position, as the noble Viscount was able to do, to call somebody in and get the CO sorted out because he has decided that he is not going to progress a particular complaint. There is going to be real disappointment that the Government do not feel able to publish the information that they are collecting. If it is on the website, why not produce it as a report? At the very least, I had hoped that the Minister would have said that although there are deficiencies in these amendments, the Government will go away and see whether they can come forward with their own amendment, having worked with people on all sides to make a better job if it, rather than just shutting it down. I shall not press the amendments, but I tell noble Lords that we will come back to them.
Lord Touhig
“Requirement to publish statistics on employment discrimination against reservists
(1) Each Commanding Officer must collect statistics on how many reservists have reported employment discrimination in the workplace as a result of being part of the reserve forces.(2) The Ministry of Defence must collect and publish annually anonymised statistics on the number of complaints regarding employment discrimination received from reservists who have been discriminated against as a result of their service as a reservist.”
Lord Touhig
My Lords, we owe a debt to our Reserve Forces that is too great to measure. Despite what many have said, they fill a real gap in our military personnel at this time. Only on Thursday of last week, during a Question Time exchange with the Minister in the House, we were right to point out that Britain’s Reserve Forces bring skills to our military that, for whatever reason, are lacking at the minute. However, I do not propose to reopen that debate at this time. It would be less than honest for any of us not to recognise that, as a result of the Future Force 2020 programme, reservists are being recruited to meet targets in troop numbers as a result of a reduction in the number of Regular Forces. Again, this is not the place to open up that debate.
My concern, and the reason for this amendment, is a genuine worry at the sometimes adverse impact that serving in the Reserve Forces has on an individual’s main employment situation. Without the full support and co-operation of Britain’s employers, companies large and small, our entire reserve programme would not exist. Employment protection for reservists was a matter touched on during the passage of the Defence Reform Act 2014. The then Defence Secretary, Mr Hammond, responded to concerns about changes to the structure of the Reserve Forces. At that time, he gave assurances that employment discrimination against reservists is an issue that the Government take extremely seriously and that if the Government felt that further action was needed to tackle employment discrimination against reservists, they would come forward with measures in this Bill. Nothing has materialised. However, whether employment discrimination is not a problem or whether the necessary information does not exist properly, we need to examine the issue.
My starting point is the need to gather facts in order to understand the problem, to measure its extent and, lastly, if thought appropriate, to put in place mechanisms to solve it. Our amendment aspires to nothing more ambitious than making a modest start by requiring commanding officers to collect and publish statistics on employment discrimination against reservists. It is the right thing to do because we, the British people, are the employers of the reservists as much as their employers in their main civilian life. We have a duty to care and ensure that their commitment—and, yes, all too often, their sacrifices—do not lead them to painful disadvantages in civilian life and with their employment.
Earl Attlee
My Lords, I am grateful to the noble Lord for moving his amendment. I have to apologise to the Committee for not tabling a suitable amendment to raise this issue but what I have to say is related. In about 2011, I took out a mortgage on a house. Between me and my wife, we had the necessary financial resources to do it and it was not a problem. However, I wanted to take out term insurance—life insurance—so that if for any reason I passed away the mortgage would be paid off. The chances of my dying suddenly at that age were quite small, but I had to admit to the insurance company that I was still in the TA. That resulted in the premiums being unaffordable, and I did not take out that term insurance. The only reason why I did not take it out was because when I said I was in the TA, the premiums became unaffordable. Will the Minister write to me and tell me what the Government are doing about that situation, and whether it still obtains?
Lord Empey (UUP)
My Lords, I accept that this is a probing amendment. I think everyone would be of the view that discrimination should not take place against members of the Reserve Forces, but there have been examples where clearly it has, and we have just been given another.
In Northern Ireland we have substantial law on discrimination on religious or political grounds. Not that long ago, the identification of people as a member of the Armed Forces was sufficient to result in their being targeted and in many cases, unfortunately, assassinated. The Minister may not have the material at his disposal now but perhaps he might reflect and consult his colleagues in the Government on the implications of the publication of such material. It could result in the identification of units whose members had a particular religious or political persuasion.
So I support the principle, which I think is quite right, but I imagine that there could be some local nuances where the Reserve Forces are concerned. The Minister might care to consult with colleagues on that, since how the information might be acquired and handled may require slightly different treatment in Great Britain from that required in Northern Ireland.
Baroness Jolly
My Lords, I am happy to support the amendment. Future Reserves 2020 relies upon a significant build-up of our Reserve Forces, and at a pace. Employers and reservists have both rights and responsibilities. I am sure that noble Lords would agree that a wise would-be reservist would talk their plans through with their employer, but they need not. The first the employer could hear about them is the receipt of a letter from the MoD. Similarly this can happen at the change of a job. When you apply for a job you are not under any obligation to tell your would-be employer that you are a reservist, which probably chimes with the point just made by the noble Lord, Lord Empey. It is therefore really important that there should be no discrimination. Noble Lords might wonder whether an employer would feel anxious and somewhat disappointed about the lack of confidence that the employee has in him that he has not been told, but clearly there are many reasons here. Also, what employees do in their own time is very much their own business.
There are ways around this on a temporary basis. A reservist employee can ask for a waiver from the MoD lasting a year not to tell the employer, but that aside, there is evidence of discrimination by employers. There is no protection against such discrimination in employment in the normal course of events. This probing amendment seeks to draw out from the Minister the various issues around how this might be handled and ask whether we are aware of the scale of the problem. But as with Amendment 5, recording and publishing the information gives the Government and indeed the public the opportunity to measure progress year on year and creates a fairer environment for reservists in which they are to work.
Earl Howe
My Lords, I am most grateful to the noble Lord for raising this issue and I understand entirely why he felt it appropriate to do so. Nevertheless, I am not convinced at the moment that it is necessary or appropriate to set out a requirement in the Armed Forces Bill for commanding officers to collect and for the Ministry of Defence to publish the kinds of data that he has referred to.
We fully recognise and value the contribution of reservists and the need to ensure that their interests are properly protected. Part of that is making sure that their reserve service does not negatively affect their employment prospects. I completely accept that principle. But that is precisely why there is protection in place to ensure that reservists are not dismissed as a result of any duties or liabilities that they have to undertake; for example, as a result of being mobilised. This protection is provided by the Reserve Forces (Safeguard of Employment) Act 1985, Section 1 of which gives a reservist who is called out for reserve service the right to apply to his or her former employer to be reinstated after they return from mobilised service. In addition, Section 17 of the 1985 Act makes it a criminal offence for an employer to dismiss an employee solely or mainly by reason of any duties or liabilities that may arise as a result of being called out.
Further, Section 48 of the Defence Reform Act 2014 amended the Employment Rights Act 1996 to remove the current two-year qualifying period for claims of unfair dismissal where the reason for dismissal is or is primarily because the individual is a reservist. However, we are not aware of any cases having been brought as a result of this change. In addition, as proposed in the Reserves in the Future Force 2020: Valuable and Valued White Paper, we have established a website that allows reservists to alert the Ministry of Defence if they believe that they have been disadvantaged in employment as a result of their reserve service. These cases are of course investigated if the complainant agrees. There have been only 13 contacts from reservists since we established the website in July 2013. Those are the facts as they currently stand.
The amendment proposed by the noble Lord seeks to place a legal duty on commanding officers to collect statistics on how many reservists have reported employment discrimination on account of their reserve service and for the Ministry of Defence to collect and publish statistics on the number of complaints regarding discrimination. There are more than 300 reserve units in the UK. Given the very low incidence of reported complaints, I submit that a requirement of that kind would be disproportionate and burdensome.
However, there is another difficulty with the proposed amendment—it may be unnecessary for me to point this out, but I hope that noble Lords will forgive me for doing so. It refers to “discrimination” in the context of employment, but it is important to be clear that, despite the protections that I have referred to for reservists in the civilian workplace, being a reservist is not a “protected” characteristic under the Equality Act 2010, unlike characteristics such as age, disability, race, religion or belief, sex or sexual orientation. I would like to make a further point. It does not follow that an allegation of discrimination means that an individual has been discriminated against. One need only think of a simple example, such as someone who says that they have not been promoted because of their reservist status and that that needs investigation. Clearly when an allegation like that is made, it is quite a complex situation. While on the face of it the amendment appears simple, I suggest that there are significant difficulties below the surface.
Our approach, which I hope that noble Lords will agree with, is to develop open relationships with employers and to encourage and support reservists in their individual relationships with their employers. We encourage reservists to raise employer issues with their chain of command and to resolve issues through the improved relationship management process that we have put in place. I would like to think that those processes have borne fruit, in the light of the very small number of contacts with the website that I referred to earlier. Good relationships with employers are absolutely central to the Government’s programme for the Reserve Forces, but I believe that our resources in this area are better spent in strengthening these relationships than in creating and fuelling a reporting process.
The improved relationship with employers is increasingly evident from the number signing the Armed Forces covenant and the very strong examples of those employers up and down the country who have been recognised for their support to our Armed Forces. The issue raised by my noble friend Lord Attlee is slightly different, as I am sure he recognises, and I undertake to write to him about it.
I hope that the Committee will understand why I cannot support the proposal that the Bill should be amended. For that reason I hope that the noble Lord will agree to withdraw the amendment.
Earl Attlee
My Lords, when the noble Lord, Lord Touhig, moved his amendment, he said that it was a probing amendment. However, I support the general position and tone of my noble friend’s response. He mentioned the Reserve Forces (Safeguard of Employment) Act. I must say that post-Operation TELIC, the MoD’s support for reservists who found themselves in difficulties was absolutely pathetic. Reservists were on their own. I used to fondly think that if I found myself in difficulty I would have the big bad main-building MoD on my side. The reality was that reservists got no support from the Ministry of Defence at all. They had the protection of the legislation, but they had to fight the case on their own. Whereas if the MoD had rung up to say, “This is the Ministry of Defence, why aren’t you re-engaging the reservists?”, it would have saved an awful lot of difficulty. But the MoD was, frankly, pathetic. It is not the Minister’s fault, but that is what happened after TELIC.
Earl Attlee
My Lords, it was on the ability of all reservists to get their jobs back. It was not well handled by the MoD at the time. Let us just hope that we do not have to mobilise large numbers of reservists. We should remember that a lot of them had not volunteered to be mobilised, so it was not what they expected.
Lord Empey
My Lords, in the event of the noble Lord, Lord Touhig, bringing back an amendment at a later stage, I wonder whether the Minister would agree to consult his colleagues in the Northern Ireland Office on the specific issue that I raised.
Lord Touhig
My Lords, I thank all noble Lords who took part in this debate. The noble Earl, Lord Attlee, raised an issue which, as the Minister said, was not quite in line with the intentions behind the amendment. Nevertheless, it shows a degree of discrimination because somebody served in the Reserve Forces, and that is something that we need to be put right.
The noble Earl’s second intervention was rather eye-opening. I do not know whether the Minister can come back at some stage and give us some more information about what went wrong at that time, but it is certainly a failure when people come back from an operation like that to find that they do not get help and support to return to their full-time employment.
The noble Lord, Lord Empey, made a very important point in his second intervention, and it is one that the amendment does not really consider. The Minister’s response would be very helpful should we return to this matter at a later stage.
The noble Baroness, Lady Jolly, made the point that there is endless discrimination against reservists. Surely, where we discover this, it is our job to try to do something about it. That is why we are here. What are we here for if not to right a wrong? Is that not what Parliament is supposed to be about?
I am sorry that the Minister is not convinced about the merits of the amendment. He said that there is a website and that only 13 people have contacted it, but is it not possible for the Government to include something in the annual covenant report on this matter to highlight it? It may well be that 13 is the top number and that the problem is not as great as perhaps people fear, but under the surface, below the radar, there may be many more such cases, and if we highlight the matter then we will at least get to know. If we do not open this up and get some transparency, we will not know to what extent the problem exists or whether it does not exist.
Reservists are certainly facing difficulties, and I am full of admiration for companies and employers. Some of them are very small scale—I met them when I was a Minister—employing just two or three people, but they are prepared to co-operate and help, allowing their staff to serve in the Reserve Forces. I have nothing but admiration and respect for them. However, if there are difficulties, surely it is our job to do something about them, and perhaps the Minister will reflect a little more before we reach Report. For now, I beg leave to withdraw the amendment.
Lord Touhig
“Mental health provision and compensation
(1) Part 3 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 is amended as follows.(2) After article 28 insert—“28A Special provision for sufferers of mental health conditions(1) In the event of a diagnosis of a mental health condition that has been caused by serving in the armed forces, an immediate lump sum payment shall be made, as defined in article 17 (amount of lump sum and supplementary award).(2) Upon commencement of treatment of a mental health condition that has been caused by serving in the armed forces, retrospective payment of the determined compensation shall be made, dated back to the date on which the diagnosis was made.””
Lord Touhig
My Lords, Amendment 8 has widespread support across the House, as evidenced by the names attached to it.
The amendment stems from a discussion that I had recently with representatives of the BMA who raised concerns about the way that those with mental health problems are often overlooked when it comes to receiving proper recognition and compensation for the illness that they are enduring as a result of serving in our Armed Forces and reserves. I am sure I am not alone in knowing someone—a friend or a family member—who suffers with mental health problems. I often think that our lifestyles and the pace at which we live today contribute to our difficulties in this regard. I have no medical or scientific basis for holding that view; rather, it comes from what I observe in society as a whole.
None of us needs a medical or scientific background to know that mental illness can take a number of forms and can often be hard to diagnose, especially if the person concerned will not recognise the existence of the problem in the first place. I have come across cases like that and, again, I am sure I am not alone in that.
I was motivated to encourage colleagues to support this amendment by the case of a reservist with a medical background who waited eight years for a diagnosis, having endured PTSD after serving in several theatres of conflict in our Reserve Forces. I learned that there are many others in the same situation who find that mental health problems adversely impact their ability to work at the expected level, inevitably reducing their income and thus their family life. For those serving in our forces and reserves, the problem is serious indeed. Having waited a great length of time for a diagnosis, there would appear to be no opportunity of gaining immediate financial assistance. Contrast this with those having served in our Armed Forces who suffer a physical injury: they can claim up to £60,000 if their injuries are set at level 8 or more. However, mental health is classified below this level. Once diagnosed with a mental health problem, it can typically take 18 months to two years before it is clear whether treatment will lead to a complete or partial recovery and the level of residual deficit, if any. I understand that for a claim for financial compensation to succeed, the permanent level of disability must first be assessed. This adds a further lengthy period of time when the claimant who has served in our Armed Forces or reserves has to live on decreased earnings, in many cases supporting a family. The situation is made worse if the person concerned requires a period of sick leave.
Treating the men and women of our Armed Forces in this way does no honour to us as a Parliament or as a nation; all the more so now that we have the Armed Forces covenant in place. In the foreword to this year’s covenant report, the Defence Secretary, Mr Fallon, writes:
“In return for this loyalty and commitment, we have a duty to ensure that our Servicemen and women are treated fairly”.
This amendment gives us the opportunity to see that, as a country, we live up to that well-expressed and noble aspiration. We can make it more than an aspiration; we can make it a reality. If agreed, this amendment would provide for an immediate payment upon diagnosis and a retrospective payment upon commencement of treatment, backdated to the date of the diagnosis. I hope that the Government will feel able to respond positively to this amendment. In addition, I also fully support the amendment in this group in the name of the noble Baroness, Lady Jolly. I beg to move.
Baroness Jolly
My Lords, I shall speak to Amendments 8 and 14. For reasons that will become apparent, I will talk about my amendment first and then Amendment 8. The whole thing hinges on the Armed Forces covenant. Noble Lords will know that at some stage during our lifetime, one in four of us will have a mental health issue. This is pretty much mirrored in members of the Armed Forces. Today, I want to talk about serving members of the Armed Forces and reservists while they are deployed. I am not going to talk about veterans. Veterans receive their health services from the NHS, whereas serving members and deployed reservists receive their health services from the medical system within the Armed Forces. The covenant is all about ensuring that someone in the Armed Forces is not at any disadvantage to those who are outside. I do not know whether when he saw this amendment the Minister raised his eyebrows and thought, “Oh no, not again”, because during the passage of the Health and Social Care Act 2012, a great deal of time and energy was spent debating the issue of parity of esteem. This amendment is to ensure that health issues are treated in exactly the same way—clearly not in terms of diagnosis or treatment but in general expectation—regardless of whether they are physical or mental. I thank the noble Lord, Lord Touhig, for his support on this.
I put it to the Committee that if a sailor, aircraft person or soldier tears their hamstring, they visit their unit doctor or medical centre. They are then referred for treatment, may be given painkillers and are strapped up. Physio will be part of the treatment and, when it is mended, in due course they will return to work. If the injury is serious, they may have to leave the service and continue with treatment outside. Physically, they will clearly be strapped up, so people can see what is going on and their colleagues and chain of command will support them in their journey back to work. A physical injury is something with which we are all comfortable and which we understand. It can be seen: there is no problem. If the issue is anxiety, depression or even worse, the story should be similar, but that is not always the case. The services have done a huge amount of work to reduce the stigma associated with these conditions, but, as in civvy street, it has not always been successful.
Within the NHS, there has to be a great move towards parity of esteem for physical and mental health. What might that look like? It might look like waiting times being much the same for a hamstring injury as for a conversation with a psychiatrist or a psychologist about one’s mental health. It should also be about the uptake of services, which should be much the same for physical health as for mental health. Therefore, I propose that the Armed Forces covenant report should include an assessment of the aspects that I have outlined. As with Amendments 5 and 7, the collection of information and its publication enables progress to be measured.
Amendment 8 follows on from Amendment 14 in that compensation should apply equally to both physical and mental health conditions and therefore I support both of the amendments.
Lord Empey
My Lords, I welcome the fact that this debate is taking place. Mental health has moved up the national agenda very substantially in the last few years. However, I think we all agree that at local level it is still the Cinderella service. In putting things into law, we have to be careful that there is the back-up on the ground to deliver them. I believe it will be many years before we have sufficient capability in the National Health Service to deliver the very worthy objectives contained in these amendments.
Noble Lords who have supported constituents in bringing benefits claims involving, for example, carer’s allowance and other benefits before tribunals know that you could draw a blank from the tribunal members when it came to post-traumatic stress. They had no capability of understanding the circumstances which an individual could be in. I am reminded of the early days of the discussions on mesothelioma and asbestosis, when you had to prove that the individual contracted the disease with a specific employer. The law was subsequently changed. Forty years can pass before post-traumatic stress materialises. I saw this with somebody with whom I worked very closely, and it took almost 40 years. Tying it down to a specific incident will be challenging.
In the context of the military covenant and Amendment 14, mentioned by the noble Baroness, Lady Jolly, promises have been made and we have advanced very substantially. If ever there was an issue that needed to be addressed, this is it; and I believe that that is entirely possible. However, I am not convinced that we as a nation have yet acquired the capability on the ground to deal with these things. We do not wish to raise expectations only to have them dashed. Anyone who knows their local area knows that mental health is a huge issue, and my area is no different. We still have large numbers of young men who, sadly, commit suicide. There are people in the military and ex-service personnel who we know have a tendency to have a higher involvement with the criminal justice system. Others have difficulty with employment or with accommodation. There are also addiction issues. There are a range of things that on the face of it are linked to their commitment to the Armed Forces.
When people have been in conflict we see the obvious physical injuries and, as the noble Baroness, Lady Jolly, said, there is a pathway for how those are treated, but very often there is no parallel process for the mental health implications. I think that these amendments are well worth debating and considering. I just wonder whether the Minister agrees that, in framing anything to put into the legislation and into the military covenant, we should be mindful that we must be able to deliver it before we create the expectation that it is going to be there, only to have that subsequently dashed.
Earl Attlee
My Lords, I agree with everything that the noble Lords have said. I believe that Her Majesty’s Armed Forces have been engaged in combat operations, as opposed to peacekeeping operations, for far too long. You can tolerate a certain amount of that, but when a difficult combat operation goes on for years and years it is bound to cause very serious mental problems among our servicemen. Like many noble Lords, I think that this is going to bite us very hard in the future.
Lord Empey
Does the noble Earl agree that we in the UK have a reasonably well documented example of that? Among members of the Royal Ulster Constabulary, who were effectively in a combat situation both in work and at home for many years, after the Troubles there was a substantial rise in the number of mental health issues that were presented. I am sure that the department would have those statistics available, and there might be some interesting things there.
Lord Thomas of Gresford
My Lords, I would like to say something about attitudes towards mental health. I remember in the 1970s appearing on behalf of a person who had been blown up rescuing a pilot from a plane in the Western Desert during the war some 30 years before. It was extremely difficult in those days to persuade the ministry—the War Department, I think it was—that he was entitled to a war pension. We succeeded in the Divisional Court, but in the next election when I was a candidate he stood up and told the people there that if they voted for anyone, it should not be that Liberal candidate as he had problems.
Lord Craig of Radley (CB)
My Lords, I support the thrust of this probing amendment. Clearly there are enormous differences between trying to deal with people who are still in the services and may be suffering from mental illness and those who have become veterans and, maybe many years later, develop or show symptoms of mental illness. How does that get related to their time in service? There are a number of other practical points that I think have been very well made. I would like to put on the record that I am for this in principle but I can see that there are many difficulties. No doubt the Minister will have a chance to tell us about them.
Baroness Tyler of Enfield (LD)
My Lords, I add my support for Amendment 14 and apologise for my very croaky voice. I do not normally engage in these discussions, but I have a very strong interest in mental health. As other noble Lords have said, with so much focus on mental health now, it really has gone up the agenda. We have had a succession of extremely important reports, most recently the mental health task force report. Parity of esteem between mental health and physical health runs right the way through that report and all the thinking behind it. If we accept that report—certainly in the debates that I have recently taken part in on this subject, the Government have shown their strong support for the reports and the principles behind them, and that is welcome—it is absolutely vital that parity of esteem between physical and mental health is applied equally to members of our Armed Forces, who do the very difficult jobs that they are asked to take on, as it is to the rest of the civilian population. I simply add my support.
Earl Howe
My Lords, I hope that it will not surprise noble Lords to hear that I fully share the sense of importance that they attach to mental health and parity of esteem in the way that mental and physical health are treated by our health services. Both these amendments seek to address provision for the care and support of members of the Armed Forces who suffer from mental health conditions while in service. This is something that we take very seriously, as I will go on to explain.
Taking first the issue of compensation for those who suffer from mental health conditions, I should explain that the Armed Forces Compensation Scheme already makes awards for injuries and disorders predominantly caused by service, including mental health conditions. The scheme is tariff based and aims to make full and final awards as early as possible so that individuals can have financial security and focus on getting on with life and living. Claims can be made while in service or when an individual has left.
The AFCS tariff has nine tables of categories of injury relevant to military service, and these include mental health disorders. While the scheme does have time limits for claims, there is also a provision for the delayed onset of mental disorders. The Ministry of Defence recognises that owing to stigma and perceived impact on career, people may delay seeking help. The practical effect of this is that if a person who left the Armed Forces some time ago is diagnosed with a mental disorder as a result of his or her service and makes a claim under the AFCS, a compensation award will be paid as soon as the claim is accepted.
Noble Lords may recall that, having been asked to review the AFCS, including the associated tariffs, the noble and gallant Lord, Lord Boyce, made his recommendations in February 2010. As a result, the Ministry of Defence increased the maximum lump sum award for mental illness from £48,875 to £140,000. This was to accurately reflect the impact of the most serious mental health conditions. In addition to the lump sum, those with the most serious conditions with likely adverse functional effects on civilian employability receive a tax-free guaranteed income payment for life on discharge from the services or from the date on which the claim is accepted. A lump sum of £140,000 attracts a GIP based on 75% of military salary with enhancements for service length, age, rank and lost promotions.
Another of the noble and gallant Lord’s recommendations led to the Independent Medical Expert Group, a non-departmental public body, being established. It advises Ministers on the scientific and medical aspects of the scheme. The noble and gallant Lord, Lord Boyce, identified mental health as an area requiring further investigation. The subsequent IMEG review involved a literature search and discussions with civilian and military experts, as well as with veterans’ organisations. The findings were published in its second report on 17 May 2013. The conclusions and recommendations on diagnosis, causation, assessment of disorder severity and the use of interim awards were accepted and subsequently incorporated into the scheme.
The second amendment in this group would create a specific obligation on the Government to have particular regard in their annual report on the covenant to,
“parity of esteem between mental and physical healthcare”.
As I have said previously, the Government are committed to meeting the healthcare needs of the Armed Forces community. For this reason, the Armed Forces Act 2011 already requires the Secretary of State to include in his annual Armed Forces covenant report to Parliament the effects of membership, or former membership, of the Armed Forces on service people in the field of healthcare under the covenant.
I was grateful for the remarks of the noble Lord, Lord Empey, and I agree with his general point about managing expectations. However, I agree with him only up to a point in this context because I think that the healthcare which we provide to our armed services personnel, both at home and when deployed on operations, is now truly world-class. Last year the principles of the covenant were enshrined into the NHS Constitution for England. That gives a commitment to ensuring that those in the Armed Forces, reservists, their families and veterans are not disadvantaged in accessing health services in the area where they reside. Indeed, we have made several improvements, including: the provision of some £6 million a year to support the provision of enhanced prosthetic devices and services for veterans who have lost a limb as a result of service; the launch of the hearWELL programme to look at hearing loss among the service community; and the allocation of £10 million to address service-related hearing issues among veterans. I know that these are related to physical injuries; nevertheless, I hope that they show the appropriate intent.
With increasing awareness of the issues, we have taken steps to meet the mental health needs of our Armed Forces community. On this specifically, we now have a network of 16 departments of community mental health across the UK, providing out-patient care to the service community. When in-patient care is necessary, it is provided in eight dedicated psychiatric units. Additionally, the Armed Forces covenant gives a commitment that veterans should be able to access mental health professionals who have an understanding of Armed Forces culture, while NHS England is currently completing an audit of veterans mental services, put in place following the Fighting Fit report by my honourable friend Dr Andrew Murrison MP in 2010.
I can therefore assure the noble Baroness that the Government are committed to meeting the health needs of the service community, that we will continue to report on the provision of healthcare in the Armed Forces covenant annual report, and that our work to address mental health needs will be an integral part of that report. However, the principles of the covenant are to ensure that the Armed Forces community are treated fairly in comparison to the civilian population. Parity of esteem is there to ensure that all health services treat mental health with the same importance as physical health, and it applies to everyone accessing NHS services, not just the Armed Forces community. For this reason, it does not need to be legislated for under the covenant.
Given our clear commitment to support those who suffer from mental health conditions and the tangible steps we are taking to do so, I ask that the noble Lord and the noble Baroness withdraw or do not move their amendments—hopefully, reassured.
Lord Touhig
My Lords, the Minister rightly makes a very important point about the commitment that we as a country have made to helping people with mental health problems. The work being done for those who have served in our Armed Forces is first class. We have had some very good contributions to this short debate. The noble Baroness, Lady Jolly, made a powerful case on Amendment 14 and I am sure that she is disappointed that the Minister does not feel it necessary to include it in the covenant report. He says that he shares our sense of the importance of this issue but the point of my amendments, which have attracted widespread support, is that people who have served in our Armed Forces and have a mental health problem receive no compensation or financial support at all until after diagnosis. That can take five years; in the case that I raised, it was eight years. That is a time when people are trying to support their families. Sometimes they cannot work properly, so this can cause all sorts of financial difficulty.
Before we reach Report, can the Minister provide the Committee with statistics showing whether this is a widespread problem and how many years people have to wait before they get a diagnosis? As I say, my information suggests that in many cases they wait for at least five years. If you are in financial difficulties and cannot get back to work, that is pretty devastating for someone who has served in the British Armed Forces, especially in the reserves. I hope that the Minister will feel able to do that at the very least. Whether we return to this on Report is another matter, but the information would be helpful because then we would know the extent of the problem and whether there is a need for us to press further for the Government to act. With that, I beg leave to withdraw the amendment.
Lord Mackay of Clashfern
“Limited disapplication of the Human Rights Act 1998
The provisions of the Human Rights Act 1998 shall not apply to any member of the armed forces engaged in military operations outside the United Kingdom, with the exception of those rights protected by the Geneva Conventions of 1949.”
Lord Mackay of Clashfern (Con)
My Lords, this amendment seeks to explore the result of a case known as Smith and others v Ministry of Defence, which has provoked a good deal of concern among those experienced in the military and in service. I feel that it is right to try to deal with it in the course of this Bill. It is therefore necessary for me to explain as quickly as I can what the judgment entails. There was a fairly sharp difference of opinion within the Supreme Court about the rule that should apply.
It was a case before seven judges concerning claims arising out of the deaths of three young men and the suffering by two other young men of serious injuries while serving in the British Army in Iraq. The claims related to the training given to the soldiers before their engagement with the enemy, the provision of suitable equipment and the selection made of available equipment for a particular operation. They fell into two groups. The first, the Challenger claim, was the result of a “friendly fire” incident that occurred during combat when Iraq was being invaded by the coalition forces in 2003. The second was the result of a series of attacks using roadside bombs on personnel travelling in Snatch Land Rovers in 2005 and 2006 when combat was over and had been replaced by a period of military occupation. The British forces were assisting the civil power in Iraq, which at the time had an interim Government.
It is very important to understand that, at least in substance, the claims were not against those involved in the operations. The report of the Supreme Court concerns a stage in the proceedings when the question was whether the pleadings disclosed a case that should proceed to a full trial of the facts. The claims concerned the European Convention on Human Rights and the common law of England. Article 1 provides that:
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”.
All the judges of the court agreed unanimously that the jurisdiction of the United Kingdom extends to securing the protection of Article 2 of the convention to members of the Armed Forces when they are serving outside the territory of the United Kingdom. That was an important point because, until then, there had been a general feeling that jurisdiction depended on the territorial extent of the state in question.
Article 2.1 was brought into play by that unanimous decision. It provides that:
“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law”.
After detailed consideration of the relevant decisions of the European Court of Human Rights, the noble and learned Lord, Lord Hope of Craighead, summed up the position in this way:
“The guidance which I would draw from the Court’s jurisprudence in this area is that the court must avoid imposing positive obligations on the state in connection with the planning for and conduct of military operations in situations of armed conflict which are unrealistic or disproportionate. But it must give effect to those obligations where it would be reasonable to expect the individual to be afforded the protection of the article. It will be easy to find that allegations are beyond the reach of article 2 if the decisions that were or ought to have been taken about training, procurement or the conduct of operations were at a high level of command and closely linked to the exercise of political judgment and issues of policy”.
That is a reflection of a line of authority that indicates that, for example, the chief constable of a police force does not have a specific duty enforceable in the law of negligence in respect of individual members of the public in his area. The noble and learned Lord went on:
“So too if they relate to things done or not done when those who might be thought to be responsible for avoiding the risk of death or injury to others were actively engaged in direct contact with the enemy”.
That is the important point to think about in relation to the decision—that it did not impute any liability to those who were directly or actively engaged in direct contact with the enemy. He continued:
“But finding whether there is room for claims to be brought in the middle ground”—
that is, between the two—
“so that the wide margin of appreciation which must be given to the authorities or to those actively engaged in armed conflict is fully recognised without depriving the article of content, is much more difficult. No hard and fast rules can be laid down. It will require the exercise of judgment. This can only be done in the light of the facts of each case”.
That is one result of the analysis in the case of Smith.
I should mention that the convention is modified by a protocol which provides for a modification of convention obligations where a member of the convention is threatened by war. However, this was deemed by the noble and learned Lord, Lord Hope, to have no application to the circumstances that he was considering, as the operations in Iraq were not the result of a threat of war against the United Kingdom. It is interesting to consider whether the United Kingdom can engage in war against Iraq when Iraq is not at war with the United Kingdom.
The other basis of the claim was a duty of care laid upon the body responsible for the safety of the soldiers by the common law of England. This is a consideration completely separate from the Human Rights Act. As an exception to the general application of that duty, the courts have developed the concept of “combat immunity”. The noble and learned Lord, Lord Hope, used as a formulation of this concept a statement by Mr Justice Dixon in an Australian case. He said:
“To concede that any civil liability can rest upon a member of the armed forces for supposedly negligent acts or omissions in the course of an actual engagement with the enemy is opposed alike to reason and to policy. But the principle cannot be limited to the presence of the enemy or to occasions when contact with the enemy has been established. Warfare perhaps never did admit of such a distinction, but now it would be quite absurd. The development of the speed of ships and the range of guns were enough to show it to be an impracticable refinement, but it has been put out of question by the bomber, the submarine and the floating mine. The principle must extend to all active operations against the enemy”.
In discussing this subsequent development, the noble and learned Lord, Lord Hope, pointed out that, being an immunity, it has to be strictly construed. He concluded on both grounds that an application of these views to the case before the court required a close consideration of the facts and that it should proceed to a full trial. With that conclusion, three of his colleagues agreed, but Lord Carnwath, who was in the minority on the claims in the first group, agreed with the other four that the claims in the second group should go to trial—that is, where it was no longer a combat situation but a peacekeeping situation.
The minority judgment was first given by Lord Mance. He disagreed for a reason which he stated thus as far as the common law basis of the claim was concerned:
“I consider that the Challenger claims, which are only in common law negligence, should be struck out in their entirety on the basis that the state owes no such duty of care as alleged with regard to the provision of technology, equipment or training to avoid death or injury in the course of an active military operation”.
Again, that is a reflection of the principle that I mentioned in relation to, for example, the police. On the human rights basis, Lord Mance said:
“In my opinion therefore this Court should proceed on the basis that the policy considerations which guide its domestic law in the present area of national interest will find an echo in Strasbourg, and not invade a field which would involve, in the context of claims for civil compensation, extensive and highly sensitive review with the benefit of hindsight the United Kingdom’s country’s policies, strategy and tactics relating to the deployment and use of its armed forces in combat. The United Kingdom’s performance of its investigatory and procedural duties under article 2 is not in doubt”—
and he mentions a few inquiries, including the Chilcot inquiry, lamenting that it was rather late, although that was in 2013. He concludes:
“The issue with which this judgment is concerned is whether deaths and (at common law) injuries in combat fall to be investigated in the civil courts, at whatever level in the armed forces, Whitehall or the government responsibility for them is suggested to arise. The answer I would give is, no”.
Lord Carnwath agreed to a large extent with Lord Mance, but he took the view that as some of the claims related to what amounted to peacekeeping operations, a joint approach did not apply.
That is a short analysis of the judgment and the issues involved. As I said, my amendment is simply phrased to allow this matter to be considered. I suggest that it is for your Lordships to consider what should be done in the light of this judgment, which is an important one with strong differences of opinion echoed at the highest level in our legal system.
One possibility is to do nothing and just leave the issue as unresolved. It has been resolved by a majority of the Supreme Court and that would stand, but due to the fact that there is such a sharp difference of opinion I thought that it was worth finding out whether your Lordships would consider legislation on this point. I suggest that the first option for legislation is to provide that no action for negligence will be available when injury or death occurs in combat or in military peacekeeping operations to the personnel involved in those operations. That is the minority judgment—that if the injury occurs in the course of a military operation, combat or peacekeeping, there should be no claim in negligence. The second is that it would apply only in combat operations and that, if it were a peacekeeping operation, a claim would arise.
The major option, if one goes along with the judgment of the noble and learned Lord, Lord Hope, and those who agreed with him, would be that no action for negligence will be available when injury or death occurs in combat or military peacekeeping operations against anyone involved in these operations but it will be available against others if that is realistic and proportionate. That seems to me to be what is said about the Human Rights Act. Again, the question would be whether that applies only in combat operations or whether peacekeeping operations are also included.
Lord Thomas of Gresford
Before he finishes, may I ask the noble Lord about claims against the Armed Forces? For example, Iraqi claims have been brought forward that rely, to some extent, on the Human Rights Act. What is the impact of his amendment on that?
Lord Mackay of Clashfern
This applies only to the injury or death of those serving in the military on behalf of the British Crown. As the noble Lord, Lord Campbell, pointed out to me just before we came in, operations nowadays may not be on behalf of only the British Crown. They may be carried out, for example, in combination with the Americans, the French or some other nation. That is a further complication which did not arise in the case of Smith. The same principles could possibly apply in that situation. However, it does not deal at all with actions against, for example, Iraqis or any other people among whom our Armed Forces might be serving. The jurisdiction applies, in this particular case, to the injury or death of those serving. There would be implications of other kinds, not dealt with in Smith, so far as people who are not members of the Armed Forces are affected by actions of the Armed Forces.
Lord Craig of Radley
My Lords, it was a privilege to put my name to the amendment of the noble and learned Lord, Lord Mackay. I have looked upon it very much as a probing amendment to give the Government an opportunity to indicate how their thinking is going. We have a problem with the Human Rights Act and Armed Forces legislation. Indeed, when the Human Rights Act was debated here in 1998 I drew attention to the potential problems that might arise. My concerns were dismissed then by the noble and learned Lord, the Lord Chancellor. I quote what he said then:
“I urge your Lordships to be of the view that the convention is a flexible instrument. It poses no threat to the effectiveness of the Armed Forces”.—[Official Report, 5/2/98; col. 768.]
Whatever flexibilities the noble and learned Lord had in mind, they have I fear proved to be valueless and ephemeral. Cases against the MoD and individual service personnel affecting our forces on operations overseas have proliferated. Some were settled out of court. Others made the prolonged and tortuous passage up through the courts, with the MoD appealing a couple to the Supreme Court in 2013. The Committee has had a good exposition of what happened in the Supreme Court. It was a thorough and nuanced finding but there was a 4/3 split and they did not really resolve the issue.
Later that year, in a debate led very admirably by the noble Lord, Lord Faulks, I suggested that the Armed Forces Bill before the Committee today would be a suitable vehicle for legislating to ease the problems faced by the MoD and the Armed Forces on operational activity overseas. So, as I made quite clear at Second Reading, I was dismayed to find that no attempt has been made to tackle the problem in this Bill. The Government have had the better part of three years since the Supreme Court judgment to consider what form legislation should take. I have pointed out in debates on this issue that it was not going to go away —it had legs—and that it would be a failure of political leadership not to tackle it.
In recent weeks, the much-heralded Bill of Rights has been mentioned as shortly to be published. Indeed the noble Lord, Lord Faulks, indicated as much in his response to the second Oral Question this afternoon. I thought that the noble Lord also confirmed that it will incorporate legislation to help to resolve the problems created for the Armed Forces by the incompatible legislation that affects them. If so, I very much hope that whatever detailed form the legislation takes, it will introduce further amendment to this Armed Forces Bill when it is enacted. It would be preferable to contain any new legislation within the principal Armed Forces Act, rather than once again having two separate pieces of legislation about the behavioural discipline of the Armed Forces. Indeed, in the debates on the then Human Rights Bill in 1998, I suggested that while the Armed Forces were of course a public body, it was acceptable that they were, and indeed should be, treated separately in legislation. I suggested that any aspects of human rights that were to apply to the Armed Forces should be incorporated into that Armed Forces legislation. If this approach had been adopted then, we might not be facing the present difficulties.
The comments of the noble Lord, Lord Faulks, on the second Oral Question this afternoon seemed to imply that the clauses affecting the Armed Forces were already drafted. If so, surely the Bill before the Committee this afternoon could be an appropriate vehicle for getting this legislation enacted, particularly if the Bill of Rights is to be delayed, and may, as a whole, have some considerable difficulty in reaching the statute book. Has this been considered? If so, can we expect government amendments to this Bill on Report?
Lord West of Spithead
My Lords, I thank the noble and learned Lord, Lord Mackay of Clashfern, for laying out so clearly exactly where this stands, although I have to say that the result does not leave things particularly clear for a number of reasons which he has explained. I will not reiterate what I said in my speech at Second Reading, where I went into the detail of this complex issue, but suffice it to say that the decision by the Supreme Court in the case of Smith and others v Ministry of Defence has, without doubt, raised the spectre of military personnel who take a decision in the heat of action being taken to court to face a claim under the Human Rights Act. As I say, it has raised that spectre. That is clearly wrong and I do not believe that it is what was intended. Indeed, mention has been made of how the case is not against those involved, but the result is that the spectre has arisen. I feel very strongly about this. I have been in action and have taken decisions that resulted in men dying. I believe that I took the right decisions, but it would be wrong for one then to have to go through the courts to explain all of that.
Of course these issues are highly complex, and that is part of the problem. The cases that were being considered looked at a number of different scenarios concerning things like the definition of combat operations, peacekeeping operations within Iraq, the issue of procurement, issues around the tanks and Snatch Land Rovers operating in a different context and being hit by IEDs. The sheer complexity has caused part of the problem. It has been said that some of these matters need to be investigated by the civil courts. That has dragged in the possibility of people fully in action being taken to the courts later for decisions they took, which I do not believe should be looked at in civilian courts. They should be covered by combat immunity.
I shall reiterate what I said before. It is a nonsense that one can use human rights legislation to drag military leaders through the courts for decisions made in war because, in combat, men and women kill and are killed on a regular basis fighting for their country. One has to wonder what exactly the right to life is when you are fighting. You have to make people stand up and do things where you know they are likely to be killed. I have done that. What is the right to life in those circumstances? It is very difficult, and I do not believe that the judgment was making that point, but that could be the result of what has been done.
As has been said, this is a probing amendment. I love it because it is nice and simple. Being a simple sailor, I love a simple amendment, but the complexity is far too great and I know that the noble and learned Lord, Lord Mackay, appreciates that. He has tabled it to probe the Government and find out. We need to know how the Government are going to take this forward. How will we clarify and resolve this position, because it really does need to be resolved? There is certainly concern in the military about this, and it spreads far and wide. There is also, I have to say, concern at times about fighting to win if you feel that some sort of legislative action is going to be taken against you. It would be a dreadful thing if our Armed Forces were to feel constrained.
What I would say to the noble Earl is this: we need an answer as to how this is going to be taken forward. Will it be done in the context of this Bill, as was mentioned by the noble and gallant Lord, Lord Craig of Radley, or will we do it in other legislation that is going through? How can we take it forward, because I do not believe that it can be left as it is? There is too much uncertainty. I know that it was not what the judgment aimed to do, but the uncertainty is there, and that is wrong. We have to clarify this.
Lord Thomas of Gresford
I would be grateful if I could speak first because the noble and learned Lord might wish to comment on what I say. I do not think the issue is the liability of the military commander in the field directing operations. As I recall, the cases were about the provision of equipment which would have prevented the firing of one tank upon another—the “friendly fire” that caused the injuries—and, in the other, the use of Snatch Land Rovers in a situation where it was unsafe to use vehicles of that type. The Ministry of Defence, which really must promote something like this, should not get away with the provision of inadequate equipment of one sort or another. You would not expect a soldier to go into action in Arctic conditions wearing a tropical uniform that had been provided to him. It is a question of procurement, not of the decisions that are taken in the field.
I seem to recall the noble Lord, Lord West, saying at Second Reading that when you are in the field you have to get on with it and do what you can with what you have got. The fact that you have to do so does not mean to say that those who have provided you with inadequate equipment—who fail to give a steel helmet to a Tommy in the trenches, for example—should escape all liability or blame for what occurs by amendments to the Human Rights Act in this way.
Lord West of Spithead
My fear is that this judgment has opened up the spectre of things to be investigated by the civil courts. That is why this comes into train, although I know that they were aiming at high-level procurement.
I have to say as an aside that to start with in a war you always have to fight with the equipment you have got. Almost inevitably, certainly in the two wars that I have been in, the equipment that we had at the time was not what I would have used in that situation, but we had to get on with it. I bloody well—sorry, I knew that the equipment was not up to that task. I knew, for example, that I had put my ship in a position where my anti-aircraft capability would not work, but I was destroying an airfield and supporting Special Forces operations so I had to be there. Still, I knew jolly well that if there were heavy air attacks I would suffer; indeed there were, and I was sunk. I am concerned that something could happen in a court where someone says, “Why did West do that when he knew jolly well that the equipment was not up to it?”, and that is wrong. That is the point that I am making: there could be an unintended consequence. That is what I am nervous about.
Lord Tunnicliffe
I wonder if the noble and learned Lord, Lord Hope, would let me speak before him because I intend to quote him at some length and he can correct any mistakes I make. I make it clear that the Opposition would not support this amendment as set out. I am not talking about little technicalities about wording; I am talking about an erosion of the Human Rights Act. We believe that that is a proper and admirable piece of legislation and that its retention is important. No doubt this will be the basis of a major battle between the parties in the weeks to come when the legislation is published.
I turn to the specific area of the judgment. Before Second Reading, I had not heard of Smith and others v Ministry of Defence. I googled it, thinking, “This will give me the information”, only to discover that the judgment was 72 pages and 188 paragraphs long. At the very moment when I had a sense of doom, I noticed that it had been given by the noble and learned Lord, Lord Hope, whose office is some 50 metres from mine, so I tried to save myself some effort by going to see him, and I thank him for the briefing he gave me.
I looked through the 72 pages to get a wider flavour of the judgment. I will concentrate solely on the Challenger 2 event. The Snatch Land Rover issue is complicated by the fact that it was not formally a combat situation but a peacekeeping one, so while it is important to the debate, it is capable of being part a much wider debate. In my view, however, the tone of the judgment on the Challenger 2 event is straightforward. The noble and learned Lord, Lord Mackay, has already quoted paragraph 76 of the judgment, but if the Committee will forgive me I shall quote a few more paragraphs. Paragraph 82 states:
“The Challenger claims proceed on the basis that there is no common law liability for negligence in respect of acts or omissions on the part of those who are actually engaged in armed combat”.
That is a pretty flat statement. It continues:
“So it has not been suggested that Lt Pinkstone or anyone else in the Black Watch battle group was negligent. Nor, as his decision to fire was taken during combat, would it have been appropriate to do so. The Challenger claimants concentrate instead on an alleged failure to ensure that the claimants’ tank and the tanks of the battle group that fired on it were properly equipped with technology and equipment that would have prevented the incident, and an alleged failure to ensure that soldiers were provided with adequate recognition training before they were deployed and also in theatre. Their case is founded entirely on failings in training and procurement”.
Its final sentence says that:
“The Ellis claim at common law also raises issues about procurement”.
If we delve further into the document, we get what is in a sense the substance of the ruling. Paragraph 95 says that:
“The same point can be made about the time when the failures are alleged to have taken place in the Challenger claimants’ case. At the stage when men are being trained, whether pre-deployment or in theatre, or decisions are being made about the fitting of equipment to tanks or other fighting vehicles, there is time to think things through, to plan and to exercise judgment. These activities are sufficiently far removed from the pressures and risks of active operations against the enemy for it to not to be unreasonable to expect a duty of care to be exercised, so long as the standard of care that is imposed has regard to the nature of these activities and to their circumstances. For this reason I would hold that the Challenger claims are not within the scope of the doctrine”—
that is, combat immunity—
“that they should not be struck out on this ground and that the MOD should not be permitted, in the case of these claims, to maintain this argument”.
Its argument was to rule that it should be struck out through the doctrine of combat immunity.
The tone of the whole judgment is summed up in paragraph 100 where the noble and learned Lord, Lord Hope, says:
“The sad fact is that, while members of the armed forces on active service can be given some measure of protection against death and injury, the nature of the job they do means that this can never be complete. They deserve our respect because they are willing to face these risks in the national interest, and the law will always attach importance to the protection of life and physical safety. But it is of paramount importance that the work that the armed services do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things … go wrong. The court must be especially careful, in their case, to have regard to the public interest, to the unpredictable nature of armed conflict and to the inevitable risks that it gives rise to when it is striking the balance as to what is fair, just and reasonable”.
In other words, over and over again in the findings as I read them—as an amateur and not as a general, although I was made acting pilot officer, and having never been a lawyer, although I was a great employer of lawyers—the noble and learned Lord seems to go out of his way to express that this is not about combat. It is about when it is reasonable and practical to do so that the MoD has a duty of care.
I come back to my question. Where is the harm in sustaining the Human Rights Act as it has been used in this case, and what are the implications? The implications are that it says that simply because the process eventually leads to combat, the Ministry of Defence cannot use the doctrine of combat immunity to avoid its duty of care. Where it is reasonable to exercise its duty of care, it has a duty to do that.
Also in my career, I worked for the Ministry of Defence as a non-executive director of defence and equipment support. As such, I was asked to look into the safety of equipment in the MoD, and I have to say that it was variable. In some areas it did not meet the highest civil standard. I do not mean silly standards; I mean the general duty that you have in civil law to reduce risk to as low as is reasonably practicable. Civil law does not say that you cannot do dangerous things and no one is suggesting that the military should not, but where you have an opportunity to reduce risk, you have a duty to take it. That cannot be an unreasonable duty. My reading of the judgment is that that is where the duty remains: where it is practicable it should be exercised, but where it is impractical, specifically in combat, then a court should not regard it.
The area of harm that does exist is what in other circumstances people would call the chill factor. The Health and Safety at Work Act has been around for so long now that most industries that are subject to it, whatever you read in the press, are mature enough to live with it. However, there are still things like the presumption of guilt—the chill factor that will stop executives from doing their job. In fact people get over it and get used to it, but if it is influencing in combat the decisions that soldiers, sailors and airmen are making, then that is wrong. That is a challenge for the MoD, not a challenge to change the law but in its training, in its teaching of the doctrine and in ensuring that the people who are making decisions fully understand that this ruling does not relate to combat and that they should continue to make their combat decisions as they have been taught to, within the rules of what I loosely call the Geneva convention, and get on with the job.
We will not support this amendment. If it comes up on Report we will oppose it, or in trying to dilute the Human Rights Act, we will oppose it.
Lord West of Spithead
Just before my noble friend sits down, I would like to get clarification. Is he saying that combat immunity trumps the Human Rights Act? In a European Court judgment on human rights, combat immunity will trump it—is that what is being said? That does not appear to be the case, which is one of the worries that I have with what is going on. The French and another nation, for example, have both taken their military out of that and said that they are not liable to the Human Rights Act in action. However, my noble friend seems to be saying that combat immunity trumps the Act, so this is not a problem that we should be discussing. Is that correct?
Lord Tunnicliffe
One of the reasons why I spoke when I did was so that there could be a summing-up of the law by the noble and learned Lord, Lord Hope. My understanding of the judgment is that there is no question that the Human Rights Act applies to military personnel when they are serving overseas. It was a unanimous decision of the court and all seven judges agreed that it was true. What they then asked was, “What does the Human Rights Act require?”. People really should read the Human Rights Act. It is about three or four pages long and is a brilliant document. It refers to the European Convention on Human Rights, which is also well worth every person in our legislature having a read of. The Act is an extremely balanced document, virtually every provision of which expects you to behave reasonably.
What the court said, and I précis, is that the duty in the Human Rights Act to have care for those you are responsible for—the right to life—has to be interpreted reasonably, and the doctrine of the common law right of combat immunity holds good in a combat situation. Where there is proper opportunity to consider actions that may reduce risk then you have a duty of care to consider those actions, but not in combat and in the heat of battle.
Lord West of Spithead
My noble friend’s exposition explains exactly my concerns about what is going on because it is not at all clear. That is why we need this in order to have the issue clarified. What my noble friend has said has actually left me totally confused as a military commander, so we need to have this clarified. That is why I believe that this is important.
Lord Tunnicliffe
I can see why my noble friend was made an admiral and I only an acting pilot officer.
Lord Hope of Craighead
My Lords, I wonder whether I could say a word. First, I apologise for the fact that due to other business I was not able to hear the speech and analysis of the noble and learned Lord, Lord Mackay of Clashfern, although he did show me in advance the paper from which much of his speech was drawn. I also expressed my regret to the Minister, the noble Earl, Lord Howe, that I have other business to attend to and might not be able to be here all the time.
I should like to say a few words because I feel a heavy weight of responsibility on my shoulders; I had the responsibility of writing the judgment. It covered an enormous amount of ground. I was not responsible for all the paragraphs because other people wrote as well. The starting point of the analysis was what to make of developments in the European court in Strasbourg, which has been expanding the jurisdiction in a way that I do not think judges in this country entirely welcome. It has always been understood that the European convention applies to our embassies abroad; that is accepted and has never been in doubt.
Gradually the thinking has developed so that, for example, when in Iraq the military set up a detention centre, bringing local people in to be detained and examined there, they had the protection of the human rights convention—the right not to be tortured, the right to life and so on—because we had control over what happens within the detention centres that we set up. What is different about the law which we were trying to analyse and explain is the extension of that jurisdiction, as I think the noble and learned Lord, Lord Mackay, explained, to members of the Armed Forces serving outside the territory—not just outside the territory of the signatories to the European convention itself but outside the territory over which they have control. We are now contemplating Article 2 applying to areas where the Army are not in control of events but nevertheless have some duty, apparently, or have the protection under Article 2. That applies both ways. The amendment by the noble and learned Lord, Lord Mackay, could in fact be read as applying to the need to be protected under Article 2 as well as the right to immunity from challenge under it for things done to other people.
What I was attempting to do, having secured the agreement of all my colleagues on my analysis, was that we had to recognise that Article 2 applied outside the territory, so we had to explain what that meant. It was not an easy task. One of the problems in trying to get across to people like the noble Lord, Lord West, and others was that we were not dealing with a case that put in front of us the kind of situation that he was faced with. They did not bring a case against the commander in the tank or anyone who was actually on the ground that they were in some way subject to criticism under Article 2 or subject to a claim for negligence at common law. I rather wish they had, because we would certainly have struck it out. We would have made it absolutely plain that people in that position, the heat of battle, are not to be exposed to criticism or to litigation because of things done in those circumstances. Decisions have to be taken for all sorts of reasons and it is quite impossible for a court to analyse them as to whether they were properly taken.
All I could do in my judgment—the noble Lord, Lord Tunnicliffe, has been very generous to me by setting out the various paragraphs in which I tried to do it—was to make it as plain as I could that there is an area that the courts will not go into. I did not secure the agreement of my colleagues on what to do about the cases in front of us. There was a four to three majority in favour of allowing the Challenger cases to go to trial to find out more about the facts before a decision was taken, and there was a five to two majority about the Snatch Land Rover cases that they should go to trial as well. There can be different views about this. The advantage of more facts was in fairness to the families that what was actually going on was absolutely clear before a final decision was taken. However, I made it as clear as I could that those who were taking the cases to trial should not think they were going to succeed. They had to get over the hurdles, which I explained in the various parts of my judgments. What the result of these cases will be, I simply do not know.
I cannot add to my judgment; that is not a position that a judge can ever enjoy. My judgment has to speak for itself. All I can say is that I would not change any of the words that I see when I read it over and over again. It is a difficult problem because one has to balance the need for the military to conduct operations without impediment, whether in wartime or peacetime, with, at the same time, the interests of the servicemen and their families. The noble Lords, Lord Thomas of Gresford and Lord Tunnicliffe, both illustrated the other side of the balance. I am not suggesting that legislation should not be resorted to, if the Government think that they can improve on what I attempted to say in Smith. Lord Bingham of Cornhill, one of the greatest judges that we have had in recent times, used to say that the law is made not by scoring boundaries by sixes but that you develop the law in singles. In a way, Smith was an attempt to face up to a problem and explain under modern circumstances what could be made of it. I do not claim that we achieved perfection by any means. I am deeply sorry that it has caused such alarm among senior members of the military for reasons that I certainly did not intend. I cannot do anything about that, except to apologise to them and hope they understand what I was trying to say.
The task that the Minister faces is the very difficult one of trying to analyse exactly how to express in legislation the need for protection of the individuals serving in our interest and, at the same time, giving freedom to those who have to take the decisions not to be impeded in a way that would defeat our national interest.
There is only one other point I wish to make, which I think the noble and learned Lord, Lord Mackay, hinted at in his speech. Any legislation will have to stand up to scrutiny under the European convention itself. It has to be compatible with the convention rights. However, I think that the noble and learned Lord was pointing out the direction in which the Government could go by saying that there is a margin of appreciation, which gives quite a latitude to the Government in deciding how to frame legislation. In a way, I was trying to explain in paragraph 76 that and how the margin of appreciation might lie. Not everyone agreed with me, and perhaps the Minister can improve on what I was trying to say.
Before I sit down, I repeat my apology to the senior officers in the military who think that that are being in some way targeted by what I said. That was certainly not my intention and I did the very best I could to make it clear that they were not to be open to that kind of criticism.
Lord West of Spithead
I certainly do not have the view that that was the aim of the judgment by the noble and learned Lord. However, because he was not able to make a judgment on a case of someone involved in action, this spectre has appeared. It is unfortunate that a judgment was not able to be made. Therefore, there is the spectre of something being done. I generally do not like legislation, but there is merit in trying to achieve something in legislation. I have read the whole judgment and had a nice chat with the noble and learned Lord at lunchtime about the issue—that is one of the great joys of being in this lovely building. I quite understand it, but that is my worry.
Lord Hope of Craighead
I am very grateful to the noble Lord. One cannot invent cases. The trouble with the courts is that you simply have to take what you are given. That is the real problem, which I think the noble Lord correctly identified.
Lord Thomas of Gresford
Does the noble and learned Lord think that a way forward—
Lord Brown of Eaton-under-Heywood (CB)
My Lords, the judgment in Smith, although 72 pages long, deals with one aspect only of the several problems that face the military as a result of the application of human rights, as opposed to international humanitarian law, to our Armed Forces serving abroad. It is important to recognise that Smith deals only with claims by our own soldiery regarding deaths and serious injuries against the ministry, not against individual officers. This amendment, and this is important, deals with only one aspect of Smith: the human rights claims brought by our armed services, not negligence claims.
The fact of the matter is that even if this amendment is put in place, it leaves the negligence capability—the ability of the soldiers to claim negligence against the military—still open to them. So questions of compensation and of blame are still open to be litigated. As I made plain on Second Reading, I would deal with the compensation claims as well, but not in such a way as to deprive the injured soldiers or the relatives of the deceased soldiers of any money. Instead, without their needing to establish liability and negligence, I would increase their entitlement beyond that under the pension scheme by giving them the equivalent of common law damages and getting rid of all the litigation. It is the litigation and the risk of litigation arising out of these cases that inhibits our military capabilities, puts people on the defensive and does all the things that worry the senior military personnel.
This is a minor point—and I speak with diffidence—but I would not draft the provision in the way that this particular proposal is drafted. It seems to me that it goes too wide. What is required to deal with the human rights aspect of Smith is to embargo claims under Articles 2 and possibly 3 of the convention on the part of our armed services. We could have some formulation along the lines that members of the armed services engaged in military operations outside the UK should not be entitled to claim by reference to Article 2, or Articles 2 and 3, of the European convention. As presently drafted, it disapplies the entire Act and, as my noble and learned friend Lord Hope rightly says, there are undoubtedly aspects of the Human Rights Act which plainly would apply. For example, take a court martial of one of these personnel serving abroad: one would presumably want to apply Article 6 of the convention to their case. It is not that which we are concerned to deal with; it is only the claims aspect.
Similarly, there is nothing in this amendment or in Smith which deals with the very real problems that have been caused to other aspects of our armed services abroad, such as claims by foreign combatants and civilians, claims that Strasbourg dealt with in cases such as al-Skeini, and cases concerning the detention of foreign suspects, as in the case of al-Jedda.
I believe that it is quite possible to introduce this limited disapplication of a right to rely on Articles 2 and 3 consistently with our human rights obligations. In other words, I think that there is a very powerful argument for saying that the majority in the Supreme Court in Smith did not actually need under the convention to go as far as to accept that Article 2 and Article 3 liability could arise on the part of the UK in respect of any of these claims.
On Second Reading, I mentioned, as did others, the publication Clearing the Fog of Law, which is compulsory reading for anyone who takes a serious interest in the problems caused by applying human rights law to our Armed Forces abroad. It deals with this narrow question raised by Smith at pages 43 to 45. I will not quote from it at length, but it is written by Tom Tugendhat, a retired colonel who is now a Member of Parliament, and two distinguished legal academics, one from Cambridge and one from Oxford. They state:
“It is strongly arguable that the UK Supreme Court misconstrued Article 2 of”,
the convention,
“imposing more extensive obligations than the European Court of Human Rights would mandate. Legislative reversal of Smith … is the only practical way that the outer boundary of Article 2 of”,
the convention,
“can be tested before the ultimate interpreter of the Convention in Strasbourg”.
Lord Thomas of Gresford
I was going to put this question to the noble and learned Lord, Lord Hope, but does the noble and learned Lord, Lord Brown, consider that a way forward might be to attempt legislatively to put the boundaries of combat immunity forward?
Lord Brown of Eaton-under-Heywood
I am glad to have been asked that question because it gives me the opportunity of saying this. Combat immunity is not of relevance here in respect of the convention claims. It is highly relevant, and was the answer sought to be advanced by the ministry, to the negligence claims. What was held, as my noble and learned friend said, by not four but five members of the court was that it did not extend to the peacekeeping mission that was relevant to the negligence claims.
I would not deal with the negligence part of the claims by extending the scope of combat immunity. I would deal with those parts, as I said at Second Reading, by legislating under Section 2(2) of the Crown Proceedings (Armed Forces) Act which enables one, in effect, to disapply tort law in respect of our Armed Forces. However, I would give them the compensation that the noble Lord, Lord Tunnicliffe, is understandably intent that they should have by making sure that they do not lose out by getting less under the pension scheme than they would if there were successful common law claims. I would give them the money on a no-fault liability basis because they have incurred these ghastly injuries serving the national interest in combat abroad.
However, I regard that as having nothing whatever to do with the limited scope of this amendment, which is simply to disapply the relevant part of the convention to that aspect of these claims. It would disapply Articles 2 and 3 so that, if necessary, it could be tested in Strasbourg whether the majority in the court in Smith needed to go as far as they did in saying that Article 2 applied. As the noble and learned Lord, Lord Mackay, said, I believe that the court would say that the margin of appreciation here allows us not to apply Articles 2 and 3 in this sensitive situation where Armed Forces are serving in combat abroad.
Earl Attlee
My Lords, I strongly support my noble and learned friend and his noble and gallant supporters. I have deployed on two military operations, in addition to aid operations. One was peacekeeping and one was war-fighting but for our purposes there was no difference because a peacekeeping operation can deteriorate into a war-fighting or combat operation.
On both operations I willingly put my life, limb and security at the disposal of Her Majesty. “Her Majesty” might sound an old-fashioned term but to me it is all-encompassing. It means the nation, its citizens, the Government, the CDS—who at the time was the noble and gallant Lord, Lord Boyce—and the chain of command.
In return, the nation regards such service as highly commendable. If I did not come back or I was badly injured, it would be jolly hard luck. Statistically, it was actually unlikely. Whenever you deploy on military operations, it is a sad fact that it is not likely that everyone is going to come back intact, and you have to accept that if you are prepared to authorise military action. Obviously, my family would mourn my demise, but what I would not have wanted is the chain of command and the staff wasting their time on inquiries or litigation about my bad luck when they are trying to prosecute a campaign and to secure the absolute minimum number of casualties overall. I suspect that all of the cause célèbre cases that I have read about have been either misreported or misleadingly reported in order to make a good story. In some cases, I know this to be the case because at the relevant time I was in the headquarters handling the issue. If noble Lords want to be briefed privately on that, I am quite willing to do so.
It seems to me that there are several difficulties with involving the legal system when there appears to be a failure in an operation, the planning of it, the resourcing of it or the training for it. The first issue I am certain about because I have seen it myself. Sadly, in a few cases the deceased or those around him or her are the authors of their own misfortune. Sometimes, there is a failure to adhere to the training. I have read news reports where I have had to conclude that for one reason or another the training was not adhered to. Obviously, the MoD is not going to use any of these defences against a claim or misleading news report. We would be shocked if it did so, and I think that some Members of the Committee are a little bit shocked that I am taking this line.
The second issue is that there may be a very good technical reason why some equipment is not used. There could be intelligence to suggest that it is not a good idea. For instance, the capability could have been compromised in some way or using that equipment might be of benefit to opponents. There might be a military judgment to be made about which technology or capability is the highest priority to deploy to theatre. The Committee needs to recognise that in an operation logistic capacity is neither infinite nor perfect.
In about May or June 2003, I was running around in Basra province in southern Iraq in a soft-skin Land Rover. I was heavily armed with a Browning 9 millimetre pistol. My body armour was somewhere in the back of the Land Rover and I am reasonably confident that my driver had his SA80 rifle. It was a benign environment and I did not need protected mobility. But then the situation changed for reasons that the useless Chilcot inquiry may eventually tell us. Following tours had to adopt a much higher state of readiness and needed better equipment, and this was not anticipatable.
The final difficulty is morale. It does not improve morale anywhere in defence to have to endure all this completely unfair and inaccurate criticism. For instance, imagine that you are an expert in the DSTL and read a report suggesting that the very clever equipment you are developing and deploying is in some way inadequate. I have made this point before and I will make it again. I think that trying to pin responsibility for an individual fatality arising from Operation TELIC 1 against the then Labour defence Ministers is outrageous. There may well be questions about the legality, necessity, grand strategy and post-conflict planning of TELIC 1. However, the operation was militarily brilliant. We are one of the few nations in the world that could have undertaken it at all. Most nations cannot even get close to what we can do. We deployed a division out of theatre. We helped to get a regime to collapse at the cost of a mercifully low number of casualties, tragic though they were. The reality of military operations is that one never has all the training or equipment that one would desire or that could be made available in time. What you need is far better training and equipment than your opponent has, and that is exactly what happened on Operation TELIC 1. Noble Lords should make no mistake: in a deployed headquarters every fatality hurts like hell. I know; I have been there.
My final point is that there is a perverse inverse law that the level of scrutiny attached to each fatality on an operation is inversely proportionate to the number of fatalities taken. Proof of this is that if we had taken 1,000 fatalities on Operation TELIC 1, would anyone be worried about the ones who are currently a cause célèbre? I think that the Committee knows the answer.
Earl Howe
My Lords, I am extremely grateful to my noble and learned friend Lord Mackay for having given the Committee the opportunity to examine the set of issues that are of fundamental importance for our Armed Forces and indeed for the Government. As my noble and learned friend explained, the amendment would end the application of the Human Rights Act 1998 to service personnel engaged in military operations outside the United Kingdom. I have very great sympathy with the intention behind the amendment. Recent legal developments have raised justifiable fears in many quarters that service personnel could be unwilling in future to take the rapid and high-risk decisions essential for operational effectiveness, due to the fear of litigation. The Government fully believe that international humanitarian law, as embodied in the Geneva conventions, should have primacy over human rights law in the field of armed conflict. Addressing that issue was a manifesto commitment for this Government.
None the less, for reasons that I shall explain, I cannot invite the Committee to press this amendment. The Government are concerned about and determined to address the risks arising from developments in international human rights law, which have the potential to impose ever greater constraints on the ability of the Armed Forces and the MoD to operate effectively while defending the UK and its interests. As pledged in my party’s manifesto, the Government are absolutely committed to replacing the Human Rights Act, and will be consulting in due course on our proposals for a Bill of Rights. It is only right that that consultation should include the important question of how the Bill of Rights should apply outside the UK, and will ensure that all aspects of the change are properly and fully considered, not least its implications for the rights of our own Armed Forces, which would be affected by this measure. So I suggest that it is in the broader context of a Bill of Rights that these important issues are best considered. We are working closely with the Ministry of Justice as it develops its proposals.
I was very grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for his intervention. When we speak about combat immunity, there are two issues that need to be distinguished, as he made clear. There are negligence claims and common law, where service personnel believe that the MoD or the Government have put them at undue risk—for example, due to decisions on procurements—and then there are human rights claims under the Human Rights Act or the ECHR, which are claims against the MoD brought either by service personnel in respect of injury or death or by civilians.
On the first of those categories, the negligence claims, I was grateful for the comments of the noble Lord, Lord West. We are concerned that the Smith judgment has left the position on liability for events on the battlefield unclear. That is why we are considering legislation to bring about the necessary clarity. The noble Lord, Lord Tunnicliffe, asked me what harm could result from the Smith case. My response is that, as my noble and learned friend explained, in the Smith case—with no disrespect to the noble and learned Lord, Lord Hope—there were such strong differences of opinion between members of the Supreme Court that it is reasonable for thought to be given to legislating.
We recognise that there is a concern about UK court decisions eroding the doctrine of combat immunity, which prevents legal claims being brought against the Government for negligence in the course of duty in armed conflict. However, my noble and learned friend Lord Mackay has indicated that his amendment would make provision only with respect to the second category that I mentioned, injury or death of members of the Armed Forces. It would not deal at all with claims brought against the MoD under human rights law in respect of the actions of members of the Armed Forces—for example, by Iraqi nationals. The Government are concerned about both classes of case, and our ongoing work relates to both.
I should make clear that my noble and learned friend’s amendment relates to human rights claims and those claims brought under the ECHR. We are concerned about both types of case and are examining them in the context of our work on the Bill of Rights.
The noble and gallant Lord, Lord Craig, asked, in effect, why we could not legislate more speedily, perhaps through this Bill. I am as keen to make speed with this as he is but, alas, we are not quite yet ready. There are a number of areas that we are looking into, including examining different areas of legislation where changes could be made and what more we could do to support our Armed Forces personnel and their families. Work is under way, and we will be announcing further detail in due course.
I am most grateful to my noble and learned friend for raising this important issue today. It has been a truly excellent debate. I am confident that when we come to introduce our proposals for the Bill of Rights, we will address effectively the problem that is rightly of concern to him, and we will do so in the context of a much needed and thorough overhaul of our domestic human rights law. On that basis, I hope that my noble and learned friend will agree to withdraw his amendment.
Lord Mackay of Clashfern
My Lords, it was never my intention to press this amendment. It was simply intended to raise these issues, which are extremely complicated. For example, in the case of Smith, Lord Mance pointed out that it is alleged that the major under whose command the firing tank was operating was told of the situation, and that there was a question in relation to the Snatch claims about whether the commander on the ground had chosen the particular vehicle that was involved in the incident. Although there is no question of anyone who was serving being involved in the claim against him, there is difficulty in finding out whether or not there has been a breach—for example, in relation to procurement or supply. You have to investigate the facts on the ground and the decisions of the commanders.
Perhaps I may take the example that the noble Lord, Lord West, gave of his own situation in the Falklands. My understanding is that, if there were a claim in relation to that by someone who had been severely injured and if the application of these principles that are being adumbrated came into play, the question of whether, for example, the anti-aircraft provision on the ship was adequate might have depended on where it was thought the ship would have gone. As I understand it, the difficulty was that when the ship got very closely inshore, the anti-aircraft provision was not adequate. If the ministry were being sued for failure to provide better anti-aircraft equipment—I am thinking of this as a possible scenario—there might be a question as to whether, in the circumstances of the engagement, the commander of the ship was required to go to a place where the anti-aircraft guns would not work properly or whether he could have operated effectively somewhere else. I do not imagine for a minute—
Lord West of Spithead
Perhaps I may interject for a moment. I could not possibly have gone anywhere else. I just want to make that clear.
Lord Tunnicliffe
Surely the judgment given by the noble and learned Lord, Lord Hope, makes that absolutely clear. The issue of the operational decisions in combat could not, in the view of the Supreme Court, be prayed in aid of negligence. The issue is those decisions not taken in a combat environment.
Lord Mackay of Clashfern
I entirely agree. The noble and learned Lord, Lord Hope, made that as clear as he could. However, as Lord Mance pointed out, the problem is that, while that is the principle, it is quite difficult to apply in practice. If you are trying to sue the ministry, the question may be whether what happened on the ground followed what from the ministry had done. The Snatch case is the easiest one, in a way. I used the case of the noble Lord, Lord West, only because he mentioned it himself, but the Snatch case is perhaps the best example of where it is possible to say that the ministry provided the right equipment but the right vehicle was not picked. There are three vehicles waiting and you pick one. It is not the right one; the other two are somewhat different. I am not suggesting for a minute that the people who made the choice could be sued for negligence, but the question of whether or not the claim against the higher authority is made out may depend on the investigation of these things. That is what the noble and learned Lord, Lord Mance, was talking about.
As I said, I never intended to press this amendment at a later stage; I simply tabled it to raise the issues and to see what can be done. My approach would be that we should see what we want the final situation to be. We should forget what the human rights convention has to say. We should look at what we want and consider legislation. We should believe that if it is suitable legislation it will be covered by the margin of appreciation and that the human rights convention, which of course we cannot alter ourselves, will not be affected in any way. With great respect, as a result of all this debate, that is the approach that I would commend.
I am sorry that we have gone beyond the time when we were supposed to finish, but I regard myself as not completely responsible for that because things depend on what went before. I beg leave to withdraw my amendment and I do not propose to raise it on Report.