Earl Attlee
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(8 years, 7 months ago)
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Lord Tunnicliffe (Lab)
My Lords, I worked out before this evening that Amendments 1 and 2 were, in fact, Amendment 3 in Grand Committee on 1 March. Mindful of the guidance in the Companion, that arguments fully developed in Committee should not be repeated on Report, I took the trouble to read the report of the Grand Committee. At the time, I indicated that I was to some extent attracted to some of the arguments of the noble Lord, Lord Thomas of Gresford. I said:
“I am putting a burden on the Government, today and perhaps in subsequent meetings and in writing, to argue the case for why we should not move in the general direction of these amendments and make the whole process for the defendant more analogous to that of a civil court”.—[Official Report, 1/3/16; col. GC 48.]
I still cleave to that general direction. The Minister then made a spirited defence, stretching from col. 50 to col. 54, which I read and also found persuasive in the sense that making small changes is likely to have unforeseen consequences which might be difficult. I have heard nothing today to change my general direction of travel. The Government should consider examining in the Ministry of Defence, perhaps in concert with the Ministry of Justice, whether the decision-making process where the citizen is on trial—the member of the Armed Forces becomes a citizen at this point—should not be closer to the civil system.
Moving in that direction would create some significant change and there may well be some significant consequences. I am not convinced that today’s amendments would not have unforeseen deleterious effects. Accordingly, these Benches will not be able to support them. We ask the Government to think seriously about the arguments that have been brought forward in Committee and on Report, and to look at the extent to which there should be some movement towards the citizen when on trial having much closer rights and a similar process to the civilian courts.
Earl Attlee (Con)
My Lords, I remind the House that I am still a commissioned officer in the reserves, although I am not training. This is my 60th year of life, so I will not be doing it for much longer. The noble Lord, Lord Thomas of Gresford, suggested that both the general public and those in the Armed Forces do not have confidence in the system of discipline in the Armed Forces. My experience is different. I have never had members of the Armed Forces come to me and say that they lack confidence in the system of military discipline. I have to admit that it is a robust system.
I have also never heard a member of the public—someone who is not in the Armed Forces—say that there is something seriously wrong with the system of military discipline, apart from when one reads articles in the Daily Mail, some of which are not very well researched.
One of the problems with what the noble Lord suggests is that we do not understand the dynamics of how the court martial panel works. In Committee, I suggested to the Minister that we need to do research, along the lines proposed by the Opposition Front Bench, to understand what the effect would be. We need to war game it before we start altering the system. I suggested to my noble friend that he keeps this under review and makes sure that we are going in the right direction.
Lord Berkeley of Knighton (CB)
My Lords, I have been listening with great interest to this debate and been persuaded by what has been said on all sides of the Chamber, but one thing occurred to me when we were debating Amendment 2. The Minister said he was not really aware of a lack of confidence in the system but I have to say that the noble Lord, Lord Thomas, is right. It is not just in the Daily Mail. Whenever you read about Deepcut or any of these scandals, the people whose families are affected do not have total confidence in the system. They think there are cover-ups. Only on the radio on the way here, I heard the families of people who were at Hillsborough saying they were let down and a chief constable has been sacked because there was a cover-up. It really is not good enough to say that the public have trust and the Minister is not aware of mistrust. I can assure noble Lords that there is mistrust among the general public, who feel that organisations that inspect themselves when there is a problem are deeply suspicious. I am not saying that the military does not often do things very well—or the police or any other organisation—but the general public are concerned about this issue.
Earl Attlee
My Lords, the noble Lord, Lord Berkeley, just mentioned Deepcut. I urge anyone who has the slightest worry about Deepcut to read the Blake report, which explains what happened.
I agree with the general thrust of these amendments, particularly the sensible approach from the noble Lord, Lord Touhig. In Committee, the Minister was sympathetic to our concerns but he has rather too much faith in the commanding officer. Yes, commanding officers are extremely experienced and they are specially trained to be commanding officers. There is a course for commanding officers-designate. My experience is that with every level you go up in terms of promotion, you get more information about what your responsibilities are and what the difficulties are.
Nevertheless, the power of the commanding officer can be delegated to more junior officers, so quite often—in terms of discipline, for instance—minor offences can be dealt with by a major or a lieutenant-commander. These cases are exceptionally difficult for the commanding officer to investigate. Clearly he will not be able to investigate them personally. He may even be out of the country when the allegation arises. The commanding officer or the acting or delegated commanding officer will have to appoint someone else in the unit to carry out the investigation, and that person will not be any better trained. Furthermore, the fact that someone else in the unit may have to be appointed to carry out the investigation may deter someone from making an allegation in the first place.
Amendment 5 covers only sexual assault; it does not cover inappropriate contact, by which I mean touching. However, this can also be a problem and it can be a precursor to more serious problems. As I said in Committee, my belief is that the service police should keep records of allegations of sexual assault and inappropriate contact. They would then know whether a person had made this type of complaint before and could ask whether they could be a serial complainant, and they would also have records of someone who had had a similar allegation made against them before and they might even know the MO, so they would understand whether the allegation was likely to be true or malicious. If the service police keep records, investigations can be facilitated, and it is better to achieve this through a policy change rather than through the amendment, which, as I said, has the defect of not covering inappropriate contact.
The noble Baroness, Lady Jolly, referred to the culture in the Armed Forces as a reason for publishing the statistics. She will be aware that the Armed Forces carry out continuous attitude surveys that measure changes. She made the important point, from her own background and experience, about measuring changes. In Committee, the Minister explained what information is already released and the noble Lord, Lord Touhig, told us how difficult it is to access it. However, my concern is that the media—particularly the print media—will use these statistics to produce an easy story. It is easy to quote a horrendous number of incidents without comparing them with the number of such incidents in civil society.
In conclusion, I feel very strongly about the need for record-keeping by service police to facilitate investigations. These are very difficult matters for officers and warrant officers in a unit to investigate. Frankly, I do not think they relish it; they would rather hand it over to the service police, who have the relevant experience.
I hope the Minister can say something helpful to us, but I am also happy to join noble Lords later in keeping up the pressure on my noble friend the Minister, because I know that he enjoys getting pressure from me.
Lord Thomas of Gresford
Schedule 2 to the Armed Forces Act 2006 lists the offences that a commanding officer is required to report to the service police for investigation. There is a long list of offences, including, in paragraph 12(at), any offence under Part 1 of the Sexual Offences Act 2003,
“except one under section 3, 66, 67 or 71”.
Section 3 is a very important part of the Sexual Offences Act 2003. It relates to sexual assault, which of course can vary from a very serious sexual assault to the sort of touching that the noble Earl, Lord Attlee, referred to a moment ago. That provision means that the commanding officer is not required to pass on for investigation to the service police a complaint of sexual assault. I imagine that he most certainly would pass on an allegation of serious sexual assault, but there is a great loophole there because commanding officers differ. Some may have one view on what a sexual assault is and another may have a completely different view, in effect telling the complainant to go away and not be silly. So there is a problem there. At the moment it is an unexploded bomb within the system.
Baroness Jolly
I support the amendments. As the noble Baroness has just said, what is there not to like?
Children joining the services at 16 and 17 come in all shapes and sizes: from those embarking on technical or engineering careers to those joining the infantry and, possibly, the Royal Marines. Their wish is to be physically rather than mentally active, and they are required. The first group, at the start of an apprenticeship, will continue their education and will require a high standard of literacy and numeracy. The second group will not require such high standards and will not be comfortable with reading formal documents. There needs to be awareness that currently, these recruits do not study the same GCSEs as the technical recruits, but another curriculum. There is an issue here, because young men and women who enlist under the age of 18 can leave the Army at any stage up to 18, but if they have dipped out of the standard curriculum and are not studying a GCSE curriculum, their life chances will be affected. We need to be aware of that.
If the Minister cannot answer this question perhaps he will write to me. When was the readability of the documents the amendment refers to last examined? If the required reading age is greater than 10, as is being suggested—bearing in mind that the average Sun reader has a reading age of between eight and 10, so it is nothing unusual—perhaps these documents should be revised.
Earl Attlee
I support the recruitment of people under the age of 18 into the Armed Forces. It provides a fabulous opportunity for them.
I have no problem with Amendment 7 but I do not expect my noble friend to accept it. It would be a seriously good news report. I would certainly like to write the section on evaluating the effects on young service people. I would be able to write lovely case studies about youngsters coming from disadvantaged circumstances with poor employment prospects. These people will obviously be young, fit, able to read and write, intelligent and have potential. They can join the Armed Forces and have a fabulous career, whereas for their contemporaries in certain areas of the country the prospects are not very good.
The education and training they will receive will, generally speaking, be far better than they get elsewhere. They may leave the Armed Forces fairly soon but, by that point, if they are not in a highly skilled trade, they will probably have a vocational driving licence. As to the financial effects, it is a win-win situation. These youngsters will have an income their contemporaries will not have, so that is a win for them. They will be on the pathway to a decent career. When they become 18, they will be fully trained members of the Armed Forces and deployable.
To be charitable, Amendment 8 is unnecessary. It suggests that a young person recruited into the Armed Forces is practically illiterate. The reality, as my noble friend will tell us, is that a guardian’s consent is needed. More importantly, a young person who is illiterate to the extent that they cannot read and understand the recruitment papers would not be able to pass the service entrance tests. Their potential would be so poor that they would be of no use to the Armed Forces and would not be able to get in on that route. Therefore Amendment 8, to be charitable, is unnecessary.
Lord West of Spithead
My Lords, I have a certain sympathy for the amendment of my noble friend Lord Judd but I feel that allowing people to enter the services at 16 is a good thing. I tried to join when I was 14, which was slightly too young in my mother’s and the Navy’s opinion, but I joined at 17. As my noble friend said, a number of the people who join the services at that age come from disadvantaged backgrounds, and what the military does to those people is quite remarkable. If we were able to show that, everyone would see it, but there is no need to do so. It is right that we still take people into the services at 16. They gain a great deal and it is a useful and good thing for our society, in the same way as the cadet forces add a great deal to our society.
Lord Judd
My Lords, of course I thank the Minister for his very full reply. I listened to his admonishments about the things that he believes I have got wrong. I am afraid that I do not accept those admonishments and suggest that a report would give him the opportunity to set out in more detail for all to see the evidence behind what he keeps emphasising is the commitment to education. In saying that, I will again put on record how much I admire the dedication and work of many of those doing what is required of them. But even at this stage of the debate, and within all the constraints of practice, I wish to comment on the important points which the Minister has made before I close.
Functional skills provided by the Army are not the equivalent of GCSE grades D to G, as the Wolf Review of Vocational Education made clear. GCSE courses are longer and much more involved than functional skills courses, despite their notionally comparable educational level. They are an interim qualification only, designed to lead to GCSEs. In a House of Commons debate on 25 November 2013, it emerged that no more than 20 soldiers across the entire Army of all ages had gained a GCSE in English or maths in each of the past five years. I emphasise: 20 soldiers of all ages.
These are just some of the facts which do not altogether substantiate the fulsome position that the Minister likes to take. I hope that he will forgive my drawing this to his attention. A report would give him an opportunity to refute in detail, with evidence, the criticisms and to establish his case.
There is much I could say about complying with all relevant children’s legislation. However, I will just point out that the Armed Forces are exempt from most relevant legislation. As an employer, the forces, for example, are not required to ensure that all staff who work in direct contact with children have criminal record checks, despite living alongside recruits in training camps. No sixth form, public school or state school would be allowed to do that.
The noble Earl, Lord Attlee, was a little concerned by what I said about the recruitment process. I wish that the reality of the experience bore out what he claimed. There is no obligation on recruiters to meet parents or guardians at any stage in the process. Minors can be enlisted without their parent or guardian having attended any meeting with Army staff or any selection event. A signed consent form is required at the very end of the process but the Armed Forces have no way of verifying that the signatures are genuine. Neither parent nor guardian—
Earl Attlee
My Lords, I am not intimately familiar with the recruiting process for minors but my recollection is that the Minister covered precisely the points that the noble Lord is raising.
Lord Judd
My Lords, my point is that the Minister supported his particular concern by stressing that it was impossible to think that anyone coming into the Army was so illiterate that they could not read the material. The facts and figures produced by the Army itself do not altogether substantiate this. That is why, again, it is so important that we have this report regularly, which would enable us to see how fully—and, we hope, how well or how much better—this provision is being made. I really cannot see why the armed services would resist this.
I just say, in response to my noble friend Lord West, that I joined the cadet force at 14 and thoroughly enjoyed it. In fact, I remember getting credits on some of my courses for doing things relatively well because I was enjoying them. But my point is not about all that. The point is about the vulnerability of some of the children who are coming in and our need to take double care that we are looking fully at what they are letting themselves in for—because they are letting themselves in for things. For example, the majority of these young recruits coming into these schemes do not have the ability to provide the technical services that are becoming an important characteristic of the modern Army. They therefore, inevitably, predominantly end up in infantry regiments, which, as we saw in Afghanistan, have seven times the death rate of the rest of the Army. These youngsters are taking big decisions with huge implications. I do not want to discourage them—I take much pride and excitement in reading about VCs to youngsters in the 1914-18 war and I take great pride in hearing about the other examples that the Minister keeps, rightly, citing, such as the youngster who ended up with the sword of honour. On all this I agree, but there are lots who do not.
Of the youngsters on these courses, 36% drop out. What do we do to follow up on that? The British Legion has done research that demonstrates that the unemployment rates and the difficulties faced by these youngsters are greater than those of their peers in the same age group. In discharging our responsibilities we must face these facts and, to be able to take these stats seriously, we need to have systematic reports and information available. I just cannot see why the Armed Forces are not prepared to do this. I hope that the Minister, whom I have come to respect over the years, will listen to the plea by my noble friend Lord Tunnicliffe. In the hope that he will, I withdraw the amendment.
Earl Attlee
My Lords, I do not have any strong views on the merits of Amendments 9 and 10. However, I am extremely concerned about how long we have been engaged in very difficult operations in Afghanistan and Iraq. We were engaged in operations there for year after year; thankfully, that level of engagement has ceased. Many service people were doing multiple six-month operational tours in their career and we simply do not know what the long-term effect of that will be.
If mental illness arises in a veteran, it will be extremely difficult to be certain as to what caused it. Amendment 9 refers to it being “caused by” military service, but I am sure that in many cases the clinicians will not know what caused it, even though they will be sure that the patient is mentally ill. My great fear is that, because of the amount of operational tours that we have undertaken—with people undertaking multiple tours, as I said—we could have a much worse problem in future years than we thought we were going to have. So, looking longer term, we need to be careful about carrying out military operations that last a very long time.
Earl Howe
My Lords, both these amendments seek to address provision for the care and support of members of the Armed Forces who suffer from mental health conditions caused by service. The health of our Armed Forces community is hugely important to us all and I welcome the opportunity to set out the Government’s position again.
Turning first to Amendment 9, as I said in Committee, the Armed Forces compensation scheme—AFCS—already makes awards for injuries and disorders predominantly caused by service, including mental health conditions. The scheme is tariff-based and aims to make full and final awards as early as possible, so that individuals can have financial security and focus on getting on with life and living. Claims can be made while in service or when the individual has left. In cases where a disorder is not in steady state, prognosis is uncertain or treatment is ongoing or not yet begun, legislation allows an interim award to be paid at the most likely level. This award is then reviewed and usually finalised within 24 months of notification. Where, exceptionally, matters remain uncertain at review, the interim award may continue for a maximum of 48 months. If the disorder has improved and a lower tariff now applies, no recovery of benefit takes place, while if a higher tariff award now applies, the difference between the interim award and the final award is paid.
The AFCS tariff has nine tables of categories of injury relevant to military service—and they include mental health disorders. While the scheme has time limits for claiming, there is also a provision for delayed-onset conditions, including mental health diagnoses. The Ministry of Defence recognises that, owing to stigma and perceived impact on career, people may delay seeking help. The practical effect of this is that if a person who has left the Armed Forces some time ago is diagnosed with a mental health problem as a result of his or her service and makes a claim under the AFCS, a compensation award will be paid as soon as the claim is accepted. As a result of the recommendations made by the noble and gallant Lord, Lord Boyce, in his review of the AFCS, the Ministry of Defence increased the maximum lump sum award for mental illness from £48,875 to £140,000. This was to better reflect the impact of the most serious mental health conditions.
Broadly, the same mental health disorders are found in military personnel and veterans as in the general community—an exception being a lower rate of the most severe and enduring conditions such as schizophrenia.
Evidence-based effective interventions are now available for the common disorders, including PTSD. The treatments apply to both civilian and military contexts, with a high expectation of improved function, including return to work—especially if people are seen early.
In addition to the AFCS lump sum, the most serious conditions with likely limitations on civilian employability receive a tax-free guaranteed income payment—GIP. While in service, regardless of medical employability grading or being on sick leave, personnel retain their military salary. The GIP is paid for life and comes into effect on discharge from the services or from the date on which the claim is accepted. A lump sum of £140,000 attracts a GIP based on 75% of military salary, with enhancements for service length, age, rank and lost promotions.
Also as a result of the recommendations of the noble and gallant Lord, Lord Boyce, we established the Independent Medical Expert Group—the IMEG. The group—a non-departmental public body—includes senior consultants and academics and UK authorities on specialities relevant to military life, including mental health. It advises Ministers on the scientific and medical aspects of the scheme.
The noble and gallant Lord, Lord Boyce, also identified the need for further investigation into mental health. The IMEG therefore conducted a review that involved literature search and discussions with civilian and military experts and veterans’ organisations. The findings were published in its second report on 17 May 2013. The conclusions and recommendations on diagnosis, causation, assessment of disorder severity and the use of interim awards were accepted by Ministers and subsequently incorporated into the scheme.
The House will be interested to know that this year sees a further planned review of the AFCS, which began recently. The review is currently in the stakeholder engagement phase and has been approaching charities, claimants and other government departments. This quinquennial review will consider the scheme’s coverage and levels of awards, in particular for those most seriously injured, including those with mental health conditions. It is expected to report at the end of 2016.
The second amendment in this group would create a specific obligation on the Government to have particular regard, in their annual report on the covenant, to parity of esteem between mental and physical healthcare. The Government are absolutely committed to meeting the healthcare needs of the Armed Forces community. The Secretary of State has a statutory requirement to include in his annual Armed Forces covenant report to Parliament the effects of membership, or former membership, of the Armed Forces on service people in the field of healthcare under the covenant.
The healthcare we provide to our service personnel, both at home and deployed on operations, is truly world class. Last year, the principles of the covenant were enshrined in the NHS constitution for England. This gives a commitment to ensure that, as well as those serving in the Armed Forces, reservists, their families and veterans are not disadvantaged in accessing NHS health services in the area in which they reside.
Since 1953, priority access to NHS specialist services in Great Britain has been provided for service-attributable disorders, with no-fault compensation awards. In 2009, this was extended to include treatment for any disorder where a clinician recognises a causal link to service. Priority is decided by the clinician in charge, subject only to clinical need.
I should also mention further work on mental health. For mental health disorders, stigma and perceived discrimination in employment can act as barriers to access and engagement with care. This is not unique to the Armed Forces but common among men. In 2004, led by the Health and Social Care Advisory Service, the MoD, UK health departments, NHS and Combat Stress explored features of an effective veterans’ mental health service, piloting various service models in locations across the UK.
The evidence showed that while some veterans were not comfortable with clinicians who had no military experience, others were equally anxious to see only civilian health professionals. What seem to work best are multifaceted services, including healthcare, social support, benefits advice et cetera, delivered in an environment of cultural sensitivity and empathy. The pilots also confirmed that best-practice interventions work, with high rates of improved function and a return to a full life with contribution to family, community and work.
As a reflection of these findings, and of Dr Andrew Murrison’s Fighting Fit report, since 2010, a network of veterans’ mental health services has been established in England and Wales with special arrangements for veterans also established in Scotland. The Armed Forces covenant gives a commitment that veterans should be able to access mental health professionals who have an understanding of Armed Forces culture, and NHS England is currently completing an audit of veterans’ mental health services.
In service, there has also been increased focus on good mental health and well-being, with emphasis on prevention and protection through a chain of command lead. Mental health awareness is part of a through-life training strategy starting at basic training, with self-awareness and with annual refresher courses. There are then specific courses for those with leadership responsibilities. The courses cover: raising stress management; reduction of stigma; building resilience; early detection of problems in self and others; and specific pre-deployment, deployed and decompression measures. Trauma incident management teams and mental health nurses are now considered essential parts of a deployment package, and mental health first aid training to service personnel is being delivered by SSAFA in collaboration with Combat Stress, Mental Health First Aid England and the Royal British Legion.
I should add that there is no evidence of an epidemic of mental problems in military personnel—rather, levels of the common mental health problems in regulars and reservists are broadly similar to those of the matched general population, while levels of PTSD in some groups, and in relation to combat, are slightly but not markedly increased. Where service personnel become ill, help is available in primary care with, as required, referral and outpatient support from the 16 departments of community mental health across the UK. When, rarely, in-patient care is necessary, it is provided in eight dedicated psychiatric units, again located around the country.
I therefore assure noble Lords that the Government are committed to meeting the health needs of the service community. We will continue to report on the provision of healthcare in the Armed Forces Covenant Annual Report, and our work to address mental health needs will be an integral part of that report.
The principles of the covenant are to ensure that the Armed Forces community is treated fairly in comparison to the civilian population. Parity of esteem is there to ensure that all health services treat mental health with the same importance as physical health, and it applies to everyone accessing NHS services, not just the Armed Forces community. For this reason, I remain firm in the belief that it does not need to be legislated for under the covenant.
I shall write to the noble Baroness, Lady Jolly, on any of her specific questions that I have not addressed. However, given our clear commitment to support those who suffer from mental health conditions, and the tangible steps that we are taking, I hope that the noble Lord will agree to withdraw the amendment.
Lord Tunnicliffe
Amendments 11 and 12 were Amendments 15 and 16 in Committee. I have reread the debate and do not note anything, other than Kenya, that has been added to them tonight. They go to the essence of the scope of military law. We were not persuaded to support them in Committee and we will not do so now.
Earl Attlee
My Lords, I am relaxed about these amendments but I expect that my noble friend the Minister will have something to say about them. Just to tease the noble Lord, Lord Thomas of Gresford, slightly—
Noble Lords
Earl Attlee
The Minister has not spoken yet. To tease the noble Lord slightly, with the benefit of hindsight, would he advise the junior marines who were defendants in the Blackman case to take their case to the Old Bailey? I do not think they would have got on very well.
Earl Howe
My Lords, I welcome the opportunity to restate the Government’s position on the further changes to the service justice system that the noble Lord, Lord Thomas, proposes. His intention with Amendment 11 is to extend the jurisdiction of civilian criminal courts in England and Wales by giving them jurisdiction to try members of the Armed Forces and civilians subject to service discipline for overseas acts that, were they committed here, would constitute sexual offences under the Sexual Offences Act 2003.
I apologise to the noble Lord, Lord Thomas, because I confess I am not clear what advantage the amendments would confer on the system as a whole. Noble Lords may be aware that service courts are already able to exercise jurisdiction in respect of acts committed overseas. Section 42 of the Armed Forces Act 2006 provides that a member of the Armed Forces is guilty of an offence under service law if they commit an act outside the UK that would constitute an offence under the law of England and Wales were it done here. If it is necessary to have a further conversation with the noble Lord after Report to clarify any misunderstanding that I have, I will be happy to do that.
Amendment 12 would give members of the Armed Forces accused of committing certain crimes overseas the right to elect to be tried by a civilian criminal court in the UK instead of a court martial. The crimes in question are those that the civilian criminal courts may try even if the event in question took place overseas. Those offences include murder, and would also include sexual offences if Amendment 11 were accepted as well. I note that Amendment 12 does not appear to propose that a member of the Armed Forces should have a right to elect civilian criminal trial in a case concerning conduct in the UK, where both the civilian courts and a court martial would have jurisdiction to try the case. I confess it is not immediately apparent to me why such cases should be treated differently.
Taken together, the effect of Amendments 11 and 12 would appear to be that while a service person who committed a sexual offence overseas could choose to be tried at a Crown Court rather than a court martial, a service person who committed the same offence in the UK would have no such choice. It is not clear why the amendment makes provision for electing civilian court trial only for conduct outside the UK, not in the UK.
The noble Lord may again not be too surprised to hear that we do not support these amendments. I said in Grand Committee in response to two very similar amendments tabled by the noble Lord that making the changes proposed would appear to imply that there may be reason to doubt the ability of the court martial to deal with sexual offences. I would make the same point about Amendments 11 and 12. Yet, as I said in Grand Committee, the service justice system has been scrutinised by the UK courts and by Strasbourg and it is now well recognised that the court martial system in the UK ensures a trial that is fair and compatible with the European Convention on Human Rights, both for investigations and prosecutions in respect of acts in the UK and for investigations and prosecutions in respect of overseas acts where the civilian police may not have jurisdiction. The Government believe that the service justice system, including the service police, the Service Prosecuting Authority and service courts, is capable of dealing with the most serious of offences and should be able to continue to do so.
The amendments would significantly undermine existing arrangements designed to ensure that cases are dealt with in the most appropriate court jurisdiction. In the case of offences which both the civilian criminal courts and service courts have jurisdiction to try, it is recognised that it is necessary to consider in each case whether the offence is more appropriately tried in the civilian criminal courts or in a service court. This applies not only to those offences committed overseas in respect of which the civilian criminal courts have jurisdiction, but also to offences committed in the United Kingdom which both the civilian criminal courts and service courts have jurisdiction to try. However, a decision on appropriate jurisdiction is rightly a matter for service and civilian prosecutors rather than the accused person.
There is a protocol between service and civilian prosecutors which recognises that some cases are more appropriately dealt with in the service system and others are more appropriately dealt with in the civilian system, particularly those with civilian victims. The principles of this protocol have the approval of the Attorney-General for England and Wales, and the Ministry of Justice. The protocol recognises that any criminal offence can be dealt with by the service authorities. The main factor in decisions on whether an offence is more appropriately dealt with in the civilian criminal justice system or the service justice system is whether the offence has any civilian context, especially a civilian victim. The protocol therefore provides for cases with a civilian context to be dealt with by the civilian criminal justice system. Where a case has a service context, it is important that the service justice system, which is specifically constructed to deal with that unique service dimension, is able to deal with the case.
Creating a right to elect of the kind contained in this amendment would override the existing protocol and could seriously undermine the service justice system. Many offences which involve conduct outside the UK will have a service context such that both service and civilian prosecutors would consider that they would be more appropriately dealt with in the service system. However, the proposed right of election could mean that a person accused of such an offence could make an election that led to their case being dealt with instead by the civilian criminal courts. We do not think this would be right. This is significant because the court martial is part of an overall system of justice and discipline, and the existing statutory provisions in the Armed Forces Act 2006 governing sentencing in the court martial reflect this. They are closely based on the civilian sentencing principles but include in addition, as I mentioned earlier, the “maintenance of discipline” and the “reduction of service offences”, which reflect special aspects related to the service justice system. In my response to Amendment 2, I touched on a number of these special aspects.
Allowing a case with a purely service context to be dealt with in the civilian system on the election of an accused therefore risks undermining the system of justice and discipline in the Armed Forces which the Armed Forces Act 2006 was carefully constructed to underpin. Where the prosecutor’s protocol indicated that a case should be dealt with in the civilian system—for example, a case in which the victim is a civilian—would the accused service person be able to override that and instead elect trial by court martial? We do not think that would be right. Furthermore, a right to choose which court should hear the case would open up the possibility of any co-accused making different elections, resulting in split trials in different systems with obvious implications for the efficient administration of justice.
There is another aspect to this, which the noble and learned Lord, Lord Hope, identified in Grand Committee and which it may be helpful for me to repeat here. The amendments are concerned with conduct overseas which is likely to be criminal under the local law as well as under service law. However, the authorities in states visited by our Armed Forces are commonly prepared to allow service courts to exercise jurisdiction rather than assert their right to try a case before their own civilian courts. A good example is Germany, where there is a very active and much-respected criminal justice system, but under the arrangements we have in place the German authorities are prepared to allow our service courts to exercise jurisdiction over cases with a service context.
Baroness Smith of Newnham (LD)
My Lords, in Grand Committee I welcomed a probing amendment tabled by the noble Lord, Lord Hodgson of Astley Abbotts, which referred to a duty to report on civilian casualties. At that point I raised certain questions. In particular, the noble Lord’s amendment sought working definitions of “civilians” and “combatants” every three months. It almost suggested that there would be rolling definitions.
At that time, the Minister undertook to write to me to explain the Government’s working definitions of “civilians” and “combatants” in the context of wars in Iraq, Syria and elsewhere. I am not sure whether the letter got lost in the post—there are rather a lot of Smiths in your Lordships’ House—but I certainly have not received a letter of that sort. Therefore, I should again like to ask the Government to explain how they define “combatant” and “civilian”. It may appear that they are definitions that can be produced from a dictionary, but the point is that some of our partners—particularly the United States—may have a rather looser definition of a combatant than one might expect in ordinary civilian life, and that it might include young men who are adjacent to conflicts but who may be seen as combatants. Therefore, I would very much welcome an explanation of how Her Majesty’s Government understand the term “combatant”, particularly as there appears to be a marked discrepancy in the figures. Eleven of the 12 partner countries have said that they have not caused any civilian deaths. The United States has acknowledged 41 deaths, yet Airwars has said that there have been 1,118 civilian casualties in the war against Daesh. Therefore, there is some disparity there and I wonder whether it is due to a difference in the definitions.
I do not intend to test the patience of the House by testing its will or by detaining your Lordships for very long, but one point to bear in mind is that the Armed Forces Minister in the other place, Penny Mordaunt, committed in defence Questions on 29 February to review any reports of civilian casualties, and she is apparently looking for ways in which this can best be done.
The purpose behind Amendment 13 is again to suggest a type of reporting system. But, given the difficulties with definition, we could tighten the wording slightly and suggest that there should be reports on civilian non-combatant casualties, which is belt-and-braces wording. Clearly, this is not something we are expecting to take to a vote, but we believe that it is very important that the people of the United Kingdom and our coalition partners in the fight against Daesh have certainty on what we believe to be civilian casualties, and that the belief that we have not caused any civilian casualties is actually correct, on an ordinary definition of “civilian”.
Earl Attlee
My Lords, with these issues, it is always difficult to measure casualties. That is not necessarily an argument against the amendment from the noble Baroness. Just to be really helpful to the Minister, of course, there are lawful combatants and there are unlawful combatants. So that is another issue.
Lord Hodgson of Astley Abbotts
My Lords, as the noble Baroness, Lady Smith, kindly said, I tabled a similar, rather less focused, amendment in Committee on 3 March and we had a useful debate then. I was grateful for my noble friend’s response, and we explored a number of the challenging aspects of this difficult matter. Now we have this more focused and more pointed amendment, redrafted in the light of those discussions and of the subsequent information that has been made available. Unsurprisingly, I am therefore inclined to support it.
In his reply to the debate, my noble friend’s argument for being unwilling to consider the amendment rested, I think, on two major planks: on the one hand, the inflexibility resulting from enshrining this sort of requirement in primary legislation; and, on the other, operational confidentiality. These two arguments were backed by a statement of general good intent on transparency. My noble friend will appreciate that I absolutely accept his sincerity on these matters, but operational confidentiality could become an elastic concept, capable of being interpreted to cover a pretty wide range of situations. When backed only by a statement of intent without any statutory teeth, this elasticity could be increased still further.
My concern about civilian casualties arises from two points. The first is the long-term fabric of the society. If women and children are traumatised by violence, it may take a generation to rebuild a stable society and it must be in this country’s interests to establish and maintain stable societies wherever possible. Secondly, and no less importantly, civilian casualties must be one of the best recruiting sergeants for extremists. If I see my village wrecked and my family and community blown apart, I am unlikely to be sympathetic to the people who have caused my world to be turned upside down.
At the core of my concern are the figures given by the noble Baroness about the discrepancy between what Airwars has said about coalition casualties, excluding the Russian casualties, of which I think there are a great deal more—some 3,000 or more. This leads me to believe that somewhere something must be going wrong. Airwars has got its figures wrong, or the coalition members are looking the other way, or the procedures for identifying and recording civilian casualties are faulty. This country, which has now carried out some 600 air strikes in Iraq and Syria and flown more than 2,000 combat missions against Daesh, should surely have a keen interest in ensuring that the truth is established and publicised. Our international reputation demands no less. This amendment, if accepted, would help in that process.
I conclude by saying that I hope my noble friend will forgive me if I gently chide his department. As a result of the issues raised in that earlier debate in Grand Committee, which I referred to, which are also the raw material of our discussion this evening, I wrote to him raising a series of specific questions. My letter was dated 15 March, and I am afraid that I have yet to receive a reply. Will he be prepared to act as the man from Dyno-Rod? If so, I would be extraordinarily grateful.
Earl Attlee
Before the Minister sits down, he said that we have not caused any civilian casualties in Iraq. I take it that he is referring to current operations and not Operation Telic.