Grand Committee
Armed Forces Bill
(8 years, 9 months ago)
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The Deputy Chairman of Committees (Baroness Henig) (Lab)
My Lords, if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Amendment 10
Lord Craig of Radley
“Limitation on prosecutions of members of the armed forces
No member of the armed forces may be prosecuted for any offence alleged to have taken place more than 20 years ago while the member of the armed forces was engaged in military operations outside the United Kingdom.”
Lord Craig of Radley (CB)
My Lords, this is clearly a probing amendment. It flies in the face of the norm that there is, in general, no time limit on investigating or bringing a charge for alleged criminal behaviour. My reason for tabling such an amendment is to encourage debate and a reasoned response from the Government. I shall not repeat my arguments, given at Second Reading, for bringing this to the Committee now. Noble Lords are well aware of the industrial growth in historical cases of alleged criminal behaviour of service personnel, going back over time not just years but decades. The Bill clearly indicates that it is acceptable for the Armed Forces to be treated differently in legislation where there is a military operational reason for so doing. An amendment on these lines, not necessarily using my precise words, would fit that purpose.
The growth in the number of historical claims now being dealt with by the MoD has been the topic of recent media coverage, which has quoted the irritation of Ministers and even the concern of the Prime Minister. Therefore, I hope to hear not only that the MoD is well aware of the growing problem but that it has specific plans in mind to tackle it. If it is to be by some form of inclusion in the Bill of Rights that we have recently heard about in the Chamber, I urge that it should be in the form of an amendment to the Bill before the Committee today. Better still, as I have already proposed—although I do not do so now with great hope—why not include the relevant part in the Bill before the Committee?
Wherever possible, legislation that applies to the discipline and behaviour of our Armed Forces should be contained in one Act. Not only will this alleviate the problem of potential conflicts between Acts, as has been happening with the Human Rights Act, it will make it easier for the Armed Forces themselves to be aware of and to be dealt with by their own specific legislation. I look forward to the Minister’s response on that point. I hope he will be as forthcoming as possible about the Government’s intentions in this area so that the opportunity to debate and help form acceptable legislation is not missed. This should not be in any way a party matter and I hope the debate will avoid any such approach. The Armed Forces are ultimately responsible to the Government of the day, regardless of which party may be in power. I look forward to the noble Earl’s response. I beg to move.
Lord Hope of Craighead (CB)
I just want to make one or two short points. It is interesting that although the noble and gallant Lord is perfectly correct that it is not the practice in the United Kingdom for there to be any statutory limitation on prosecution for crimes other than summary crimes, it is quite commonplace in the civil law countries for there to be limitations. So our allies in France or Germany, for example, would, I suspect, be protected by a limitation of the kind proposed. I am not suggesting that we should adopt that philosophy, which is quite contrary to our practice, as we can see in cases of historical child abuse. I wonder, however, whether the wiser course, rather than going into the area of limitation, which is so difficult and would be seen as an invitation to start doing this for other crimes, would be simply to have a blanket immunity for our servicemen when engaged in military operations, of the kind that I think used to be the case—I stand to be corrected—before the law was changed some years ago by the previous Armed Forces Act. This is certainly an important point to consider, but I favour doing so not by way of limitation but by way of exclusion entirely for acts of that kind while engaged on military operations, while making it quite clear that we are not dealing with cases of one serviceman on another—let us say of one serviceman assaulting another, stealing from him or things like that.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, as I indicated at Second Reading, I, too, am entirely sympathetic to the general feeling underlying this amendment. As the noble and gallant Lord has said, he is not wedded to this language. I am not clear, for example, whether,
“engaged in military operations outside the United Kingdom”,
would include peacekeeping operations in Northern Ireland, or matters of that character. However, I also see the basic difficulty, as my noble and learned friend Lord Hope indicates. This is certainly contrary and alien to English law down the years. We recognise the problems of delay, and if you can show plain and incurable prejudice through delay, you might well get the cases struck out. One would hope for a measure of fastidious thought before anybody launches prosecutions in these cases. It is deeply offensive to people that, in relation to the problems in Northern Ireland, amnesty was given to a whole lot of terrorists, but there is still a risk, apparently, on the part of the soldiers who were acting on our behalf.
I am a bit troubled by my noble and learned friend Lord Hope’s suggestion of a blanket immunity. What happens if there is a clear case of murder on the face of it? Should we really, with ample evidence and so forth, say that there can be no prosecution? I do not know: would Sergeant Blackman have taken the benefit of that? One must have regard to where these things go, but I certainly hope that the Government will give very sympathetic thought to this. A clever and ingenious lawyer might be able to find some formula whereby what I suspect all of us here feel could be reflected in some form of protection for those on active service abroad.
Baroness Smith of Newnham (LD)
My Lords, I was not able to speak at Second Reading, and I would like to briefly reassure the noble and gallant Lord, Lord Craig, that the Liberal Democrats have no intention whatever of trying to sabotage this Bill in any vainglorious or other way. We are committed to the Bill, and, like other Members of your Lordships’ Committee, to ensuring that the Bill becomes as good as it can be.
We do not wish to civilianise the Armed Forces, as the noble Viscount, Lord Slim, said on Tuesday: we certainly have no intention of doing that. However, there are some concerns about this amendment. Although I accept that it is a probing amendment, we share the concerns of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that there is a danger in either a blanket limitation or looking at things that are any sort of military operation. There may be cases that clearly should not be dealt with after 20 years; there may be other cases that need to be looked at. In cases of murder, rape or the sort of crimes that we were talking about in previous amendments, it would seem extremely strange to service men and women and their families if we somehow said, “If this happened in civilian life, you might get closure, but if it happens while your son or daughter is overseas engaged in military operations, there is a 20-year cut-off, and the rule of law no longer holds”. I ask the Minister whether it would be possible to find a way of dealing with the genuine concerns that have been put forward in the amendment that would ensure that service men and women and their families felt reassured that they were not going to lose the rule of law as would normally be expected.
Earl Attlee (Con)
My Lords, I share the concerns of the noble and gallant Lord, Lord Craig. I am particularly concerned about putting retired servicemen in the frame again after there has been a judicial inquiry. It might be that a subsequent judicial inquiry comes to a different conclusion, but once you have had a judicial inquiry and no prosecutions have arisen, servicemen ought to be able to carry on with their duties, retire and not worry about further legal action; they should not be worrying about further legal action for the rest of their natural lives. I very much support the general thrust of his amendment, therefore, but perhaps it needs some more tests—in particular, in relation to the case we are obviously talking about but not mentioning, that there has been a judicial inquiry.
Lord Tunnicliffe (Lab)
My Lords, we recognise that there is an issue in this area, but, according to my understanding of the law, this is not the way to address it. As I understand the application of the law to service personnel, they come under both the military law—the 2006 Act—and the general law of the land. This is not generally a problem, as, by arrangement between the two authorities, a decision will be taken about which law someone is prosecuted under.
I understand—I may not be right—that there are statute of limitation provisions in service law but no significant statute of limitations in English criminal law. There is a considerable statute of limitations in civil claims—a great big schedule—but the application of a statute of limitations in criminal law is limited to summary offences only. In practice, from my brief research this morning, that generally seems to mean motoring offences in magistrates’ courts. To introduce a limitation of this magnitude into the normal body of English law, which is what we would be doing, would be a radical change, and I do not believe the Bill is the right vehicle to introduce such a radical change for one narrow purpose.
Many would argue that we should rethink the whole issue and that the prosecution of historical cases is not sound. The only time I have been in court as a witness, my evidence was useless, because it referred to things that had happened at a meeting—one of about 400 I would have had that year—six years before. I was asked for precise details, and my standard, and absolutely honest, answer was, “I cannot recall”. I have trouble remembering most of the details of last week, never mind 10 years ago. So there is a real evidential case for looking at that issue.
Nevertheless, public opinion is, in many ways, the very opposite at the moment. In many ways, public opinion, particularly in the sexual cases coming before the courts at the moment, is in favour of pursuing historical cases—in one case related to this House, even after the death of the supposed perpetrator. There is a real tension between public opinion and the whole “old evidence” issue, which I think has some validity and which I suspect wider society will need to debate in the years to come.
In our view, a change as radical as this—as I understand it—for such a narrow purpose should not be in the Bill and should not go forward without wide public discussion and analysis and a recognition that it would have to flow right through criminal law. It cannot realistically be related to this single, narrow area.
Lord Thomas of Gresford (LD)
My Lords, there is no limitation on serious criminal cases, and that is part of the criminal law. In this area, I think of the war crimes that, until very recently, were still being brought forward relating to the Second World War as a result of investigations into the actions of German soldiers in prison camps and elsewhere. The thought that that type of case would be barred through limitation would have a very unfortunate effect on the victims of the Holocaust, who feel those crimes so strongly, and rightly so.
As a result of the debates we had on Tuesday, and this debate, my view is that the clever and ingenious lawyers in the Ministry of Defence should be thinking about putting the concept of combat immunity into some statutory form, to define the boundaries of it so that commanders who are engaged in warfare know that if they are in a combat situation they do not have to worry about criminal civilian law affecting them personally, and so that the soldiers involved do not subsequently face criminal charges as a result of their conduct in the clash of arms—the warfare itself. But “military operations” as in the amendment can cover such a wide area and I do not think that we should go against the whole thrust of the common law and the whole purpose of the criminal law by an amendment of this sort. There are other ways. What is combat immunity? What are the boundaries? They may be fuzzy at the edges but I am sure they are capable of statutory definition.
Lord Brown of Eaton-under-Heywood
I do not want to be tiresome but combat immunity, as I understand it, has never applied in the context of criminal law at all. It is a purely civil law concept.
Lord Thomas of Gresford
Perhaps it could be used as a criminal law concept. Perhaps the lawyers would like to think about it. I follow what the noble and learned Lord says on that.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, this amendment would introduce a time bar on bringing prosecutions against members of the Armed Forces, shielding them from prosecution for their actions while engaged in military operations outside the United Kingdom. The time bar would apply to their acts where more than 20 years had passed since those acts took place.
It is important to be clear, as noble Lords have observed, that the amendment would prevent personnel being prosecuted under either the service justice system or the civilian criminal justice system. It would cover all offences, not only against civilians or prisoners of war but against members of our own Armed Forces; for example, if evidence eventually came to light that a soldier had murdered another soldier while on operations, there could not be a trial if more than 20 years had passed.
I have much sympathy with the reasons that I know underlie the amendment. If criminal allegations are raised many years after the events in question, witnesses may be dead, memories may have faded and documentary evidence may have been lost. Indeed, those difficulties can be encountered even after a few years, never mind many years. However, I was grateful for the comments of the noble Lords, Lord Tunnicliffe and Lord Thomas of Gresford, and the two noble and learned Lords, among others. Members of our Armed Forces engaged in military operations must be subject to the rule of law and I cannot support a blanket ban on prosecutions of members of the Armed Forces after a stated period.
As the Committee is aware, the Armed Forces Act 2006 contains a system of service law that applies to members of the Armed Forces wherever in the world they are operating. This makes provision that a member of the Armed Forces commits a service offence if he or she commits any act overseas which would be an offence under the law of England and Wales were it done here. I am afraid I cannot see on what principle we should make an exception from the criminal law for those in military service overseas.
It is worth emphasising that, in both the civilian and service justice systems, when considering any case prosecutors are required to consider not only whether there is sufficient evidence to provide a realistic prospect of conviction but whether a prosecution is in the public interest. It has never been the rule that a prosecution will automatically take place once the evidential stage is met. Similarly, in the service system prosecutors are required to consider whether a prosecution is also in the service interest, including service interest factors. Clearly, if the offence is more serious, the public interest for a prosecution is more compelling.
It should also be noted that before a former member of the Armed Forces can be prosecuted for a criminal conduct service offence in respect of things that they did during their service, the consent of the Attorney-General must be obtained if more than six months have passed since they left the Armed Forces.
I am of course aware of the concerns expressed by the noble and gallant Lord over investigations by the service police of events in Iraq many years after those alleged events. In many of these cases, the allegations were not made immediately—for reasons which are not always clear. I assure the noble and gallant Lord, and the Committee, that intensive efforts are being made to bring these investigations to a conclusion as soon as possible. We are investing considerable resources in this area. We are looking at streamlined processes to ensure that those cases without substance are weeded out quickly, and so on. The Iraq Historic Allegations Team is doing an excellent job given the difficulties it faces. It has completed a number of investigations.
I do not believe for a moment that this process will still be in progress when the 20-year limit envisaged by the new clause would be reached. Indeed, the only theatre in which, so far as I am aware, criminal investigations or prosecutions of soldiers or veterans are in progress relating to events from more than 20 years ago is Northern Ireland, which is excluded from the scope of this clause because it covers only operations outside the UK.
I also assure the Committee that, while the Ministry of Defence will discharge its duty to provide any information in its possession relevant to such police investigations, it will also provide effective support, legal and pastoral, to veterans who may find themselves facing investigation for matters related to their duties. Although, I repeat, I sympathise with the concerns behind the new clause, in principle it would be wrong to provide an exception to the criminal law for members of the Armed Forces serving overseas in this way. On that basis, I hope that the noble and gallant Lord will agree to withdraw his amendment.
Lord Empey (UUP)
The noble Earl referred there to hoping that investigations would be brought to a speedy conclusion. Could he confirm that the Iraq investigation team will continue its operations until at least 2019? Also, on Northern Ireland, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, pointed out that some 40 years or more after the event a team of 30 detectives has been operating for the last three years doing nothing but pursuing these particular individuals, whereas the people who were the primary perpetrators of violence were away in the smoke many years ago.
Lord Tunnicliffe
The noble Earl seemed to say something fairly profound there about support for service personnel who may come under investigation in the Iraq cases et cetera, and about legal and historic pastoral support. Could he flesh that out, particularly the extent of legal support that he sees being provided? I recognise that might require a somewhat delicate answer so a written response could be more appropriate.
Earl Howe
I shall be happy to write to the noble Lord with further and better particulars on that issue. I add to the noble Lord, Lord Empey, that the aim of the Iraq Historic Allegations Team is to try to compete the majority of its investigations by the end of 2017. The team believes that that is within its grasp, although it may slip. I hope that is helpful as an indication of the timescale to which it is working.
Lord Tunnicliffe
Following the precedent of other Bills, when the Minister writes to me could he copy in any other noble Lord who has participated in the debate?
Lord Craig of Radley
My Lords, first, I thank all those who have spoken in this short debate. I made it very clear that my amendment was meant to be no more than a probing one, and I certainly did not expect the Minister to accept it as it was written or even close to what was written. But I am particularly grateful for the support that I have had for the thought behind what I was trying to get at, and I hope that the Ministry of Defence and the rest of the Government will continue to give this very close attention and not just park it as too difficult to deal with. It really does need to be dealt with. Meanwhile, I beg leave to withdraw my amendment.
Earl Attlee
“Operation of “pay as you dine” system
(1) Within 12 months of the coming into force of this Act, the Secretary of State shall lay a report before Parliament on the operation of the “pay as you dine” system of catering for members of the armed forces.(2) The report shall cover—(a) estimated numbers of service personnel who are in “single living accommodation” but are acquiring and preparing their food locally rather than using “pay as you dine” facilities;(b) any social impact, especially on military camaraderie, of service personnel either eating on their own or in small groups;(c) an assessment of the economics for service personnel; (d) comparisons between different services and different locations;(e) the effect of “pay as you dine” on a balanced diet; and(f) any other matter the Secretary of State thinks appropriate.”
Earl Attlee
My Lords, in the past, servicepeople living in barracks or the equivalent were charged for their food whether they ate in or whether they ate out. It could be the case that they were taking most of their food outside the barracks. This caused some resentment and a new system of pay as you dine was introduced several years ago. I shall not weary the Committee much further, as I do not oppose the policy, but I am concerned to ensure that it has not had undesirable or unintended effects. It may well be that there are differences between different locations and contractors; there could be the good and the not so good—and I am hoping that the noble Baroness, Lady Jolly, who has experienced pay as you dine more recently than me, may give us some of her experiences.
I am a little worried about balanced diets, about the pettiness in some locations of being charged for every extra portion of vegetables, and about any adverse effect on military cohesion. What I used to experience in what I would call the cookhouse, because I am so old-fashioned, was that you would sit down and have a meal with people with whom you might not normally sit down because they were in a different platoon or organisation. That is extremely beneficial and important to the unit, and I am a little worried about that. Furthermore, at one point, I found that the food in the cookhouse was better than the food in the officers’ mess, because in the cookhouse you got a wider variety.
I hope that when my noble friend replies he can give us an update on how the policy is working. It may well be that a review study has already been carried out. Perhaps the Minister could let the Committee have a copy. I beg to move.
Baroness Jolly (LD)
My Lords, I have had some experience recently in several officers’ messes of the Royal Navy, which all operate on a pay-as-you-dine basis. They are all outsourced, so they all operate on different principles. In one you might get all your vegetables including potato, while in others you might pay piecemeal—so there is no particular pattern. Were the department to do an analysis of the type suggested by the noble Earl, it might be worth looking at the issue of outsourcing. Is the same sort of thing happening across the other services? They say that an army marches on its stomach. This also highlights the issue of the quality of the food and the balance of the diet.
During recess, I was in the Arctic Circle; I am a member of the Armed Forces Parliamentary Scheme. I was taken to task by some marines who were talking to us about the quality of the ration packs that they take with them. I tried a chicken tikka masala, which had been dehydrated, and it was sort of identifiable. The serious point that they were making is that on an exercise such as that a marine should consume between 6,000 and 8,000 calories a day to be operational. There were several elements of the packs that were fairly good in terms of quality and being part of a balanced diet, giving them the nutrition that they needed, but they really resented that the calorie number was added to by putting in chocolate bars. They maintained that this was something on which they got a sugar high and then a sugar low straightaway, and that if we were really serious about them we should look again at the ration packs. Whether any dietitian has looked at them I know not, but the Minister might at some stage care to ask somebody who might know the answer to that question.
Another issue that has come up is with the Navy in particular. Clearly, ships need to carry chefs. With outsourcing, so that all bases at home are run by outside catering organisations, when a chef’s time for leave or a shore-based job comes up, there is nowhere for them to work because none of those opportunities is available. I know that the Navy is looking at that.
Those are short reflections for a very interesting topic, but perhaps not for legislation.
Earl Attlee
My Lords, before the Minister and the Opposition Front Bench reply, the noble Baroness made a very important point about the ration packs, which was slightly outside the scope of my amendment, but I have spoken slightly outside the scope of other noble Lords’ amendments. One of the challenges of manufacturing the ration packs is the exact point that the noble Baroness made about packing enough calories into them. It makes it very difficult to find suppliers that can pack that many calories into the packs.
Lord West of Spithead (Lab)
My Lords, I did not intend to speak on this, but I will say a couple of words—not that I try to eat my 6,000 to 8,000 calories a day. That is a real issue, but we are not on operations. I will speak on the concern that the noble Earl, Lord Attlee, expressed about cohesion. There is something in that. In the Navy we are all right. We are on ships and it is not pay as you dine—the food is there and we all eat together. When they are ashore and living in a barracks or a mess, compared with the old system where people went to the mess hall and all ate together, they now, instead of having barrack rooms, have individual cabins, which are much nicer, of course. There is a real danger of a lack of social cohesion. To be quite honest, I do not think there is anything that can be done about it. We have to move down this route, but it is right to be raised as an issue. Certainly, very junior ratings living independently in single cabins have to have particular care taken of them by their divisional officers, because they do not have that factor of living with other chaps and other people to help to support them. That needs very close looking at.
Lord Touhig (Lab)
My Lords, we all agree that having a healthy meal and good food inside us is important for increased productivity and performance. Not for nothing did Napoleon say that an army marches on its stomach. In the Armed Forces, being able to perform at your best is paramount to the role of those we ask to serve our country. Labour introduced the pay-as-you-dine scheme for the Armed Forces in 2006. I cannot remember whether I started it as a Minister, but I was certainly around as they were planning it. As noble Lords will know, I left the ministry soon after that, but that is nothing to do with this piece of legislation.
If required, service men and women who are single and live in service accommodation pay for their own meals when not on active duty, meaning that they would pay only for the meals they actually eat. Under the pay-as-you-dine system, they are responsible for their own meals and making healthy choices, which the Ministry of Defence encourages.
There have been many concerns about the scheme. Some report that it disadvantages the lowest paid in the Armed Forces, as they often run out of money to pay for their food at the end of the month. Others are concerned that individuals may not be following a healthy diet as a result of choosing and cooking their own food, and some, as is highlighted in the noble Earl’s amendment, are concerned that pay as you dine leads to a decline in camaraderie, as personnel of all ranks are not all eating together any more and are instead eating alone or in small groups. I do not want to say more about these concerns at this stage, although I recognise they are perfectly legitimate and should be addressed.
I suggest to the noble Earl that if he is not successful in persuading the Minister of the merits of his amendment, he should press for the information he is seeking to be included in the Armed Forces Covenant Annual Report. That comes out every year. We would then not need primary legislation. It would mean it would be reported every year, people would see it, it would raise the profile of the issue and some of the noble Earl’s concerns could then be better addressed. The Armed Forces covenant is our obligation to the military, and it is likely that this issue will get greater attention if we were to do it that way.
Earl Howe
My Lords, I welcome the initiative of my noble friend in reminding us that the health and well-being of our Armed Forces are especially important. Pay as you dine was adopted by the Armed Forces in 2005, as the noble Lord, Lord Touhig, mentioned. It replaced the deduction of food costs taken directly from pay at source, regardless of whether meals were taken or not.
At the moment, catering is provided for under the catering, retail and leisure contracts. Our industry partners are required to provide a core meal at each meal service of the day. Food is charged at cost, and contractors do not make a profit on the food they provide. Core meals served at breakfast, lunch and dinner provide a nutritious and balanced menu cycle. Throughout the day, when taken at each meal service, core meals provide 3,300 calories per day at a daily price of £4.79. A range of alternative meal choices is also available outside the core meal price.
We believe it is important to give service personnel the choice about how and where they spend their money with regard to food. We fully recognise that sometimes service personnel like to take their meals in a different environment, to visit their local shops to choose what they want to eat and even to cook their own meal. We have no reason to believe that this has a detrimental effect on unit cohesion, although I would not seek to belittle that as an important issue.
However, we recognise that some service personnel are not good at choosing a healthy diet, whether they are living in single living accommodation or not. This is, of course, not a problem that affects just the Armed Forces—it is a reflection of wider society and there is much concern about unhealthy lifestyles generally—but we aspire to bring about change and we acknowledge the need for members of the Armed Forces to be better informed.
We are therefore working in partnership with Public Health England to produce some lifestyle guidance for service personnel. In parallel, the services are developing a new programme to educate personnel in healthy lifestyle choices, including diet and nutrition, and encourage a change in their behaviours. Dieticians, general practitioners, physical development experts and public health consultants are among those who have contributed to this work. I will write to the noble Baroness, Lady Jolly, on ration packs.
I thank my noble friend for his interest in the pay as you dine system, but I do not believe his amendment is necessary. However, there is no sense of complacency here. Various assurance activities related to the system take place, including contract monitoring, site visits, reviews, customer engagement and assurance by single-service catering subject-matter experts to evaluate and improve the service provided. I hope that, with that measure of reassurance, my noble friend will feel able to withdraw his amendment, but naturally, if he feels that there is any more information I can provide him with, I shall be happy to do so.
Earl Attlee
My Lords, I am grateful to all noble Lords who have contributed to this short debate. The thing that slightly worries me is that the Minister did not offer to give us any information from any reviews. He said that reviews had taken place, and presumably those review reports could be obtained under FoI, so there does not seem to be any good reason why we should not see a copy of the relevant review, just to see how it is going. Maybe the Minister would like to reflect on that to see whether there is something.
Earl Attlee
I thank the Minister for that undertaking. The noble Lord, Lord Touhig, tempted me to table a suitable amendment relating to the Armed Forces covenant and the requirement to produce reports. My ration of unhelpful amendments is strictly limited, so I do not think I will be doing that. I beg leave to withdraw the amendment.
“Enlistment of minors
(1) The Armed Forces Act 2006 is amended as follows.(2) After section 343B (interpretation of Part) insert— “Part 16BREPORT ON THE ENLISTMENT OF MINORS343C Report on the enlistment of minors(1) The Secretary of State must in each calendar year—(a) prepare a report on military service by minors; and(b) lay a copy of the report before each House of Parliament.(2) The report must evaluate the effects on the individual, and on the armed forces, of the enlistment of persons under the age of 18.(3) In preparing the report the Secretary of State must have regard in particular to—(a) the principle that the best interests of minors must be paramount in all policy relating to them;(b) whether service people under the age of 18 are at a disadvantage in the immediate and long term future when compared to civilians of the same age, including disadvantage in education and training; and(c) any implications for the armed forces, including financial implications.””
Lord Judd (Lab)
My Lords, in moving this amendment, I should first say that the noble Baroness, Lady Jones, contacted me this morning to say how sorry she was that other commitments made it impossible to be here, and how strongly she supports the amendment.
I particularly thank the Minister for his very courteous response on several occasions to my concerns in this area, and I thank his many officials for the helpful letters they have sent us. I would like the Minister’s reassurance that this correspondence will be made readily available to a wider audience than just me, and I hope that it has been, or can be put in the Library.
I also want to put on record my very real appreciation to a number of concerned organisations, including, of course, Child Soldiers International, which has impressed me by the responsible and well-researched approach it brings to giving substance to its generalised concerns.
When I tabled a very similar amendment in 2011, the noble Lord, Lord De Mauley, on behalf of the Government, replied that it was unnecessary because the annual Armed Forces covenant report would take special account of the needs of those under 18 years of age. I may have misread it, but in the 114 pages of the 2015 covenant report, any mention of minors is conspicuous by its absence. Will the Minister now give a firm undertaking that in future editions of the covenant report, the three key points raised in my amendment will be fully covered? His response on this will obviously bear on how I decide to take the amendment forward.
Fewer than 20 countries still allow in law the direct recruitment of 16 year-olds by their Armed Forces. We in the United Kingdom are among them. We are the only major military power, the only country in Europe, and the only member of NATO to do this. Two-thirds of states worldwide now recruit only adults from the age of 18 into their Armed Forces, and this is becoming the global norm.
Among those to have challenged our existing system are that UN Committee on the Rights of the Child, the Commons Defence Committee, the Joint Committee on Human Rights, the Office of the Children’s Commissioner for the four jurisdictions of the UK and the Equality and Human Rights Commission. Major British children’s organisations and human rights groups have called on the Armed Forces to recruit adults only, as indeed have a significant number of MPs across the political spectrum, many faith groups and indeed, veterans. The public seem to agree with this. Answering an open question in a 2014 Ipsos MORI poll about what recruitment age should be, 77% of those who expressed a view said that it should be 18 or above; only 14% thought it should be 16.
The Earl of Dundee (Con)
My Lords, I support the amendment moved by the noble Lord, Lord Judd, and the noble Baroness, Lady Jones of Moulsecoomb, who cannot be here today. Indeed, they might possibly have advocated discontinuation straightaway. As the noble Lord pointed out, in advancing a strong argument, there is a good case for no longer enlisting 16 and 17-year-olds into the Armed Forces. Most other countries would agree. Indeed, as he has also reminded us, Britain is the only country in Europe, and the sole member of the United Nations Security Council, that enlists 16 and 17-year-olds, yet the amendment provides that we should decide what to do after building up our own proper evidence, such as would accumulate through systematic annual reports produced by the Secretary of State. This balanced approach is commendable, and consequently the amendment is all the more compelling.
However, along with what is proposed, and provided that the discontinuation of enlisting minors were to be supported by further evidence, as envisaged, I wonder if my noble friend the Minister, together with the noble Lord, Lord Judd, might connect a time structure within which the Secretary of State could decide about abolition. In due course, as a result, evidence-based abolition might then ensue, without unnecessary delay or procrastination.
Lord Tunnicliffe
My Lords, the amendment from my noble friend Lord Judd is clearly designed to cover the general issue of the recruitment of 16 and 17-year-olds into the Armed Forces. It is worth reflecting on the history in this country of young people in the Armed Forces. In the 19th century, two young men—aged 15, I think—received Victoria Crosses. I have no doubt that on 30 May, my noble friend Admiral Lord West will find some way of reminding us that it is the 100th anniversary of the Battle of Jutland, at which, famously, a young person, Jack Cornwell, Boy 1st Class, won the Victoria Cross at the age of just 16. So before discussing the present terms of recruitment, we must remember that in the past young recruits have played a brave part in the history of our Armed Forces.
Things have changed, however; nobody would suggest it is other than absolutely right that things have changed. In terms of how we represent ourselves to the world, these young people, the terms and conditions, and so on, we must take a thoroughly modern approach. I hope that the approach being taken by Her Majesty’s Armed Forces is satisfactory, but this is an appropriate occasion to test those conditions and receive, I hope, assurances from the Minister. He has helpfully sent us an email, which I will quote from, and I hope he will read those assurances into the record. In his email, he makes a number of points, but I will quote the key ones:
“No-one under the age of 18 can join the Armed Forces without formal parental consent, which is checked twice during the application process … Service personnel under the age of 18 are not deployed on any operation outside the UK except where the operation does not involve personnel becoming engaged in, or exposed to, hostilities”.
The third important point is:
“All recruits aged under 18 are enrolled onto apprenticeships”.
Obviously, it would be useful if that could be fleshed out a little more. The next point is:
“All Service personnel have a statutory right to claim discharge up to their 18th birthday, and the right of discharge is made clear to all Service personnel on joining the Armed Forces”.
Given those assurances, we continue generally to support the recruitment of young people into the Armed Forces. We think it has the potential to provide a good grounding for their future career and life in general.
Earl Howe
My Lords, I very much welcome the interest of the noble Lord, Lord Judd, in this issue, and his reminding us that the welfare of those who join the Armed Forces under the age of 18 is especially important. I begin by assuring noble Lords that we take our duty of care for entrants aged under 18 extremely seriously. Close attention has been given to this subject in recent years, especially after the tragic deaths at Deepcut. We have robust, effective and independently verified safeguards in place to ensure that under-18s are cared for properly.
I should perhaps make it clear at the outset that all service personnel have, since 2011, a statutory right to claim discharge up to their 18th birthday. The right of discharge is made clear to all service personnel on joining the Armed Forces. I will say something more about that shortly. Before I do, I need to say to the noble Lord, Lord Judd, that I do not share the negative slant that he sought to cast on the enlistment of minors. We are very clear in our belief that junior entry offers a range of benefits to the individual, to the Armed Forces and to society, providing a highly valuable, vocational training opportunity for those wishing to follow a career in the Armed Forces.
The noble Lord mentioned educational attainment. The provision of education and training for 16 year-old school leavers provides a route into the Armed Forces that complies with government education policy, while also providing a significant foundation for emotional, physical and educational development throughout an individual’s career.
There is no compulsory recruitment into the Armed Forces. Our recruiting policy is absolutely clear: no one under the age of 18 can join the Armed Forces without formal parental consent, which is checked twice during the application process. In addition, parents and guardians are positively encouraged to be engaged with the recruiting staff during the process. We also recognise that not all those recruited find that they are suited to life in the Armed Forces. In 2011, the Armed Forces terms of service regulations were amended to provide all service personnel under the age of 18 with the right to claim discharge up to their 18th birthday.
I wish to allay any concern that discharge as of right is ineffective. The noble Lord, Lord Tunnicliffe, asked about the ways in which discharge is facilitated. The Army recruits the majority of under-18s. I assure the Committee that every junior soldier arriving at the Army Foundation College in Harrogate is briefed by the permanent staff on their rights to discharge. Junior soldiers sign and retain the personal terms of service record of briefing and understanding, and the college retains a copy. The brief and document clearly set out the right to discharge and the process to be followed. During the reception day, the junior soldiers’ company commander briefs all parents and guardians in attendance on the processes involved in discharging junior soldiers, who have ample opportunity to seek advice on discharge outside their training team from the extensive welfare staff network and from fellow junior soldiers—particularly those in the senior intake.
Regardless of whether they are still in training, the regulations provide that for the first six months of service a person may claim discharge by giving not less than 14 days’ notice in writing to their commanding officer after an initial period of 28 days’ service. At any other time after six months’ service, those under the age of 18 who wish to leave must give notice in writing to their commanding officer who must then discharge the under-18 within the next three months. For those who give notice just prior to their 18th birthday, this means that the latest they will be discharged is at 18 years and three months of age. Those three months represent a cooling-off period, to avoid the unintended consequence of a decision made in the heat of the moment—say after just having failed a test or while feeling homesick.
A shorter period may well be agreed with the commanding officer, but three months provides the under-18 with a period of due reflection and the right to rescind their request for discharge. This process ensures that individuals under the age of 18 have an appropriate period of time to consider their decision to leave, and offers flexibility depending on individual circumstances. Voluntary discharge accounts for approximately 65% of those who do not complete the course at the Army Foundation College. I can also say that the college has routinely discharged those who are unhappy but may no longer claim discharge as of right, because clearly it is not in the Army’s interest to retain those who feel that way.
I also wish to say something about those who leave early. Indeed, I quote from one of Ofsted’s reports, which says:
“Early leavers receive very good additional support in developing job search skills, writing CVs and researching further education opportunities … families are kept well informed at all stages of the process, and appropriate help is sought to look after children”.
On those who choose to stay, all recruits aged under 18 receive key skills education in literacy and numeracy, should they need it, and all are enrolled onto apprenticeships. The Armed Forces remain the UK’s largest apprenticeship provider, equipping young people with valuable and transferable skills for life, based on structured training and achievement. Over 95% of all recruits, no matter what their age or prior qualifications, enrol in an apprenticeship each year.
The Armed Forces offer courses in a wide range of skills, such as engineering, information and communications technologies, construction, driving and animal care. Ofsted regularly inspects our care of newly-joined young recruits, and we are very proud of the standards we achieve. We welcome this specialist confirmation that we treat our young recruits well.
The noble Lord, Lord Tunnicliffe, mentioned the United Nations Convention on the Rights of the Child. The protection and welfare of our young people, as is required by Article 3, are important. The Armed Forces are careful to ensure that appropriate mechanisms are in place to comply with the law and to afford special consideration of the needs of under-18s. This extends to the service justice system, where appropriate.
What does that amount to in practice? Commanding officers are provided with guidance on the care of service personnel under the age of 18. Guidance covers supervisory arrangements, risk assessments, welfare and mentoring, and contact with parents and guardians. It also covers such things as prohibiting the sale of alcohol and tobacco, the requirement to provide an appropriate adult for those who are arrested and, of course, the right to discharge. I should also remind the Committee that service personnel under the age of 18 are not deployed on any operation outside of UK, except where the operation does not involve personnel becoming engaged in, or exposed to, hostilities.
During the Select Committee on the Armed Forces Bill, the Chief of the General Staff, General Sir Nick Carter, described the recruitment of young people as “incredibly positive”. I take pride in the fact that our Armed Forces provide challenging and constructive education, training and employment opportunities for young people while in service. I suggest that this is the right end of the telescope through which to look.
The Armed Forces Covenant Annual Report is about the effects of service on service people. Those under the age of 18 are well within the definition of service people, but this amendment would require the Secretary of State to give particular consideration, every year, to the effects of service on those under 18 years of age. It would also require him to have particular regard to those effects right through until the individuals become veterans. It obliges us to treat those who joined under the age of 18 as a separate category throughout their service and perhaps throughout their lives. I am not persuaded that this would be right or appropriate. It is perhaps relevant to mention that in July 2015, the High Court dismissed a judicial review brought by Child Soldiers International—CSI—alleging that the enlistment of Army recruits aged 16 to 18 was in conflict with the equal treatment directive.
I do not believe that this is an appropriate distinction to build into legislation, but I nevertheless hope that my remarks have been reassuring to the noble Lord, Lord Judd, in so far as he can be reassured on this topic. I am happy to circulate the letter that I sent him if it has not already been circulated. I am glad it was helpful to him. On that basis, I hope the noble Lord will agree to withdraw his amendment.
Lord Judd
My Lords, I am very grateful to the Minister for his characteristically full and sensitive reply. I shall just say that there are at least two letters, not just one, that should be available.
Let us be very clear about this: I made it plain in my introductory remarks that I am open-minded on this issue. I can see advantages and I can see social advantages. It is very easy for people in caring, comfortable, middle-class life to be worried about others and to raise issues that concern them, but when you look at the harsh realities of life for some of those who are recruited, it perhaps brings a different perspective to the situation because what are the alternatives? They are gangs, drugs and goodness knows what. We must be realistic about this.
My concern is that we have the highest standards and that these are all the time transparent. I cannot for the life of me see why it would not therefore be very sensible to have an arrangement in the Bill which enables this scrutiny to take place. We in Parliament have special responsibilities as custodians of these children. It therefore seems very important indeed that this issue should be openly discussed and evaluated.
Lord Thomas of Gresford
“Inquests
Every violent or unnatural death of every person subject to service law whether within or outside the United Kingdom shall be reported as soon as practicable to a coroner who shall determine by what means and in what circumstances the deceased came to his death.”
Lord Thomas of Gresford
My Lords, in 2006 I moved an amendment in these terms to the 2006 Bill with the support of my noble friend the late Lord Garden. At that time, inquests involving the services were very much a controversial area. There were long delays and lots of families were very concerned about the fact that these inquests took such a long time and seemed to be so unsatisfactory. At the same time, coroners were making some very trenchant criticisms. Lord Garden and I thought it would be right to have a statutory duty making it quite clear that the coroner should have jurisdiction in this area and that cases should be reported to him by commanding officers, in the terms of the amendment that I put forward.
That amendment was not accepted, but after that the Army itself became concerned and set up Project Ajax, and in 2008 the Defence Inquests Unit was formed. It is interesting to note that Mr Mike Venables, the head of that unit, said that,
“the MOD was struggling with how we handled inquests because there was no focus … The families were dissatisfied by the service they were getting and by the way that inquests were working. Many didn’t understand why we were having them or what they were for”.
The unit went to work. It seemed to have a number of aims. On the first aim, Mr Venables said:
“Our role is to support bereaved families”.
Its next role was to train coroners and explain the particular circumstances in which a death had taken place, to identify and locate military witnesses, to furnish reports and information to the coroners and to organise a familiarisation event—annually, as it turned out—so that coroners would know what vehicles and kit were used on operations and what mine clearance drills were, and could experience the weight of packs that troops carried, and so on.
Case officers under the unit read through the Royal Military Police reports, Special Investigations Branch reports and witness statements before handing them to the coroner. Colonel Newell, who was in charge, said:
“We read through everything first and redact them for security—which is something that they do worry about so we explain that … We point them”—
the coroners—
“to what we see as the salient information and suggest who we see as the key witnesses who should be called to the inquest. We provide them with a Rolls-Royce service”.
The next function was to provide support to witnesses. Mr Venables said:
“It can be a hugely difficult experience for some witnesses … we don’t…coach them. All we say is, ‘you’ve got nothing to fear from this, all you have to do is tell the truth’”.
So the unit seems to have various conflicting aims.
The purpose of my tabling this probing amendment today—in identical terms to the one we tabled in 2006—was to inquire into how the system is working and whether it is satisfactory. Case officers under the unit appear at inquests for the Ministry of Defence, so not only are they training and advising coroners, and redacting witnesses’ reports; they are actually appearing for the Ministry of Defence at inquests. That must cause concern to families who wonder whether their purpose is to protect the Ministry of Defence from the sort of trenchant criticisms that, as I indicated, were very much abroad in 2006 when we first approached this problem.
I will be interested to hear the Minister’s response. I may not have expressed quite clearly the full scope of my intention in tabling this amendment—I apologise for that—but I commend it to the Committee.
Earl Attlee
My Lords, I am grateful to the noble Lord, Lord Thomas of Gresford, for raising the issue of inquests. He has raised some important issues.
For many years, I have not been able to give my counsel on this matter because sadly we were taking many casualties on operation and, therefore, the timing was completely wrong. I must stress that I have no intention of pressing any of my own amendments relating to this issue at a later stage—I am merely giving my counsel—but I intend to compete with noble Lords who are lawyers in terms of the amount of detail that I will give. I accept that matters have improved with these inquests, but I am still not convinced that holding detailed inquests into fatalities incurred on operations overseas is likely to reduce casualties or be a good use of resources. I hope the Committee will allow me to explain why before calling for the silken rope.
All members of our Armed Forces should be highly motivated. Most of them will have a secret dream of being able to have strategic effect, even if it involves a significant risk to themselves. By “strategic”, I mean an action they take that significantly alters the outcome of the campaign. That is why many servicemen with particularly good qualities seek selection for Special Forces. Their incentive is that they are very likely to be able to have strategic effect at some point. One can also have strategic effect by denying the enemy’s strategic effect. That is what the off-duty serviceman did in France in that train attack, and it is an issue to which I will return at a later stage.
I understand that, prior to the mid-1980s, it was not necessary to have an inquest into an overseas operational fatality. The law changed, but it did not matter, because there were very few hot operations. If we had ever engaged in conflict with the Warsaw Pact, we would not have been worrying about inquests. I am very sorry, but I think that these inquests into operational fatalities have limited utility. If we think that we need inquests to learn from what went wrong, we are deluding ourselves. As I touched upon in the human rights amendment on the first day of Committee, quite often the deceased, or someone closely involved, made a misjudgment or a mistake. That is the nature of military operations. As I said then, this makes it extremely difficult for the MoD or the chain of command to explain these facts, because we would be shocked if those on the ground at the time were blamed. According to Wikipedia, in Sergeant Roberts’s case, very unfortunately, the soldier who fired the coaxial machine gun on the Challenger tank did not know, or he forgot, that there was a parallax effect in short range. Does anyone seriously think that that error would not have been immediately reported back to the Armour Centre in Bovington and compared with the existing training plans? Of course not.
One inquest that I read about centred on electronic countermeasures. The feedback cycle in this area is extremely fast: days, if not hours. It must be extremely demoralising for the experts—sometimes, I think the term “boffin” is rather more complimentary—at the Defence Science and Technology Laboratory, to read these unfair criticisms in the press. The reality is that we have a fabulous capability in this area and we should be very grateful. Think how demoralising it must be for the Taliban to take the very real risk of planting an IED, only for the initiation system to fail for some mysterious reason at the crucial moment.
Some argue that we need the coronial system to identify any defects in training and procurement. I touched on this during the first day of Committee and remind your Lordships of my inverse law: the attention and scrutiny applied to a fatality on operations is inversely proportional to the number of fatalities taken. That is why I believe that inquests into operational fatalities have limited utility. I also remind the Committee that they soak up considerable amounts of staff effort that could be better spent on prosecuting the campaign. I fear, however, that this is nothing compared to the negative effect.
In order for the enemy’s leaders to motivate their own side to make a very risky or even suicidal attack on coalition forces, it would be an enormous help to them if they could show that the attack would have strategic effect. We cannot avoid the MoD making the formal announcements of casualties or fatalities: we know perfectly well that it would be deeply damaging to mislead the nation regarding the level of casualties that we are taking on an operation.
What we actually do is have an exercise to publicly blame Ministers and then the chain of command for things that have or are alleged to have gone wrong when, for reasons I explained, they cannot effectively defend themselves without acting improperly and damaging morale. It should also be remembered that service personnel in theatre read newspaper reports and have access to the internet. It must be quite easy to damage confidence, especially that of more junior personnel. Reports of discord can also be shown by the enemy’s leaders to their subordinates to motivate them to make an attack which they can, frankly rightly, claim will have strategic effect.
Lord Brown of Eaton-under-Heywood
My Lords, I had not intended to speak to this amendment; I ought to be better prepared. Down the years, I have often been involved with coronial law. Indeed, I was Treasury Counsel in the early 1980s when for the first time it was decided, contrary to my argument, that there could be an inquest in this country in respect of a death abroad. It was the Helen Smith case. She was the nurse who fell from a balcony in Jeddah on to some railings and impaled herself. There was long, fraught litigation in the early 1980s. Since then, this area has developed hugely and has been complicated and clouded by the impact, reverting to where we were earlier in the week, of Article 2 of the European Convention on Human Rights and the need, in certain circumstances, for an Article 2-compliant investigation into a death.
I confess that when I first read the proposed new clause, I rather thought that that essentially is the present law. I shall listen, fascinated, when the Minister tells us exactly what the present position is in terms of inquests in respect of such deaths as are encompassed here. Certainly, I understand that the coroner will be informed in every case. There will always be an inquest, and he will always determine by what means the death occurred. The phrase “and in what circumstances” may be more contentious because this is a very technical area and I seem to recall that that phrase has been the subject of a good deal of specific litigation about exactly what it encompasses.
There is routinely an inquest in these cases. As I understand it—but this is very much anecdotal—the result of our now having and retaining a chief coroner is that these inquests are now heard by a comparatively limited number of coroners and essentially they deal with these matters in a way which is regarded as essentially satisfactory on all sides. That may be a misunderstanding of the position, and I know there was a problem some years ago when coroners were thought to be seeking to investigate way beyond the scope of what ordinarily would be permitted in terms of inquiring into military supply and matters of that sort, but I thought it was now under control. However, I shall say no more. I do not think this is a very useful contribution. I shall listen to what the Minister says.
Lord Hope of Craighead
My Lords, there is one aspect of this amendment to which I think I should draw attention. It arises because of its scope. The amendment applies to every violent or unnatural death of every person subject to service law within the United Kingdom. The coronial system does not apply in Scotland. I do not know whether it is the intention that we should extend the coronial system to Scotland in the case of every violent or unnatural death, but the system which applies in Scotland is very simply this: every death of that kind is reported to the procurator fiscal of the area in which the event occurred. There is then an exercise of discretion because it does not follow that every death is subject to an inquiry. It is a matter for the procurator fiscal, possibly with the advice of a law officer or his counsel, to decide whether it is in the public interest that there should be an inquiry. If there is such an inquiry, it goes not to a coroner but to a sheriff, who does indeed determine by what means and in what circumstances the death occurred. It is there that the public interest is served because if there is something to learn from the event, the opportunity is taken through the accident inquiry to determine the circumstances and in some way to improve practice or inform the public about how events of that kind could be avoided in future.
As I listened to the debate I wondered whether that system applied in the case of persons subject to service law. I think I am right in saying that when one reflects on the tragic events on the Mull of Kintyre, when a Chinook helicopter flying from Northern Ireland to Scotland with a number of very senior people on board crashed and everybody was killed, that event was dealt with under the Scottish procedure. I would have thought that that procedure is perfectly adequate to cope with all that one would expect from events of this kind and the need for the circumstances to be inquired into.
There are two features that need to be stressed. First, not every death of this kind is the subject of an inquiry because it is only if the public interest requires it. On the other hand, where the inquiry is resorted to, it is a full inquiry, with the results that I think the noble Lord, Lord Thomas of Gresford, is looking for; that is, the lessons to be learned from the evidence that is laid. I wonder whether he really does intend that every death—even a road accident, for example—occurring north of the border should be subject to this system; or, to take another example, whether training exercises in the Highlands, where unfortunately deaths do occur due to the very severe weather on mountains, should be subject to the coronial system. I think the Scottish prosecutors—the procurators fiscal, I should say—would rather that they retained control of these events and dealt with them under the Scottish procedure, which they would believe is perfectly adequate to provide the lessons that people need to avoid these events occurring again.
Lord Thomas of Gresford
My Lords, there were specific provisions in the Coroners Act 2009 relating to investigations in Scotland. Sections 12 and 13 provided that the Secretary of State would notify the Lord Advocate if,
“the Chief Coroner thinks that it may be appropriate for the circumstances of the death to be investigated”,
and there would be an inquiry under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976. I think that is the position.
Earl Attlee
My Lords, the noble and learned Lord, Lord Hope, talked about training fatalities. My view is that all training fatalities, wherever they arise, should be subject to an inquest. I think there is a far bigger problem with training accidents than with operational fatalities. Those occur where the enemy has a better position on you and sadly some servicemen are unlucky, but with a training accident, it is quite likely that something has gone wrong.
Lord West of Spithead
My Lords, I have a certain sympathy with what the noble Earl, Lord Attlee, has said. Indeed, I think that the coronial system, certainly when it was first being used for these sorts of events, was giving some very unfortunate results. There is no doubt whatever that one or two of the coroners were going way beyond what was required, and it put the whole thing into dubious territory and people began to think, “Why on earth should we do this at all?” because it was so damaging.
In terms of telling people what has happened, we talk of the next of kin’s need to know, which is absolutely right, but of course we have an established system whereby as a commanding officer you write a letter—I have written many of those letters—to the next of kin, explaining what happened and talking about their son, husband or father. Indeed, on the subject of fathers, I used to write another letter to all the children, to be opened when they were 18, explaining what had happened. I also let it to be known to all the families that they could come and talk to me about it if it happened. I am sure most COs do similar things. Indeed, a number of the next of kin took that up and I was able to sit down and talk it through with them.
I think the coronial system has got better but I still have concerns that there is the risk of this becoming a blame game. That is not what was intended at all and I was very nervous about that. I am not sure about this amendment but I think some of those wider issues that have been talked about are important and I am pleased we have had this opportunity to have this debate.
Earl Attlee
I am grateful for the partial support from the noble Lord. I have read the Army’s casualty procedure and looked at the advice to the commanding officer, and when I last looked at the document—I doubt it has changed that much—it said as little as possible. It certainly went nowhere near the detail that I propose. I am proposing that the next of kin would be able to talk about the circumstances with great knowledge, so that when someone suggested that something was wrong with the equipment, they would be able to say, “No, you have to understand that this was the difficulty”. Also, if perhaps the serviceman was the author of his own demise, they would understand why it was so easy to have an unfortunate outcome.
Lord West of Spithead
In the Navy, the rules are not quite so direct, but you are given guidance to be sure that you do not raise issues that would become extremely difficult. But I always felt that that gave you quite a lot of scope. As we know, rules are for the obedience of fools, and one was able to do quite a lot in those letters.
Lord Thomas of Gresford
I am grateful to the noble Lord, Lord Touhig, who drew my attention to a Scottish television report of September 2012, which says:
“Investigations into the deaths of Scottish military personnel killed abroad will be able to take place in Scotland for the first time from later this month. Up until now inquests into the deaths of servicemen and women have often had to be heard in England, forcing their bereaved families to travel long distances to take part in the hearings. But a change in the law means that from next Monday, September 24, the inquests will be able to be held north of the border”.
The mechanism is that the chief coroner, Peter Thornton, can,
“recommend to the Lord Advocate … that an investigation be transferred to Scotland”.
It arises out of 14 servicemen dying when their Nimrod crashed in Afghanistan; they were based in Moray, at RAF Kinloss, and the inquests were held in England.
Lord West of Spithead
We have gone down the route of the coronial system. As Plato said, only the dead see the end of war. Sadly, I am afraid that at some stage we will be in a war when we lose thousands of people, and I have no idea how the system will work at that stage or what the thought processes are about that.
Viscount Slim (CB)
Just to give noble Lords an example of an incident that might have involved an inquest and lessons learnt, in Korea, in an hour and a half, my battalion lost about—I am giving approximate figures as I do not remember them—probably nearly 30 dead and slightly more than 70 wounded. The reason was that during the battle, when we called for air support, we got some excellent American pilots, but they bombed us with napalm, instead of the enemy. We would call that “blue on blue” today, and you would have an investigation. Of course, it encouraged the enemy, who were the North Koreans at that time, to put in a counterattack, so we really had a very unpleasant time for a couple of hours. In those days, when we had a good number of soldiers, we had a reinforcement system, at the back of the Korean peninsula and in Japan, that sent you, within 24 hours, fully battle -trained soldiers to replace them—and we got about 100 or 110 good new soldiers.
Today, someone would want to have an inquest about why we were bombed. The chaps made a mistake, we had all those casualties—what use is an inquest? You have to get on with the battle. Lessons learnt—well yes, we can learn a lesson in 20 minutes about how to improve on what went wrong. In those early days of close air support, it was a lengthy process—not like today, when it is almost instantaneous. The military is the first to make amends for, and take decisions about, what went wrong and put that right. I do not see how a coroner with no military experience looking at that disaster would have helped at all. You must get on with the war.
The noble Earl was right to talk about what happens when a chap you have with you and who is your responsibility is killed. As the noble Lord, Lord West, said, you write to his mother, father, wife, daughter and whoever there is, and I am not sure that you write just a little—you write quite a lot. Those are the hardest letters to write of any kind. When everyone else is having a night’s sleep, you are up all night writing those letters—it is not just one. The commanding officer will write and so will his platoon or company commander. The wretched widow, mother or whoever gets two or three letters. On the whole, because you must explain how and why the son was killed, you write rather fully. You write in your own hand. When there are 30 of those letters to write, that is quite difficult. Do not tell me that the odd tear does not come down from the officer writing them.
Inquests play into the hands of the opposition nine times out of 10. On lessons learnt, nobody learns them quicker than the Army, Navy or Air Force.
Lord Touhig
My Lords, I will be brief. This debate is very important and shows that there has been a degree of overlap between inquests into the death of an individual and inquiries into perhaps wider problems that have arisen in conflict.
I spent 27 years working in newspapers and publishing before entering the House of Commons. I know only too well from my time as a young journalist covering inquests how important they were to a grieving family who had sometimes lost a loved one in the most tragic circumstances. With that experience of observing, I am not sure that inquests brought closure to a family coming to terms with a sudden and unexpected death but I have no doubt that they contributed to a sense of healing and understanding that the family was desperate for—an understanding of what happened and why some tragic death occurred to a son, daughter, husband or wife.
To no other group is that more important than to service families. A service family worries and frets as soon as its loved ones are sent on deployment somewhere in the world to defend Britain’s interests. We all agree that we have a duty of care to those who serve in our Armed Forces but we also have a duty of care to the families of those who serve. The noble Lord, Lord Thomas of Gresford, made clear that this is a probing amendment, really seeking to find out more about the present way in which these things operate. That is important and this is a step in the direction. It is fully supported on this side.
Earl Howe
My Lords, I found this an extremely interesting debate and I thank the noble Lord, Lord Thomas, for his proposal and his interest in ensuring that the death of a service person such as described in his amendment, where that tragically occurs, is reported to a coroner quickly for thorough investigation.
I listened with care to the views expressed by my noble friend Lord Attlee and the noble Viscount, Lord Slim, putting the opposite case. Our view is that reporting a death to a coroner is no more than the families of those killed in these circumstances deserve. The first thing I would like to do is reassure the noble Lord that the Ministry of Defence works hard to support coroners in all investigations connected to the Armed Forces. I am very happy to outline the current system, and I hope that I can reassure the noble Lord that that system is working well.
As I am sure the noble Lord will be aware, in the United Kingdom, where the death of anyone—whether subject to service law or not—is believed to have occurred by violent or unnatural means, there are already requirements in relevant legislations in England and Wales, Scotland and Northern Ireland for those deaths to be reported to the coroner or equivalent without delay. Naturally, the Ministry of Defence complies fully in the case of Armed Forces deaths, wherever and however these occur.
In England and Wales and in Northern Ireland, where the coroner believes a death to have occurred as a result of violent or unnatural means, the relevant legislation requires him or her to conduct an inquest. In Scotland, the procedure is called a fatal accident inquiry. I should just make clear that an inquest is an independent judicial inquiry conducted in England and Wales by a coroner into the facts surrounding a death that is sudden, unexpected or unnatural. Her Majesty’s coroners have a vital task giving certainty and reassurance to the bereaved and meeting the public interest by determining the facts of death where the circumstances were violent, unnatural or unknown. The Ministry of Defence will provide as much support as the coroner needs, and the Defence Inquest Unit has an important role in offering that support.
In recent years, a number of measures have been introduced to improve the inquest process for bereaved families of service personnel. These have included, in particular, measures to tackle delays in cases coming to inquest, including completion of inquests within six months wherever possible and flexibility to transfer investigations to another coroner. With regard to deaths of those serving overseas, there is a similar requirement, under existing legislation, for the authorities to notify the coroner. Once the deceased has been repatriated to England and Wales, the coronial process runs the same way as a death that occurred here.
The noble and learned Lord, Lord Hope, helpfully reminded us of the arrangements that applied in Scotland. The noble Lord, Lord Thomas, will, I am sure, be aware that until recently, not all service deaths in Scotland would have been subject to a fatal accident inquiry by the Crown Office and Procurator Fiscal Service. However, with effect from 14 January 2016, the introduction in Scotland of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 ensures that all unnatural or violent deaths that occur as a result of a person’s duties will be subject to a fatal accident inquiry.
Concerning the scope of a coroner’s inquest, this is determined by the individual coroner on the basis of the evidence available to him or her. Where a coroner considers that the deceased’s right to life was not protected by the state, then the coroner is required to widen the scope of the inquest—or fatal accident inquiry in Scotland—to investigate the broader circumstances of the death. The Ministry of Defence will do everything possible to support the coroner, whatever the scope decided upon.
I hope that I have explained that the legal framework that the noble Lord’s amendment is aimed at achieving is already in place. I listened with care to my noble friend Lord Attlee’s concerns and those of the noble Viscount, Lord Slim, about the utility of inquests into the deaths of those subject to service law. I hope that they will allow me to reflect on what they said and to write to them with my considered observations. I will, of course, copy my letter to all noble Lords who have taken part in this debate. With those remarks, I hope the noble Lord, Lord Thomas, will agree to withdraw his amendment at this stage. Of course, if I can supply him with any further information on this subject, I would be glad to do so.
Earl Attlee
My Lords, I am grateful for the Minister’s response to my amendment. I have a wicked question to ask him, following the point made by the noble Lord, Lord West, about what happens if we start taking large numbers of casualties, especially if the circumstances of each casualty are different. Suppose in 100 days of an operation we take 10 fatalities per day. We are in for 1,000 inquests, and the circumstances of each one are different. Presumably at some point as a conflict escalated from peacekeeping to warfighting and, to put it bluntly, it was not going very well, we would have to suspend the system of inquests. It would be ridiculous—God forbid we could have 5,000 outstanding inquests! We would get to a point where we would have to stop the inquest system. That proves my perverse law that the scrutiny of each casualty is inversely proportionate to the number of casualties we take.
Earl Howe
My noble friend is right that that is a question from left field because I do not think I can answer him substantively today. Clearly, in the circumstances that he outlines the coronial system would be overwhelmed and one would have to consider the best way of arriving at the end point that we would all wish to see, which is that for all those deaths, no matter how many, an explanation is provided to families of how those people died and what lessons were to be learned from that. I do not think I can usefully speculate in these surroundings about what might happen in particular circumstances, but I will reflect on my noble friend’s question, and if I can give him a better reply in the letter that I have undertaken to send to him, I will be happy to do so.
Earl Attlee
I do not really expect the Minister to give me a precise figure, but I am very grateful to him for saying that he will reflect on what I have suggested. I do not expect him to get particularly far, but I am grateful for his attitude to my speech.
Lord Thomas of Gresford
My Lords, those of us who were around in 2009 will recall the great controversy in the Coroners and Justice Bill about whether we should have a chief coroner. Eventually the argument prevailed that we should have a chief coroner. We have a highly competent, able and experienced person in the shape of Peter Thornton. I am sure he will deal with many problems unless and until the system is overwhelmed, as the noble Earl suggested. I am very reassured, and I am grateful to the Minister for his careful response which brings me up to date on where we stand with the inquest system. I will reflect on what he said to see whether there is any necessity for me to take this issue further. I beg leave to withdraw the amendment.
Earl Attlee
“Guidance on definition of “on duty” for reservists
The Defence Council shall promulgate an instruction or notice giving clear guidance as to when a reservist is on duty and when he or she is not, and any such guidance must cover, but need not be limited to—(a) all hours of a day when it is intended that the reservist is to be paid,(b) the period after dismissal parade but when the reservist is still on Ministry of Defence premises.”
Earl Attlee
My Lords, I shall speak also to Amendments 19 and 20. This group of amendments explores when a reservist and, in some cases, a regular is or is not on duty, is subject to military law and can be expected to be supported by the MoD. When the Minister has replied, I hope the Committee will have a much clearer understanding of the position.
For most of my active years in the TA—now the Army Reserve—my understanding, and certainly my ethos, was that I was subject to service discipline for the full 24-hour period for which I was to be paid. This applied to both my commissioned and my non-commissioned service. On a Saturday morning, I might be in bed until 0600 hours; I might not be on parade until 0800 hours; work on military activities might finish at 1800 hours; and we might be engaged in social activities, on or off defence premises, at 2200 hours. I am absolutely certain that our ethos was that we were subject to service law all the time and that the chain of command was effective. This state of affairs did not seem to deter anyone from joining the TA, even if they were aware, nor did it encourage anyone to leave. Indeed, a reserve unit is a safe place precisely because there is an effective chain of command, with someone in charge all the time.
Nowadays there seems to be some doubt or uncertainty. Now it is being suggested that reservists are not subject to service law after dismissal parade, even though they are still on defence premises. It seems most odd that one would want to collapse the system of command, control, good order and military discipline at some artificial and very uncertain point in the day, which may also have to be moved back at a later point for some good reason.
There is also uncertainty for reservists when travelling to and from their place of duty. It now appears that they are not under service law at that point, but what happens if some reservists are acting in a way that would tend to bring their service into disrepute, but not so badly as to interest the civil police? If an officer, senior NCO or service policeman chanced upon the incident, they could not take any action because the reservist would not be under service law. In this case of any insubordination to a regular or reserve officer, nothing could be done. One of my amendments calls for a defence instruction and notice—a DIN—on the issue, but the Minister can start by explaining the situation to the Committee and telling us exactly when a reservist is or is not on duty. I am sure that is his intention.
My other amendments deal with the related issue about duty, which is about self-tasking in a range of emergencies. The first point for the Committee to understand is that ordinary service personnel never have the powers of a police constable or a firefighter. There is no need and that is not the role of the Armed Forces, but I and a very large proportion of the Armed Forces, both regular and reserve, are hard-wired to intervene in any form of emergency. The most obvious example is any form of transport accident. We would not fail to prevent an emergency situation deteriorating until the emergency services arrive, and we would do all we can to preserve life and limb, and to promote recovery. However, we are trained to assess risk and not become casualties ourselves. Officers and senior NCOs can exercise a fair amount of command and control just through leadership and personality. More junior personnel will find that they can often be far more effective and willing if they are in uniform.
None of this will be a surprise to the Committee, but what happens if there is not a happy outcome arising from the resolute actions of the serviceperson, whether he is a reservist off duty or a regular serviceperson off duty? I will not weary the Committee with a scenario, but perhaps there is some legal issue despite the serviceperson being compliant with the terms of my amendment. My understanding is that if the serviceperson is not on duty, they are on their own. Of course, various press offices in the MoD will lap up any easy and good news stories, so can my noble friend the Minister confirm to the Committee that, in a civil emergency, a self-tasking, off-duty serviceperson is on his own and there will be no “big firm” back-up from the MoD?
My next amendment is closely related to being on duty. The Committee will recall the failed terrorist attack on a train in France near Arras last summer. The attacker was heavily armed with automatic weapons, but there were no fatalities thanks to the very courageous actions of two off-duty US servicemen who disarmed him. It is important to understand that they could have been killed. They did what we expected them to; they certainly did not wait for any orders or rules of engagement. This type of attack is not a hostage situation, where the tactics would be to drag out the situation and try to make friends with the hostage-taker if at all possible. In this case, it is necessary to destroy or defeat the attacker in the shortest possible time to minimise the overall number of civilian casualties. Such an incident is likely to be particularly messy. The amendment is designed to ensure that a serviceperson who is self-tasked in such a situation is on duty, and in the aftermath will be supported by the MoD and HMG in the same way as if they were on a conventional operation.
It would also ensure that he or she knows that the law recognises in this particular situation that there may be collateral damage. I am not suggesting that the proportionality test of the law of armed conflict can be ignored; it certainly cannot.
The counter to my amendment is that it is not necessary because the law already allows for it. That may be the case but why should a serviceperson who has acted courageously and skilfully be put through all the worry? If the worst happens and they are killed, will the pension arrangements and death-in-service benefits be any different from if they were on duty in the normal way? In such a situation, would it not be better for the serviceperson, self-tasking in such a matter, to be considering military matters, such as estimating the number of rounds fired by the attacker rather than worrying about his or her legal position? I beg to move.
Lord Tunnicliffe
My Lords, on Amendment 18, which seeks clarity, we have nothing to add and look forward to the Minister’s response.
Amendments 19 and 20 seem to want to create an individual who is, in terms of rights and indemnities, somewhere between a citizen and a constable, or perhaps a firefighter. That would be a significant new piece of law. It would have to be accompanied by a significant portfolio of training in the management of risk to self and collateral damage. It seems to me that we would end up with the implication that the MoD had some sort of duty of care to make sure that the individual was equipped to behave in some way differently from a citizen, and we would end up in some area of certification whereby individuals would have to be seen to be competent not only in their straightforward military duties but in this self-tasking. There could be almost a proliferation of miniature armies among the citizenry.
I find it difficult to believe—I may be persuaded otherwise—that the complexities and costs of such a concept would justify the benefits. If the Government were to come forward with such a proposal, that would be a different matter. I would expect to see a body of research that looked into the various scenarios in which it might apply. I would expect that research to include an analysis of unintended consequences and how the appropriate ancillary rules would support those consequences, and I would expect extensive consultation. If such a concept were to come forward from the Government, accompanied by that level of analysis and consultation, of course we would have an open mind and treat it on its merits. Introducing such a powerful, new legal concept through an amendment to the Bill is not something we feel we can support.
Earl Howe
My Lords, I am grateful to my noble friend for setting out the rationale for his Amendment 18. However—without, I hope, disappointing him too much—I am not convinced it is necessary to set out in the Armed Forces Bill a statutory requirement for the Defence Council to issue guidance on when a member of the Reserve Forces is on or off duty.
We ask a great deal of our reservists, who, in many cases, attend training and fulfil military duties alongside their full-time civilian employment, as well as committing to deploy on operations when they are required to do so. It is self-evident that in return for this dedication, the MoD needs to make it clear how members of the Reserve Forces will be treated and supported when they are on mobilised service or training, or travelling to and from their reserve centre. Principally, we set this out because reserve service is not risk-free and we need to be able to give reassurance that we will support people properly if they suffer an injury or illness during service.
When is a service man or woman subject to service law? Section 367 of the Armed Forces Act 2006 sets this out:
“Every member of the regular forces is subject to service law at all times”.
The position for reservists is different. Reservists are subject to service law in the following circumstances only: when they are mobilised—called out; when they are in full-time reserve service; when they are undertaking any training or duty; and when they are serving on the permanent staff of a reserve force.
Single service regulations, which are made under the Reserve Forces Act 1996 for each of the reserve forces, already define the circumstances in which a reservist is to be regarded as on duty. As might be expected, this includes during Armed Forces training but it also includes time while they are on MoD premises for the purpose of training, or time spent travelling to and from training or duty for which they are entitled to claim payment. Travel to a mobilisation centre in answer to a call-out order is also regarded as duty. The regulations are principally intended to define the MoD’s liabilities in the event that a reservist sustains an injury at any of these times.
Of course, the actions of a reservist at a time when they are not on duty may none the less be relevant to their service; for example, reserves regulations stipulate that officers may at any time have their commission terminated, be called upon to retire, or be called upon to resign their commission because of misconduct, whether or not that misconduct took place during training or other duties. It is also fully understood by reservists who are present on service premises at times when they are not on duty—for example, those making use of unit gymnasium facilities in their own spare time—that they are to conduct themselves at such times in the same manner as they would were they on duty.
It is worth clarifying that the practice of payment of members of the Reserve Forces for training or other duties in increments of a day’s pay, half a day’s pay or a quarter of a day’s pay is not directly linked to the issue of when during that day the reservist is on duty. Thus a reservist who works an eight-hour day will receive a full day’s pay for it—the same payment as he or she would receive for working for all 24 of the hours in that day. However, that does not mean that the reservist who works an eight-hour day is on duty for all 24 of the hours in that day. It might be considered odd to suggest that they would be. It would be surprising to suggest that a reservist who left their reserve unit at 1600 on a Saturday after completing an eight-hour day and returned to their civilian life—and perhaps their civilian employment—would still be on duty until midnight.
For the reasons I have set out, and given that existing regulations already contain provision for when members of the Reserve Forces are on duty, I hope my noble friend will be reassured and will agree to withdraw his amendment.
I turn now to the amendments which would make provision with respect to members of the Armed Forces who encounter civil emergencies or terrorist attacks. Amendment 19 makes provision with respect to members of the Armed Forces who take it upon themselves as individuals to intervene to help in civil emergencies where they have received no orders to do so. I am sure this is intended to encourage them to intervene in such circumstances. In the case of members of the Reserve Forces, this would include interventions when they were not otherwise on duty. However, it would apply only to reservists who were in uniform and were either on duty, were intending to be on duty that day or had been on duty that day.
I read subsection (3) as intending to allow provision to be made to place service personnel under an obligation to intervene in certain circumstances. Subsection (4) would offer those who intervene indemnities from legal action. Amendment 20 makes similar provision with respect to intervention of members of the Armed Forces during terrorist attacks. This new clause would apply to reservists and members of the regular forces whether or not they were in uniform at the time.
The first point to make is that the criminal law provides protections for members of the public who use force for the purposes of self-defence, defence of another, defence of property, prevention of crime and lawful arrest, although the force used must be reasonable in the circumstances. Thus a member of the Armed Forces, whether in uniform or on duty or not, who intervenes during a civil emergency or a terrorist attack and uses reasonable force for any of the purposes to which I have just referred has a defence to charges under the criminal law.
However, Amendments 19 and 20 suggest that my noble friend is concerned that a person who intervenes in an emergency situation to prevent loss of life, serious injury or serious damage to property may be at risk of being sued in the civil courts. We think it highly unlikely that a person who did what they honestly believed was reasonable and necessary in the circumstances, during a civil emergency or a terrorist attack, to prevent loss of life, serious injury or serious damage to property could be successfully sued in respect of injury or damage caused by them in doing so.
It is not immediately apparent why an off-duty member of the Armed Forces who decides to intervene to help in a civil emergency or a terrorist attack should be in any different position in law from any member of the public who does so. No doubt contrary to my noble friend’s intention, the amendment might in fact make a claim in respect of the actions of a member of the Armed Forces more likely, because those actions would not simply be those of a member of the public in their private capacity but would instead be those of the Armed Forces.
Another concern that I have with these new clauses is whether, if a member of the Armed Forces intervened in a situation and was then deemed to be on duty and perhaps somehow under orders, there could be a risk that they could find themselves not supported but actually challenged by the chain of command as to the usefulness or otherwise of their intervention. While we would not want to deter off-duty members of the Armed Forces from intervening in a personal capacity in an emergency situation, we do not think that it would be appropriate for them to be duty-bound to intervene or to think that they were. Would we want an unarmed, off-duty member of the Armed Forces to think that they were duty-bound to tackle heavily armed terrorists and that they might face disciplinary action should they fail to do so?
We should also not rule out the possibility that their efforts, however well-intentioned, may not necessarily be welcomed by the police or other emergency services. It is long-established that it is only in very exceptional circumstances that members of the Armed Forces should deploy in an official capacity on the streets of the United Kingdom. The civilian emergency services rightly have primacy in such matters.
The notion that individual service personnel may deploy as members of the Armed Forces on official duty not under orders but instead, in effect, on their own say-so would also represent a very significant departure from very long-established practice, under which the use of service personnel is authorised and regulated under orders through a chain of command. I am afraid that it is a departure that the Government cannot support.
I also note that Amendment 20 would purport to allow members of the Armed Forces to use,
“all necessary steps to neutralise”,
an attack. The criminal law allows only the use of such force as is reasonable in the circumstances. This is the standard that applies not only to members of the public generally but also to the police and members of the Armed Forces who are under official orders to tackle armed terrorists. We do not see any basis for departing from this long-established standard.
In short, we do not consider that the proposed amendments are necessary to allow members of the Armed Forces to intervene in the circumstances discussed and we are not convinced that it would be appropriate to put in place the proposed legal rules regarding such intervention. I therefore ask my noble friend not to press his amendments.
Earl Attlee
My Lords, I am grateful to all noble Lords who contributed. The Minister gave me exactly the answer I would expect. The first part of his answer was particularly useful so I am grateful to him for that. I am a little surprised by the response of the noble Lord, Lord Tunnicliffe, because nowhere was I suggesting that there would be any special training. It was basically whether off-duty servicemen should have any top cover from the MoD. I do not see that there would be any extra costs in that. It certainly would not be a new task or mission for the MoD. I am still very grateful for the noble Lord’s response and beg leave to withdraw the amendment.
Earl Attlee
“Career employment group
(1) Subject to subsections (2) and (3), no female member of the armed forces shall be allocated a “career employment group” whose primary role is to close with and then engage or destroy the enemy in close combat.(2) In this section, “career employment group” means any alpha-numeric reference number to identify a trade and used for personnel management.(3) Subsection (1) does not apply to a female member of the Armed Forces who has been specially selected on the basis of being extraordinarily fit and having exceptional mental and other capacities.”
Earl Attlee
My Lords, this is a short probing amendment to explore where the Government are on the issue of allowing women to serve on the front line. I do not intend to return to it at a later stage.
There is a wide variety of important roles for women in our Armed Forces and they make a significant contribution. In many cases, they stand in harm’s way and take the same risks as their male counterparts. Furthermore, they can increase operational effectiveness. My only concern is that perhaps the range of roles was increased merely to plug a recruiting gap that should have been dealt with by improving pay, terms and conditions of service, and accommodation. There are many roles in which women can perform better than men, including traditional male roles. However, they are excluded from roles that are primarily to close with the enemy and kill him.
The intention of my amendment is broadly to allow women to serve in the Royal Armoured Corps but not infantry regiments, but I accept that it may not actually achieve that. Subsection (3) is merely an exemption, a get-out provision, to allow posting and recruitment for very special roles including but not limited to Special Forces. I do not see any need for the Committee to debate this provision as it is merely to avoid any undesirable effects of the amendment.
My concern is that the roles that I seek to exclude require a very high level of strength as a prerequisite. My first question for the Minister is: what proportion of females does he think can meet the current fitness and strength requirements for the infantry? I ask because very few women are as strong as the average male soldier. Secondly, do the Government have a target for the percentage of our Armed Forces that should be female? I would be very interested to hear the views of the Committee on this issue. I beg to move.
Baroness Jolly
My Lords, I am sure the noble Earl, Lord Howe, will correct me if I have this wrong when he sums up but I understand that a Statement on this issue is expected in the near future, and that both the PM and the Secretary of State expect to lift this ban within a year.
Perhaps the noble Earl, Lord Attlee, could help me. I want to make sure that I understand what his amendment is trying to do, taking the three subsections together and weaving them into an argument. I understand the noble Earl to be saying that a female member of the Armed Forces can engage or destroy the enemy in close combat only if they are specially selected for being extraordinarily fit and having exceptional mental and other capacities. Is that right?
Earl Attlee
My Lords, I did touch on subsection (3), the purpose of which is to ensure that we do not prohibit females from being posted to Special Forces units. Perhaps that would not be suitable for the SAS or SBS but perhaps other roles could be caught by my amendment as drafted. It is merely to make sure that the Minister does not criticise me for causing unnecessary problems. I suggest to the Committee that females can serve in the Royal Armoured Corps, operating an armoured fighting vehicle, but they should not be able to be in the infantry, sticking the bayonet into the enemy.
Baroness Jolly
I thank the noble Earl for that clarification. I rather suspected that that was what he was going to say. I was wondering about the words “extraordinarily fit” and,
“exceptional mental and other capacities”.
I wondered how these would be determined, defined and measured. The noble Earl has helped me out to a certain extent there.
We know that women already serve as medics, intelligence officers, fighter pilots and submariners. They have been awarded medals for their bravery in battlefield situations. Should these criteria not be applied to anybody, men or women? They sound gender-neutral. I see what the noble Earl is trying to achieve but I am not sure he has achieved it. It seems that it could apply to either men or women. Whatever happens, whoever we send into battle, we need the people engaging for us to do so based on their abilities, not their gender.
Earl Attlee
My Lords, my worry is that, if the Government decide that, yes, we can have females serve in the infantry, the fitness and strength standards for a combat infantryman would have to be lowered. That would mean that we lower the capability of the infantry—they would not be as fit and strong—in order to have a unisex standard.
Baroness Jolly
I understand what the noble Earl is trying to get at. Conversations I have had about this suggest that the number of women who are likely to fit the category will be very small indeed. I am sure that they will ensure that they have all the other characteristics that the noble Earl suggests they should have in order to engage.
Lord West of Spithead
My Lords, we know very well that women can be amazingly brave. We have always been willing in wars to let them die. Indeed, when I did my study into the employment of women at sea, it was quite clear that they could do all the jobs in ships at sea. Indeed, quite often they were better at some jobs than young men, particularly some of the computer work that was being done. However, there is a concern when it comes to hand-to-hand fighting and the like. With a volunteer force, we will have to allow women to become part of the infantry and the Royal Marines. What we must not do is lower the physical standards. There must be no lowering of them, so it will be a small number of women who can do that. Certainly, my judgment of women is that a lot of them are probably far better at killing people than men are, so I do not think that that is a problem, either.
However, I have a concern. One speaks in generalisations about training and other things. As I said, we must not lower that standard. When we talk in generalisations, women have 30% less upper body strength than men. That is across the whole population. Yes, in this volunteer service we will get away with this, but we must not let it affect operational capability or cause us too much of a problem administratively because too few women will be able to do it and therefore one makes special rules and it becomes administratively very difficult. Again, it comes to this business where, one day, we will have a war again, I fear—no one can predict it—and in the case of a general war, would we in this country conscript women as well as men into the infantry? That is an interesting question. That is all I have to say on this subject.
Lord Touhig
My Lords, more than 20 years ago, as a parliamentary candidate in Richmond in west London, I addressed a Labour Party women’s group, telling them that as a country we wasted a small fortune on educating girls and women at all. Before they could leap from their seats and warmly shake me by the throat, I went on to say that as a man, I had a family and a career but all too often women were denied this and had to make a choice of having one or the other. We spend a fortune on their education and then put barriers in their way to having a career and a family. For me, that is plain wrong.
Thankfully, as time has passed, more and more opportunities exist for women to enjoy the same lifestyles as men and to have a family and a career, but we are still far from achieving true equality. Where we can take steps to achieve this, we should do so. I therefore welcome the Government’s initial commitment to allowing women to serve in front-line roles in the Armed Forces. This amendment would prevent that and would deny a fit, well-trained, skilled and experienced woman combatant the same career progression as her male counterpart. This will always be a controversial and complex matter, as my noble friend Lord West pointed out, but if we are serious about the equality agenda we cannot deny women the same role that we offer men.
Throughout history womankind has played an exceptional and extraordinary role in our development, almost always against the odds and facing prejudice. Some would argue that in affording women this opportunity we are setting a precedent. Yes, we are—about time, too. I have no doubt that the first human who stood up straight and started walking on two legs was watched by those still on all fours, who tut-tutted and complained that this was setting a precedent. They were proved wrong, and I very much regret to say to the noble Earl, Lord Attlee, for whom I have the highest regard and respect, that I believe that his amendment is wrong, too. On Monday in the House we will debate a Motion to take note of the progress made in the United Kingdom in women’s representation and empowerment, 150 years after the 1866 petition to the House of Commons for women’s suffrage. It is about time we caught up—especially in the Armed Forces.
Earl Howe
My Lords, the amendment proposed by my noble friend would have the effect of excluding women from those roles in the Armed Forces, where the primary aim is to,
“close with and then engage or destroy the enemy in close combat”.
As I know my noble friend agrees, women play a vital role in the Armed Forces, with 70% of all posts being open to women. Women have made and continue to make a valuable contribution to current and recent operations, including Afghanistan. They are fundamental to the operational effectiveness of the UK’s Armed Forces, bringing talent and skills across the board.
My noble friend asked whether there was a target for the percentage of the Armed Forces who should be female. The answer is: yes, the Ministry of Defence has a target for recruitment of women into the Armed Forces of 15%. As at 1 October 2015, 10.1% of the Regular Forces were female, and that has remained stable since 1 October 2014. So we have a way to go in this area.
Women already serve in a variety of support roles with front-line units, including as medics, fire support team commanders, military intelligence operators, counter-improvised explosive device operators and dog handlers. Under the Equality Act 2010, the Armed Forces are permitted to exclude women and transsexuals from employment in some areas where it is necessary and appropriate to ensure that the combat effectiveness of the Armed Forces is maintained. However, under the equal treatment directive, the UK Government are obliged to review this exclusion every eight years. To that end, studies were conducted in 2002 and 2010. Women are currently excluded from 30% of posts in the Army, 21% in the Royal Navy and 6% in the Royal Air Force. The units of the Armed Forces that are affected by this are the Royal Marines general service of the Royal Navy, the infantry and the Royal Armoured Corps of the Army, and the Royal Air Force Regiment.
In May 2014, the then Secretary of State for Defence announced a review of the exclusion of women from ground close combat roles. The review was led by the Army and it was completed that year. The review achieved a considerably better understanding of the physiological considerations than existed previously, due to significant improvements in the accuracy of data available and the fact that the military female cohort is both larger and more representative than that available to previous studies.
While defence welcomes the prospect of opening further military roles to women, the findings of the 2014 review identified that further physiological research is required into the high physical demands inherent in ground close combat roles and the associated potential impact on women’s health. To lift the exclusion without doing this research could place women at risk of personal injury. The physiological research programme is now examining the challenges and risks of including women in ground close combat roles in order to inform a final decision.
I need to make it clear to my noble friend that the women in ground close combat roles review follows the principle that all roles should be open to women unless it can be demonstrated that the exclusion was necessary to maintain combat effectiveness. Therefore, in the event that the exclusion is lifted, any woman serving in a combat role will have passed the physical tests and training to be there in her own right. I can reassure my noble friend on one important point. The requirement to maintain combat effectiveness remains the paramount consideration. Training standards will not be lowered in order to accommodate women and this, in turn, will ensure that the combat effectiveness of ground close combat units is maintained.
The Prime Minister and the Defence Secretary are united in wanting to see all roles in the Armed Forces opened up to women. In answer to the noble Baroness, Lady Jolly, I cannot be precise on dates, but the decision on whether or not women should be allowed to serve in ground close combat roles is expected by the middle of this year. I hope that this explains our position and, in view of what I have said, I hope that my noble friend will agree to withdraw this amendment.
Earl Attlee
My Lords, I am grateful to all noble Lords who have contributed to the debate. I am not surprised that the noble Lord, Lord Touhig, had a go at me. I went part of the way: I said that we could have women in the Royal Armoured Corps because there is no logic for why a woman should not be able to operate a tank or an armoured fighting vehicle. In fact, there is a possibility that women may be better in certain roles.
The noble Lord, Lord West, was very cruel to me because he took away one of my killer questions to the Minister, which is: if we were in general war and had to conscript people, would we be happy to conscript women into the infantry? I do not think the Minister needs to answer that because it is far too tough a question.
I would like an assurance from the Minister that he will not authorise the fitness and strength standards in the infantry to be lowered. Can we have an assurance that that will not happen? If there are one or two superhuman women who can do it, fine. But as soon as we lower those training and fitness standards, we will have reduced the combat effectiveness of the infantry.
Earl Attlee
My Lords, my position is that the solution outlined in my amendment is the right one. In other words, yes to women in the Royal Armoured Corps but no to the infantry and the Royal Marines. We will have to see what happens. In the mean time, I beg leave to withdraw my amendment.
Lord West of Spithead
“Compensation for veterans with mesothelioma
(1) The Secretary of State must, within two months of the passing of this Act, put in place an armed and reserve forces compensation scheme, through which a person who has served in the armed or reserved forces can claim a lump sum of at least £140,000 in respect of a diffuse mesothelioma diagnosis.(2) The scheme must provide that all persons who have worked in the armed forces and have been diagnosed with diffuse mesothelioma as a result of that employment are eligible to claim the lump sum specified in subsection (1) irrespective of —(a) the date on which they were diagnosed; and(b) whether they are in receipt of a war pension under a separate scheme.(3) In this section, “armed and reserve forces compensation scheme” has the same meaning as in section 1 of the Armed Forces (Pensions and Compensation) Act 2004 (pension and compensation schemes: armed and reserve forces).”
Lord West of Spithead
My Lords, mesothelioma is a most dreadful disease, as we all know—and very difficult to pronounce, if I may say. It is bad enough for a veteran to have it, let alone having to suffer the unfairness of limited compensation compared to his civilian counterpart. What of the armed services covenant?
A campaign has been run by many, not least by my fellow Labour colleagues and the noble Lord, Lord Alton, who I see is sitting in his place. It seems now to have borne fruit: parity of payment for all veteran sufferers now seems to have been agreed. Perhaps the Minister could confirm that this is the case, as no Statement has been made to this effect in the House. The proposals set out in the amendment in the name of the noble Lord, Lord Empey, make sense unless these things are being done by some other means, and I am not sure whether they are.
My last few words relate to the need for much more research into this killer disease and much more emphasis on that. More needs to be done, but, crucially, there needs to be a co-ordination of the results of research, particularly between the four big teaching hospitals that are working in this arena. I am led to understand that some sort of central analysis unit, funded by LIBOR money, is being set up to do this work. Will the noble Earl let me know if this is the case?
Earl Howe
My Lords, without wishing to preclude further debate on this amendment, it may be for the benefit of the Committee if I confirm the announcement made by my ministerial colleague in another place on 29 February. This was that the option of receiving a lump sum of £140,000 will be extended to veterans in receipt of a war pension for diffuse mesothelioma who were diagnosed before 16 December 2015 and also to those who have yet to have a claim accepted. We listened to the views of parliamentarians and ex-service organisations, particularly the Royal British Legion, which commented that the Government had “done the right thing” in announcing these changes to the compensation pay-out.
Lord Alton of Liverpool (CB)
My Lords, I support the amendment moved by the noble Lord today in Committee. I apologise to the Committee, as, although I attended some of the Second Reading debate, duties elsewhere in the House prevented me from being able to be present for the Minister’s reply. I therefore did not speak at that stage and I crave the indulgence of the Committee in speaking today.
Noble Lords might know that I currently have before the House a Private Member’s Bill which has received a Second Reading. It enjoyed all-party support and would provide funding for research—to which the noble and gallant Lord just referred—into the causes of mesothelioma, a disease which the Government themselves predict will take a further 60,000 British lives. We have the highest incidence of mesothelioma anywhere in the world. No effective treatment exists; there is no cure and once diagnosed, the average patient dies within a few months.
On introducing that Bill, and in relation to our Armed Forces, I said that,
“the failure of the 2014 Act to include provision for compensation for our servicemen who die of mesothelioma is a glaring anomaly. The British Legion, the Royal Navy & Royal Marines Charity, the Royal Navy Royal Marines Widows’ Association, the Royal Naval Association and others all support calls for change”.—[Official Report, 20/11/15; col. 385.]
I contrasted at the time the position of a 63 year-old civilian, who might expect to receive around £180,000 in compensation, compared with a veteran’s entitlement to a year’s worth of war pension which, paid at the maximum rate for a non-married naval veteran, amounts to just £31,000. I argued then that veterans should be offered compensation at least equal to that which the courts and the Government have decided that civilians deserve. The unequal treatment of our servicemen and servicewomen amounts to a serious breach of the Armed Forces covenant, which is supposed to ensure that veterans are not disadvantaged because of their service.
I am particularly grateful, therefore, that the department has recognised that this is an anomaly that needs to be rectified, and I strongly welcome what the noble Earl, Lord Howe, said to the Committee a few moments ago. Of course, this echoes what his honourable friend in another place, the Parliamentary Undersecretary, recently told the House of Commons. He will also know that there was not just that anomaly: there was an anomaly within the anomaly in that a very small group of people—some 60—had been excluded from the scheme because of the way in which the timeline in the announcement fell. It is particularly good that the noble Earl has been able to say today that that will be removed—that the effect of the amendment that the noble Lord, Lord West, has put before the Committee will be realised.
The noble Earl will also know, especially given his previous duties at the Department of Health, that this is a disease that does not have a cure and needs much more basic research. He will also know that until the mid-1960s, blue asbestos—crocidolite—was widely used in the insulation of Royal Navy vessels. In consequence, many Royal Navy personnel have died of mesothelioma, particularly those working in boiler rooms and in engineering trades but also those on board ships during refits.
Professor Julian Peto, in an analysis for the Royal British Legion, estimates that a further 2,500 Royal Navy personnel will die of mesothelioma between now and 2047. On 8 December 2015 I asked the noble Earl in a Parliamentary Question how the Government intend,
“to assist members of the armed forces who are diagnosed with mesothelioma in the future; and what assessment they have made of whether those individuals should receive financial support at least equivalent to that of civilians diagnosed with the disease”.
The noble Earl replied that this was “a complex matter” and that:
“The Department commissioned advice from the Independent Medical Expert Group to look at mesothelioma and the awards paid through the WPS”.
The noble Earl promised an announcement and we have now received that.
However, if I may say so, there were also written into this and other Questions tabled at the time questions about the levels of research and indeed the data collection by the Government. I refer particularly to the comments of Commodore Rhod Palmer, who is a third-generation Royal Navy sailor diagnosed with mesothelioma in April 2015. Incidentally, he is one of those who would have been excluded from the new compensation scheme—the anomaly within the anomaly. He said:
“No amount of money will ever compensate sufferers and their families for a preventable death. However, it is a real breakthrough that the Government will treat all current and future sufferers of mesothelioma exposed to asbestos during their Service under comparable terms as civilians. This payment allows patients with mesothelioma to make arrangements to maximise their quality of life during this terminal illness and to support the family that they leave behind”.
He went on to say:
“Looking to the future, I strongly encourage further funding of research into advancing the treatment of this devastating condition”.
The noble Earl will recall that when he was at the Department of Health I moved an amendment to the Mesothelioma Act to provide financial support from the levy on the insurance industry, which was defeated by a handful of votes. At the time four insurance companies were voluntarily supporting research and the noble Earl believed that many of the other 120 insurance companies covered by the levy would voluntarily join the other four in supporting research into this killer disease. Sadly, I have to inform the noble Earl and the Committee that the opposite has happened, with only two companies now voluntarily supporting research. In supporting this amendment and welcoming this week’s announcement, I ask the noble Earl to study the correspondence that I have sent him today, which includes a letter sent on 18 February to Mr George Osborne, the Chancellor, by Professor Sir Anthony Newman Taylor CBE of Imperial College, urging him to release LIBOR funds—referred to by the noble Lord, Lord West—to help fund a national mesothelioma research centre, which Imperial wishes to create with the National Heart and Lung Institute, the Royal Brompton Hospital, the Institute of Cancer Research and the Royal Marsden Hospital. Incidentally, in that letter Sir Anthony says that the current rate of death is around 3,000 a year. He says:
“There is an urgent need to find curative treatment for this awful disease”.
He says that modern genetics hold great promise but that,
“sadly, to date, mesothelioma has not been the focus to achieve this at any research centre in the UK, or, as far as I am aware, at any centre worldwide”.
The Committee will recall the decision of the Chancellor to transfer some £35 million from the fines levied on the banks for attempting to manipulate the LIBOR interest rate. That money was transferred to the MoD for use in supporting the Armed Forces community. The proposal from Imperial College would be an imaginative use of some of those funds to help to find cures for a disease which has claimed too many lives among members of our Armed Forces. Following our debate today, therefore, I would be grateful if the noble Earl would write to me with a considered response to Sir Anthony’s initiative.
I shall conclude with a word about data collection within the Armed Forces. In February 2014, I asked the Government,
“how many of the annual fatalities caused by mesothelioma involve former members of the armed forces; what data are kept on the cause of death of former servicemen; and what research they plan to commission into the incidence of mesothelioma amongst former servicemen”.
The then Parliamentary Under-Secretary, the noble Lord, Lord Astor of Hever, replied:
“Data on the number of annual fatalities caused by mesothelioma does not identify those who were former members of the Armed Forces … The MOD has no plans to commission research into the incidence of mesothelioma amongst former Service Personnel”.—[Official Report, 11/2/14; col. WA 125-6.]
It is the duty of the department to do that, and it should have such plans. I encourage the noble Earl to revisit this issue. This should not be a case of don’t ask, don’t say. This is about people’s lives and our duty of care towards them. Anecdotes and speculative figures are no substitute for hard-edged data and empirical research, and today I again ask that data collection be instigated.
The noble Lord pursued this argument in June last year when he asked Her Majesty’s Government:
“What data is collected about the incidence of mesothelioma among members of the armed forces; what studies of this issue have been conducted; what estimates they have made of the future incidence of mesothelioma among service men and women and of connected fatalities”.
Those questions still have to be answered, and I hope today’s debate will help us to attend to that. In reply the Minister said:
“The MOD has not conducted studies or research about mesothelioma”.
Surely it is high time it did.
The London School of Hygiene & Tropical Medicine produced an estimate in 2009 that about 2,500 Royal Navy veterans will die from mesothelioma between 2013 and 2047. Surely, we should be commissioning research across the services to establish what the likely incidence will be and, more importantly, what we can do to avert this suffering and these deaths. Surely we should be supporting the work of our scientific community and offering hope to those who have been diagnosed with this horrible disease.
Lord Empey
My Lords, I support the amendments and welcome the statement from the Minister. It was sobering when the noble Lord, Lord West, said at an earlier stage that he and others played snowballs with this material in vessels. Sadly, anybody who comes from an industrial city such as mine with shipyards and other related businesses knows that that was common practice. Dust and fibres were brought into homes on clothing, and that transferred the disease to families, which is why in 2001, when I was Enterprise Minister, I set aside £180 million to cover what we considered to be the compensation required for people who had previously worked for shipyards, which were a nationalised business at the time, to cover deaths to 2050. The noble Lord, Lord Alton, who has done enormous work on this issue over recent years, says the same thing—that that is the sort of timescale.
What is not mentioned is that while some people think this disease is literally dying out, it may be in this country, but it is not dying out in the world. I am sure we have all seen the horrifying photographs of women in the Indian subcontinent surrounded by mountains of this material which is coming off ships that are being scrapped on beaches in Bangladesh, India and Pakistan. They are being dismantled, and these women are sorting this stuff out. It is horrifying to think of the downstream consequences that will produce. Therefore, anybody who thinks this matter is going to be settled in a few years is wrong.
In the amendments in my name in this group I want to draw attention and attempt to raise awareness through publicity among former members of the armed services who may be at risk or who may be susceptible to this disease. It is important that ex-service personnel and their families are made aware of the changes that are now taking place. I was also hoping for a monitoring process to ensure that the comprehensive and prompt detection of cases is also part of it. If people have been exposed, while it may not be currently curable the management of the disease can be handled. I had two neighbours who got this disease; it was a terrible death that they suffered. One of those individuals spent just one year of his entire career in the shipyard, where he, from time to time, went through an area where the electrical materials were being covered in asbestos. One exposure to one fibre, if you are susceptible, can be enough. That was 40 years earlier. It does not discriminate between a person’s normal health, class or physical condition. It is just one of those things: some people are susceptible and others are not. It does not matter whether you are exposed to it for one day or for 20 years. If you are susceptible, you are susceptible.
Lord Brown of Eaton-under-Heywood
My Lords, I, too, welcome the Government’s announcement proposing compensation for service personnel who have contracted mesothelioma. It perhaps does not matter, but I am rather concerned about the wording of Amendment 21, particularly proposed new subsection (2). In the second line of that proposed new subsection, the requirement on the scheme is to compensate those who,
“have been diagnosed with diffuse mesothelioma as a result of”,
working for the Armed Forces. The words “result of” create all sorts of problems because, as has already been explained—it is well known to all of us who have had to deal with this ghastly disease down the years—it is very difficult to know how one came by what may have been just a single brief exposure and thus how one came to suffer the disease.
I ask for some clarification: what is to be the scope of this proposed new scheme for compensation? Plainly, it will not be necessary to establish ordinary liability in the way of negligence or breach of some statutory duty. Will it be necessary to prove even that one has been exposed to asbestos in the course of one’s service? I did national service more than 60 years ago. If, say, after the 40-year period in which this can develop—it can actually probably be even longer than that, so say after 40, 50 or 60 years—suddenly one receives this terrible diagnosis, does the mere fact of having done national service or whatever 40 years or more earlier entitle one at that point, without more, to compensation? Will it be necessary to prove even exposure to asbestos?
I point out that in the non-military context the courts have been grappling with this problem for years. There was a case called Fairchild, then one called Barker, and then in 2011 I was in the Supreme Court for the last case on it: Sienkiewicz v Greif. We have pretty much arrived at the situation now where anybody can get compensation where they have this diagnosis and can show that they were exposed to asbestos during any earlier period—wherever it may have been, in schooling or employment—and assuming that there is money there, the employers were insured and all the rest of it. True, the claimant must establish liability, but that is not generally much of a problem. If they were exposed to asbestos the likelihood is that they will be able to show negligence or breach of some protective duty under some statute.
All I ask is that there be clarification: is this intended to apply—one hopes that it is—to literally anybody who served in the Armed Forces and later contracted mesothelioma, or will it be necessary to prove at any rate some exposure to asbestos? That may create difficulties if service was 30 or 40 years ago.
Baroness Jolly
My Lords, I add my congratulation to those of other noble Lords to everyone who campaigned for this so hard and for so long. It seems that these last few sufferers were almost proving elusive. I am delighted that the Government announced that they will bring them into the scheme. The British Legion has also been hugely active in this regard and deserves congratulation, too.
The noble Lord, Lord Alton of Liverpool, showed remarkable tenacity in all this, particularly today, and in his quest for research funding. As noble Lords said, research is critical. On that point, it is worth mentioning for the Committee—and the noble Lord, Lord Alton—that the NHS does not record employment. A veteran goes to sign up the day after he or she leaves the services and the NHS takes their name, address, number and whatever. That is something else he might need to think about. It is not just in this area that the NHS recording employment would be really useful. It would help with research, treatment and, in some cases, diagnosis. There is work still to be done there.
Although I welcome this amendment, the devil is of course in the detail. Tough decisions always have to be made about the lump sum balanced against the annual income from war pensions and anything supplementary, multiplied by the life expectancy of a partner. I would like to quiz the Minister slightly on how this will be managed. Will people be given advice and support? If that comes from within the Veterans Welfare Service, which is part of MoD, how can that advice and support be seen to be independent?
Lord Touhig
My Lords, I do not intend to repeat the very important questions put by other noble Lords. I just add one brief reflection. I spent a great many years when I served in the other place helping to deal with compensation claims from former miners for illnesses they suffered as a result of working underground. For several years, I chaired a committee set up by my noble friend Lord Murphy of Torfaen when he was Welsh Secretary and I was his deputy. We sought ways to speed up the system of payments. I had more than 500 cases in my own constituency of Islwyn and more than £50 million was paid out in compensation. We had to overcome all sorts of difficulties, but we worked at it and did it. However, that job was unfinished. Try as we did, we could not persuade the Government to compensate workers on the surface who were often exposed to more dust than those working underground.
I was moved at Second Reading when my noble friend Lord West of Spithead spoke for the small number of mesothelioma sufferers who did not meet the qualifying date to be included in the compensation scheme. It would now appear that that has been corrected, and I pay tribute to him and the noble Lord, Lord Alton, for the work they have done on this. The Government have listened. That is not a bad thing. I am the first in line to congratulate them on listening and acting.
Earl Attlee
My Lords, I am grateful for the progress that has been made by the Government in expanding the scheme. When I supported my noble friend Lord Freud with the Mesothelioma Act, I could not understand why it was not extended to MoD personnel. My question to the Minister is about research. Many noble Lords raised the issue of research, which could have very great benefits. What lines of research are available? When I was with my noble friend Lord Freud, I understood that there were not that many good avenues for research. I have not found any areas of research that might provide some benefits.
Lord Alton of Liverpool
Perhaps I can help the noble Earl because his noble friend Lord Prior of Brampton has been extraordinarily helpful on this subject and, as recently as two weeks ago, convened a meeting at the Department of Health which I attended. Many of the people involved in current research into mesothelioma were present. The big issue they all raised was sustained funding. The noble Earl, Lord Howe, knows far more about this than me so I am sure he will deal with it in his reply. The noble Earl, Lord Attlee, can be reassured that there is a lot of interest within the research community but it comes down to funding.
Earl Howe
My Lords, I thank the noble Lord, Lord West of Spithead, for raising this critical issue. Mesothelioma—as the noble Lord, Lord Alton, outlined—is a devastating disease that changes the lives of not only the people diagnosed with it but also those who care about them: their families and loved ones. The fact that life expectancy after diagnosis can be so tragically short is why it is so important to ensure that we get the support right for those affected by the disease.
The arrangements we announced will give veterans and their families greater control over their finances and choices to suit their individual needs. So, subject to finalising the necessary legislative changes, lump sums of £140,000 will be able to be paid from 11 April 2016. The lump sum will be provided through the well-established war pensions scheme, administered by Defence Business Services Veterans UK. Veterans UK currently prioritises claims for mesothelioma and will continue to do so. Claimants will be given a choice of either the new lump sum or the existing war pension payments. The noble Lord, Lord Empey, spoke about the need to raise awareness and I fully understand that concern. Defence Business Services Veterans UK will write to existing and new war pensions scheme claimants diagnosed with diffuse mesothelioma to explain that they have the option of the current payment arrangements or the new lump sum. The Veterans Welfare Service will be on hand to help claimants understand the lump sum option.
Defence Business Services cannot offer independent financial advice, so claimants will be advised to seek independent financial advice and to discuss their decision with their families. In addition to the announcements we made and to raise awareness of the lump sum option, details were given on the same day to ex-service organisations for them to publicise to their members.
On detection and treatment of mesothelioma, when individuals leave the Armed Forces their healthcare needs become the responsibility of the National Health Service. Most people with mesothelioma will therefore see their GP first if they are worried about symptoms. Regrettably, there is no reliable screening test for mesothelioma. The aim of screening is to pick up cancers at an early stage of the disease before symptoms develop. At the moment it can be difficult to diagnose mesothelioma since the usual tests for lung diseases often appear to be negative. Additional monitoring—as proposed in Amendment 22—outside of encouraging those worried about symptoms to contact their GP as early as possible would therefore not help detect cases any earlier.
We are, however, engaging with NHS bodies on disseminating information to GPs, respiratory clinics and other healthcare professionals so that when they treat a veteran with mesothelioma caused by military service they can also direct them to the GOV.UK website and the Veterans UK helpline. They have details of how to make a claim under the war pensions scheme and the new lump sum option. I hope that the Committee will agree that this shows that we are absolutely committed to supporting veterans with mesothelioma, and the wider Armed Forces community.
Lord Tunnicliffe
The Minister mentioned necessary legislative changes. Is it the Government’s intention to use the Bill as a vehicle?
Lord West of Spithead
My Lords, I thank all those who have spoken. It shows the concern that we all have about this dreadful disease. There has been a lack of understanding about it. The efforts of so many are beginning to make people more aware. I would very much like to be included in the letter of response about the central analysis of research, which the Minister was going to send to the noble Lord, Lord Alton. I am sure he will send it to all Members here, because it would be interesting to know whether that LIBOR funding is available and whether it is going ahead. That would be very useful.
In among all this, this is a most happy outcome for the 60 people who have fallen through the cracks. This is good news and it is so lovely to have unadulterated good news. That so seldom happens. It was urgent, because between four and five of these men die every month. I am glad that this change is happening quickly. It will therefore have an impact and make a real difference. It is in the spirit of the Armed Forces covenant as well. I know that the Minister personally really understands that issue and how important it is. I thank him for that. It is the right result and I congratulate the Government on recognising the justice of the claim and for taking this action. I know that there is still a lot more to be done in other ways, but that is all very good news and I beg leave to withdraw my amendment.
“Reporting obligation on overseas deployments (civilian casualties)
(1) The Royal Air Force Commander responsible for review of reports on civilian non-combatant casualties submitted to the Ministry of Defence in connection with UK deployments overseas shall report to the Minister for the Armed Forces, at least once every quarter or at any more frequent intervals as the Secretary of State may specify, on—(a) the number of reports on civilian non-combatant casualties submitted by independent bodies during the period since his or her last report;(b) the number of reports on civilian non-combatant casualties submitted by the civilian casualties tracking unit in that period;(c) the number of reviews on civilian non-combatant casualties carried out in that period;(d) the outcome of such reviews; and(e) the sum and allocation of funding for any awards made as a result of the civilian casualty review procedure in that period.(2) A report under subsection (1) shall include—(a) a copy of the relevant civilian casualty review procedure;(b) working definitions of the terms “civilian” and “combatant”; and(c) the standard operating procedures in place to enable the review of reports of civilian non-combatant casualties.(3) In this section “UK deployment” includes any airstrikes carried out by UK personnel operating manned or unmanned aircraft remotely from the United Kingdom or United States.(4) On receipt of any report under subsection (1), the Minister for the Armed Forces shall—(a) lay a copy of the report before Parliament, and(b) lay a copy of the Government’s response to the report before Parliament, making particular reference to the operation of the civilian casualty review procedure, and any relative increase in reports, reviews or awards.”
Lord Hodgson of Astley Abbotts (Con)
My Lords, I sense that the horse is heading for the stable, and at an increasing rate, so I will be as brief as I can. I apologise to the Committee for not having taken part in proceedings before, but I have a particular interest in this area. The Committee should be aware of my involvement with the All-Party Group on Extraordinary Rendition and the All-Party Group on Drones.
In that connection, I ask my noble friend to thank his colleagues in the Ministry of Defence for arranging for us to go to RAF Waddington to see the operation of the drones there. It was exceptionally impressive. I took away three important things. One was the care being taken, with the forces on the ground calling in the strikes being balanced by people in the cooler atmosphere of RAF Waddington, who were able to provide the right balance.
Another was the stress on personnel, in the sense that personnel left their homes on the base, where the children were not doing their homework and the dog had to go to the vet, and went to the place they operated the drone from. They might, over the course of the next six or eight hours, have had to do some exceptionally unpleasant things that might result in the death of a fellow human being, then drive home again and, 10 minutes later, be back with the dog still needing to go to the vet and the kids’ homework still not being done. It is a very stressful situation, and the care that the ministry was taking to make sure that everyone’s mental health and well-being were being properly looked after was impressive. Last of all was the international nature of the operation in the sense that the operations at RAF Waddington are then passed to the Creech Air Force Base in Nevada. As the RAF officer explained to us, if you are being asked to get up at 2.30 am to sit in a hut and make these sorts of decisions, it is quite destructive for your mental health: it is much better if it can be passed to somebody in another part of the world. It means that there is this rotating situation which has its own issues, stresses and strains.
With that background, I turn to my amendment and the reasons for it. It is, of course, a probing amendment. Casualties are an inevitable and ghastly by-product of war. Every casualty is a tragedy, but civilian, non-combatant casualties are probably doubly so. I say that for two reasons. First, the long-term damage to the fabric of society if women and children are traumatised takes generations to recover from. Therefore, we need to be particularly careful of the damage that we might be doing to those groups. Secondly, and no less importantly, mistakes—casualties among civilians—are one of the best, possibly the best, recruiting sergeants for the extremists. People who have seen their village wrecked, their families or communities blown apart, are unlikely to be sympathetic to the cause that has resulted in this unfortunate episode.
We have now reached the three-month anniversary of the commencement of Parliament’s authorisation of military activity in Syria. We were promised a quarterly progress report to update both Houses, as a way of providing some form of parliamentary oversight of the mission against Daesh. I am not sure that that has yet been provided, but no doubt my noble friend could tell me when he comes to wind up.
Accountability and transparency are important aspects of this country’s military activities in the Middle East. They play a critical role in ensuring continuing public support at home for a policy that is bound to have its controversial aspects, particularly in the maintenance of popular support in our minority communities. However, accountability and transparency are also important for the maintenance of this country’s reputation abroad. We should be giving an example by setting standards that our allies will emulate, that will shame our enemies and that will give third parties caught up in the crossfire some confidence that these terrible events—which have, in many cases, shattered their lives—have not been undertaken capriciously or without due thought.
This amendment seeks to build on the commitment made by Penny Mordaunt in the other place on when she said that Airwars, the NGO that provides surveillance or information about civilian casualties,
“has been proactive in submitting written reports of civilian casualties and we are grateful for its efforts and for the value that they add. Each case has been individually reviewed and it has been demonstrated that the civilian casualties were not caused by UK activity. Our targeting processes are extremely robust in this respect and in others, but I would welcome any further ideas about how value may be added. I have committed to review any reports of civilian casualties and I have oversight of the whole process, including compensation”.—[Official Report, Commons, 29/2/15; col. 672.]
She gave further reassurance in reply to a Written Question on 2 February this year when she said:
“Any credible concerns or evidence relating to the possibility of civilian casualties caused by air strikes may be submitted to the Ministry of Defence Ministerial Correspondence Unit”,
and gave an address and email address.
This need to clarify and commit to a UK standard is particularly important as it appears that yet another remote engagement—in Libya—is getting under way. Further, there are also indications of new collaborative working with partners, in particular the United States, which have emerged in recent weeks. Most recently, as has been reported in the press, the Secretary of State has authorised the use of RAF Lakenheath for US air strikes in Libya on the—I have to say uncertain—legal basis that “it makes us all safer”.
The UK can and should lead here in forging a model civilian casualty review procedure and a model procedure for dealing with compensation claims as well as in standards of transparency to show how this is working in practice. This might act as a model for Russia or, more likely, for other EU states and the United States in and outside the traditional battlefield.
The UK has carried out 600 air strikes in Syria and Iraq and flown more than 2,100 combat missions against Daesh. The Defence Secretary has stated that the UK is probably the second most important part of coalition air activity in strikes as well as in surveillance and intelligence activity. According to the NGO Airwars, there are credible reports that up to 952 civilian casualties have been caused by coalition air strikes, excluding Russia. The NGO puts that figure at between 3,200 and 3,800. Eleven out of 12 coalition members, including the United Kingdom, deny any civilian casualties. This is unprecedented in a major military engagement and naturally invites questions about how civilians are being classified, what the onus of proof is, how battle damage assessments are being undertaken in the absence of ground troops, what sort of procedures are in place to make sure that credible allegations of civilian casualties are reviewed rigorously with sufficient independence, what discussions and agreements there have been about these matters with coalition partners, whether there is a realistic chance of a co-ordinated or collective response, what are the implications of joint operations and whether the UK has a non-combatant casualty cut-off value like the US.
As far as the UK is concerned, we have a good record on civilian casualties and the disclosure of relevant information. The UK has second place in Airwars’ transparency table, which is a matter on which the MoD deserves congratulation. However, I am not sure that it is enough to announce that there have been no civilian casualties caused by 600 air strikes for which we have been directly responsible—and there will be many more which we have supported—without additional information and disclosure of relevant policies and procedures.
Subsection (1) of the proposed new clause would impose a new quarterly reporting obligation on the responsible commander to report to the Minister in order that she can report to Parliament. The report need not be long—it can be quite short—but it must include the basic statistics outlined in the amendment.
Proposed new subsection (2) goes a little further. So that we can make sense of the report in proposed new subsection (1) and to promote the principles of transparency and accountability to which, no doubt, the MoD is committed, the report must include three key sets of documents: a copy of the relevant civilian casualty review procedure; working definitions of the terms “casualty” and “combatant” and the standard operating procedures in place to enable the review of reports of civilian casualties. Most of these terms are drawn from the ISAF model used in Afghanistan and do not come from the MoD commitment in relation to the mission against Daesh.
Several parliamentary Questions have been tabled in the House of Commons which suggest that a policy or procedure is under way, or at least is at an advanced stage of development. For example, the Minister for the Armed Forces has said that the Ministry will “analyse the risks” in any potential air strike in advance and,
“every strike is subject to careful post-mission scrutiny”.
However, it seems likely that the information I am seeking already exists, although possibly under a different or updated name. I would welcome my noble friend’s clarification on this point.
Baroness Smith of Newnham
My Lords, I welcome the probing amendment from the noble Lord, Lord Hodgson. He is absolutely right to raise one of the issues that upsets huge numbers of the British population in any military intervention—the danger of civilian casualties. The idea that that should be added to the report that is brought quarterly is clearly welcome. I very much hope that the Minister will be willing to look into that. One advantage of the United Kingdom entering into the war in Iraq and over Syria was precisely that we have precision weapons. The suggestion that we have not caused any civilian casualties in the past three months is clearly welcome.
I realise that this is only a probing amendment, but I am slightly concerned that the noble Lord suggested that for the quarterly report there should be working definitions of the terms “civilian” and “combatant”. How do the UK Government define those terms? I would hope that it would be something in the glossary, not something that would be redefined every three months. There is a suggestion that perhaps the United States has a rather more generous definition of combatant that we would in the United Kingdom, and that males over the age of 15 are seen as combatants if they are in certain areas. I would very much hope that that is not a definition we would ever consider.
This is a welcome probing amendment, and we would very much like the definitions. My noble friend Lady Jolly has also asked whether the Minister could tell us what work has been done to assemble figures so far.
Lord Thomas of Gresford
The Minister will recall that I asked a Question on this topic two or three weeks ago. I support the amendment proposed by the noble Lord, Lord Hodgson. There is a danger, when we are concerned with a definition of UK deployment that includes,
“any airstrikes carried out by UK personnel operating manned or unmanned aircraft”,
that we may forget that we are part of a coalition under joint command. It is a joint operation and, in such a situation, we cannot say that we are responsible only for these bombs but not for other bombs dropped by other countries under the same command as ourselves. This country is bound legally and morally by the activities of all those operating in the coalition. We carry that responsibility for the deaths and maiming of civilians, whoever’s bomb it is. Civilians do not care whose bomb it is if they are maimed. If it is under joint command, we have a responsibility.
Lord Touhig
My Lords, living as we do in a time when news reporting is constant, continuous and around the clock, the public rightly expect Governments to be the same, especially when reporting on conflicts in which our Armed Forces are engaged. Parliament and the British people have the right to be kept informed about not only what happens to our forces but also the impact our actions might have on civilians in the conflict zone. The Government currently report on civilian casualties in a number of different conflicts that we are involved in, including Iraq, Syria, west Africa—the Ebola response—and Afghanistan. That is the right thing to do. It demonstrates openness, transparency and proper regard for the loss of life that inevitably occurs in conflict, whether military or civilian deaths.
None of us who supported the Government’s decision to use air strikes against ISIL in Syria did so lightly. I have not spoken to a single person who did not have concerns that there would be casualties among the civilian population. To date, the Government have stated that there have been no reports of civilian casualties as a result of our air strikes. Having said that, I look forward to hearing from the Minister what guidelines the Government set themselves for collecting data and reporting on casualties, whether military or civilian, in any conflict in which we are currently engaged.
On this side, we certainly welcome the aspirations that motivated this amendment but we have doubts that it is the best way to deal with the issue of reporting on civilian casualties—I am grateful for the excellent briefing on this that I was given earlier today. For example, the amendment addresses the matter of reporting civilian casualties caused by air strikes but says nothing about reporting civilian casualties caused by ground forces. Often, ground operations are in play as well as air strikes. More than that, if we are to enshrine in primary legislation the reporting of civilian casualties in conflict, this is not the right vehicle to do so. Some might argue that reporting on civilian casualties is not simply an Armed Forces issue alone but has wider foreign affairs and international development implications. If that argument were accepted, we would need a cross-government input and approach to legislation to achieve the objectives that would be set out.
We certainly welcome the opportunity that this amendment gives us for debate and we have had some important and useful contributions. I look forward to the Minister’s reply and hope that we will have regular reports to Parliament on the conflicts, especially details of the number of casualties—even where there are none. That is very important. We welcome the opportunity for debate that the amendment affords but in its present form we would not support it.
Earl Howe
My Lords, I am grateful to my noble friend Lord Hodgson for introducing his amendment, which would, as he explained, create a legislative obligation on the department to report civilian casualties following RAF operations, including sharing the details of investigations with Parliament. I recognise that this is a probing amendment but I hope to show my noble friend that his concerns are recognised and being properly addressed.
I make it clear at the outset that the MoD takes very seriously—and always will—any allegations of civilian casualties. The Defence Secretary committed to review all claims of this nature. We have robust processes in place to review reports of civilian casualties and to launch investigations where appropriate, and we will continue to consider all available credible evidence to support such assessments.
It is important for me to emphasise that the Ministry of Defence takes all feasible precautions to avoid civilian casualties when conducting any form of military operation. All missions are meticulously planned to ensure that every care is taken to avoid or minimise civilian casualties, and our use of extremely accurate precision-guided munitions supports this.
We have a robust process in place to authorise air strikes that is tried and tested. All military targeting is governed by strict rules of engagement in accordance with both UK and international humanitarian law. Of course, the men and women of our Armed Forces are highly trained, including in the law of armed conflict. I should also make it clear that we will not use force unless we are satisfied that the use of force is both necessary and lawful. When we carry out a strike, we carry out a full assessment to determine the damage that has been caused, specifically checking very carefully whether there are likely to have been civilian casualties.
I can assure the Committee, lest there is any doubt, that the Ministry of Defence is committed to transparency as far as possible. We have been very open and transparent about the strikes conducted in Iraq and Syria. They are reported regularly online two or three times a week. These reports explain where the action has taken place and what effect has been achieved in the fight against Daesh. However, I hope that the Committee will agree that it is also paramount that we maintain personnel and operational security. This can include not revealing details about our targeting process, which may endanger personnel and our ability to operate.
Furthermore, while a requirement in primary legislation to publish data on a regular basis may be seen as a means of holding the current Government to account—and, for that matter, future Governments—it may also on occasions be a very inflexible tool which is soon out of date and redundant. As I have made clear, the MoD has clear processes and procedures to limit civilian casualties, and the principle of openness and transparency on this issue is something which the MoD and I strongly support. Where information is not disclosed, it is for very good operational reasons.
The noble Lord, Lord Touhig, asked about regular reports on Operation Shader, which, as he knows, is the counter-Daesh operation in Iraq and Syria. The Government’s first quarterly report on Syria was provided to the House of Commons by the Secretary of State for Foreign and Commonwealth Affairs on 16 December last year. The Secretary of State of DfID, my right honourable friend Justine Greening, provided a second quarterly report on 8 February this year. I cannot be specific about the date of the next report but it will be issued in due course.
I will write to the noble Baroness, Lady Smith, on the particular question she raised and to my noble friend in respect of those of his questions that I have not covered. In the light of what I have said on this matter, I hope my noble friend will agree to withdraw his amendment at this stage.
Lord Hodgson of Astley Abbotts
My Lords, I am grateful to all who have participated in this short debate—the noble Baroness and the noble Lord, Lord Thomas of Gresford. Apropos of his comment, I of course understand that this is a coalition, but I am thinking, “Physician, heal thyself”. We start by trying to make sure that the unpleasant things that our personnel are doing on our behalf are properly corrected first, and then, by setting standards, maybe our allies will follow.
I thank my noble friend very much for his full reply and his promise to follow up on the points that he has been unable to answer now. I hope that I made it clear that from our visit to RAF Waddington we were well aware of the very considerable care that has been taken to make sure that those on the ground are balanced by the cooler heads further away from the point of action. I understand the question of inflexibility. This is a probing amendment, but it was helpful for us to have a debate this afternoon, and I look forward to hearing the follow up in due course. In the mean time, I beg leave to withdraw the amendment.