Armed Forces Bill

Lord Dannatt Excerpts
Moved by
48: After Clause 18, insert the following new Clause—
“Mental health support
(1) A Minister of the Crown must make provision for additional mental health support for serving Armed Forces personnel, including but not limited to targeted support for serving Armed Forces personnel who have been affected by the United Kingdom’s withdrawal and Taliban takeover in Afghanistan in 2021.(2) This support should aim to improve mental health treatment provided to Armed Forces personnel through the Defence Medical Services, Department of Community Mental Health, the Veterans Mental Health and Wellbeing Service, and the Veterans and Reserves Mental Health Programme.(3) Progress, monitoring and evaluation of this support must be included in the annual Armed Forces Covenant report.” Member’s explanatory statement
This amendment would provide additional mental health support to serving Armed Forces personnel, including those who have been affected by the UK withdrawal and Taliban takeover in Afghanistan in 2021.
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Lord Dannatt Portrait Lord Dannatt (CB)
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My Lords, in moving Amendment 48 I will speak also to Amendment 66A, both of which stand in my name and those of other noble and noble and gallant Lords.

I will address Amendment 66A first. Noble Lords will recall that a very similar amendment was tabled and debated during the passage of the recent overseas operations Bill in the previous Session of Parliament. Then and now, the amendment seeks to require the Ministry of Defence to identify a new duty of care to create a new standard for policy, services and training in relation to legal, pastoral and mental health support provided to service personnel, and to include a duty of care update in the Armed Forces covenant annual report.

Noble Lords will recall that our House divided twice on this issue, but the measure was overturned in the other place. In the interests of not losing the whole overseas operations Bill, the amendment was not pressed a final time. In concluding our previous debate on this subject, the Minister stated that perhaps the Armed Forces Bill was

“a more appropriate mechanism for any discussion of the wider duty of care owed to our people.”—[Official Report, 13/4/21; col. 1257.]

It is perhaps therefore no surprise that I am returning to this topic now, although I do not want to take undue time by rehearsing all the arguments made in our previous debate, the majority of which still stand.

That said, I am very aware that the Ministry of Defence has been working hard on duty of care related issues in recent months and I am sure that many serving personnel will already be benefiting from that work. However, the Minister for Defence Personnel and Veterans in the other place, during a debate on the duty of care amendment in the context of the overseas operations Bill, said that he wished to ensure that our care provided was at a gold standard. So I would be very grateful if the noble Baroness the Minister could update your Lordships on progress towards reaching this gold standard.

The initial impetus for Amendment 48 came in the aftermath of Operation Pitting as the final withdrawal from Afghanistan took place—but Op Pitting was only the most recent episode in a long series of operational settings that have put pressure on the mental health of our servicepeople. As with the duty of care issue, I am aware that the Ministry of Defence has been working hard on mental health matters. Nevertheless, I ask whether the Government’s recent mental health MoT announcement will include specialist support for personnel who have been affected by the withdrawal from Afghanistan. Indeed, could the Minister comment on what specialist mental health support has been offered to personnel involved in Operation Pitting?

Among the welcome recent initiatives, in October the Government announced the new annual mental fitness brief for UK Armed Forces. This is to be welcomed. The press release said it would be:

“Available on Defence’s internal learning platform”.


Can the Minister confirm whether face-to-face support will also be offered as part of this?

Very sadly, the tragic end of the mental health spectrum is the death by suicide of both serving and veteran members of the Armed Forces. In October the Armed Forces Minister said that the Office for Veterans’ Affairs had looked at how the frequency of suicide within the veteran community could best be measured and had identified a robust methodology. Can the noble Baroness explain this new methodology today? What frequency rate has been identified?

Furthermore, I was informed by the previous Veterans Minister that a new study was being undertaken to identify the rate of suicides among serving and veteran members of the Armed Forces. Previously, studies have been based on data from the first Gulf War and the Balkans, but the intensity of recent campaigns more than justified a new study. Can the noble Baroness say whether that new study has been completed? If so, what did it reveal? I am not alone in believing that recent operations have led to a tragic upturn in the suicide rate.

While commending the recent improvements in mental health provision, I believe that more can be done. I look forward to hearing the noble Baroness’s response later. I beg to move.

Baroness Brinton Portrait Baroness Brinton (LD) [V]
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My Lords, I have added my name to Amendment 48. As we heard from the noble Lord, Lord Dannatt, it aims to improve mental health services and to provide additional support for serving personnel, particularly those affected by the United Kingdom’s withdrawal and the Taliban takeover in Afghanistan this year. I also support the other two amendments in this group, Amendments 60 and 66A.

At Second Reading I highlighted Operation Courage, a partnership between the NHS and Combat Stress and other mental health charities, whether Armed Forces-specific charities or local or specific mental health charities. In principle, Op Courage is a really good example of how mental health services for current serving personnel or veterans should be able to provide a strong, signposted short cut to mental health services when and where they are needed.

Combat Stress reports that during August it saw a doubling of calls to its 24/7 helpline. This was on top of already struggling to afford to offer its specialist treatment to around 1,600 veterans with complex mental health needs annually. It estimates that there are at least double that number out there who Combat Stress cannot afford to support.

As a charity, Combat Stress is currently 75% dependent on voluntary donations and the generosity of the public. I think we all know that donations to charities have significantly reduced during the pandemic. I have no doubt that with extra resources it and the other specialist mental health charities can deliver the services needed, because they understand the specific pressures facing serving personnel and the traumas that too many have to learn to live with, both during and after their terms of service.

Leo Docherty MP wrote to all MPs and Peers on 24 September, setting out the support available for service personnel and veterans, their families and the bereaved, should they need it. It was a helpful and informative letter, but it did not refer to when the further £2.7 million will be made available for Op Courage. Does the Minister have that detail available? Is it for spending in a particular period, or does it extend over more than one financial year?

The letter from Leo Docherty did not mention one welcome intervention in recent years: the training of mental health first-aiders in our Armed Forces. The mental health first-aid charity MHFA England says:

“In 2015/16, 3.2% of UK armed forces personnel were assessed with a mental health disorder—over 6,000 people. Many more go undiagnosed and untreated.”


When I have talked to service personnel who have become mental health first-aiders since their return from deployment in Afghanistan, I have heard of how the training that they received enabled them to recognise the warning signs this summer in those they currently serve with, as well as past comrades. One soldier told me that, in August, the community of personnel was able to come together on social media to support and encourage those reliving tough memories or, worse, flare-ups of PTSD. Because of their mental health first-aid training, they were able to help these colleagues to access phone lines—for example, to Combat Stress and other organisations.

How many Armed Forces mental health first-aiders are now in place? Will the extra funding announced in September include training for more mental health first-aiders in the future? Also, can the Minister explain how Op Smart, which was designed to develop mental resilience across personnel in the Armed Forces, sits with Op Courage? Op Smart is much to be welcomed, and is critical to personnel becoming not just self-aware but aware when colleagues may be facing problems. How is Op Smart, and specifically the mental health first-aider programme, funded? The last part of Amendment 48 talks about collecting data. It would be very beneficial to see data on all these issues, including, as the noble Lord, Lord Dannatt, said, on suicide. Can we find such data now? If not, will it be collected and, as the amendment says, included in the annual covenant report?

I return to the extra £2.7 million of funding. Many current and former service personnel who served in Afghanistan and elsewhere, and are currently reliving their traumas, need to access NHS mental health services, including crisis care, right now. Unsurprisingly, these services are facing extraordinary pressure already. The NHS Providers activity trackers show that, for October 2021, referrals remain 10% higher than pre-pandemic levels, with many people having to wait significantly longer than the 18-week target time for their first contact.

In July, NHS England proposed setting new mental health access service standards, working in conjunction with Mind, the mental health charity, and Rethink Mental Illness. The new urgent care proposals would mean that community mental health crisis teams could reach patients within 24 hours of referral. The other key target for mental health liaison teams linked with A&E departments would also be rolled out across the rest of England. Detail on the actual level of funding to deliver this new target is still awaited. For this Bill, I am particularly interested in how all this will fit in with Op Courage. Perhaps the Minister can help me; if she does not have that information at her fingertips, could she write to me afterwards?

This amendment seeks urgent, extra, specific support for Op Courage—and, I hope, for Op Smart too—to ensure that all those people who are serving, or have served, their country do not fall through the net when they need mental health services.

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Finally, the right reverend Prelate the Bishop of St Albans has written to me. I read the letter with care but have not had time to respond to it. I thank him for his committed interest in these matters, and I undertake to respond to his letter. I hope that, following these assurances, the right reverend Prelate will agree to withdraw his amendment.
Lord Dannatt Portrait Lord Dannatt (CB)
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My Lords, first, I thank all noble Lords who have taken part in this debate. We have discussed these matters for one hour and 35 minutes, which is much longer than I anticipated we would, but it is very good that we have had a tremendous number of points exercised. I also congratulate the House staff on grouping these amendments so cleverly. Amendments 48, 60 and 66A have come together in an extremely powerful fashion to underline the concern that many of us have about some of these issues.

I particularly thank the Minister for her most comprehensive answers to all the points made. It is true that part of the thinking behind the amendments we have discussed this afternoon was to invite her to give a comprehensive statement of where the department thinks that it is. I am grateful for her extensive, exhaustive and informative account of the many improvements and changes that the department has been making. I refer back to my opening remarks, when I paid credit to the Ministry of Defence for a number of the changes that have occurred in recent times. We all know that much progress has to be made—much has been made but, in many of these areas, much more has to be made.

In closing, I will make one comment. On two or three occasions, we have looked at data. It has been asserted that the Ministry of Defence does not find any oddity between the service population and the general population. I find that quite difficult to accept. A number of pieces of evidence have been alluded to during the course of this debate indicating that perhaps the Ministry of Defence’s data is not all that it should be, and perhaps there is an element of understanding what you want to understand as opposed to what the reality actually is.

I point particularly to suicide, which I raised and discussed 18 months ago with Johnny Mercer MP, then the Veterans Minister. He assured me that two investigations were going on, comparing the incidence of suicide arising from Iraq and Afghanistan to the historic data of the first Gulf War and the Balkans. I was promised that this information would be available. I am now told that there is another study, which will report in spring 2022. Asking questions is a good thing but we also need some answers because, when we have them, we have a factual base, and we can then start to build some better policy. I make that comment as an aside, and I thank the Minister for her comprehensive updating of your Lordships about where we have got to.

At the present moment, I am content to withdraw Amendment 48 and not to move Amendment 66A. I should like to analyse, as others will, the information that has been given this afternoon and see where we might go in the context of Report.

Amendment 48 withdrawn.
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Viscount Brookeborough Portrait Viscount Brookeborough (CB)
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My Lords, I rise to ask for some clarification from the Minister. On the first day of Committee I mentioned, perhaps in a slightly inappropriate place, British citizenship for Commonwealth soldiers. One of the tasks of a lord-lieutenant is to be the Queen’s representative at citizenship ceremonies. On one occasion a soldier from the Rifles, who was from the Caribbean, came up. When I asked him what he did, he said very quietly, because we were in Northern Ireland and one is sensitive about that, “I’m in the Army”. I would like clarification on what the noble Lord, Lord Lancaster, has just said. I understood him to say that they could not apply for citizenship while they were serving. In that case, how was this soldier, who was not a Gurkha, able to apply during that time?

Also, previous clauses of this Bill cited “due regard” by the authorities—not the Government but other statutory bodies—in housing, mental welfare and whatever. How is it that we do not appear to have due regard for Commonwealth soldiers, some of whom have done multiple tours in Iraq, Afghanistan and, indeed, Northern Ireland? I understand from earlier comments by the Minister that “due regard” in the whole Bill does not apply to central government, so the Government seem to have sidestepped this, in more ways than one.

We were talking about this a few minutes ago. Where is this moral responsibility of at least “due regard”? What is the process for a serving soldier from a Commonwealth country who is not a British citizen to apply for British citizenship? Do they have to go through the same hoop and process, with significant cost, as somebody who may be a doctor or nurse from the Philippines? These are people from all over the world, including China and Russia—I have carried out this ceremony for citizens of all sorts of countries. I would just like the Minister to explain where we are putting our soldiers. We do not seem to have the moral and caring attitude that, as a country, we should have to those who have served us so well.

Lord Dannatt Portrait Lord Dannatt (CB)
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My Lords, I support both these amendments in regard to those affected in Hong Kong, about whom the noble and gallant Lord, Lord Craig of Radley, spoke most eloquently, and Gurkha soldiers who are Nepalese citizens. It is also worth putting in the widest possible context that we have a large component of the British Armed Forces from not only Nepal or Hong Kong, as already mentioned, but other Commonwealth countries. When I had the privilege of being Chief of the General Staff, the make-up of the British Army included people from 41 different nationalities. In fact, I had under my command more Fijian soldiers than Frank Bainimarama, the head of the Fijian Army, had in his own army. This is not a niche problem but a significant issue which we have to address, recognise and deal properly with.

We have to do so now in the context of the withdrawal from Afghanistan. In that melee of people coming back on the various flights during August were many members of the Afghan national army who, one way or another, have found their way back here. As part of Operation Warm Welcome, they will now be given significant residential rights in this country, over and above the foreign and Commonwealth soldiers who have stood shoulder to shoulder with us and fought in many campaigns. This is an anomaly and it is bizarre. We have to resolve it, so I put that issue back on the table. Earlier this afternoon, unintended consequences were mentioned in another context; this is an unintended consequence of a generous gesture to Afghans but, I am afraid, it makes a mockery of our policy with regard to foreign and Commonwealth individuals, including those from Nepal and Hong Kong.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, I support both amendments. I added my name to Amendment 49; it was merely an omission not to have added my name to Amendment 63 since both amendments, as we have heard, are important. At Second Reading, I spoke about the situation with the Gurkhas; my only experience of them is visiting once while on the Armed Forces Parliamentary Scheme, so I have no interest to declare in the way that the noble Lord, Lord Lancaster, has.

However, like other noble Lords, I am deeply aware of the importance of the Gurkhas and the service they give. We need to think what signals we send if we say, “You can work with us; you can put your life on the line and die for us. But if you wish to have indefinite leave to remain, we will charge you huge sums of money, as if you were simply coming as a third-country national with no relationship to our country.” People who have been serving with us, such as the Gurkhas and Commonwealth citizens working within our Armed Forces, should be given the opportunity to have indefinite leave to remain on an at-cost basis, as we ourselves would when we sign up for a passport. We do not get our passports free but we pay the cost.

Earlier on, the Minister suggested that the MoD has certain duties, but this is not currently a duty. The MoD and the Home Office could do something relatively straightforward about this and make a huge difference in the message that we send to service personnel from Commonwealth countries.

Finally, I add a word in support of the comments of the noble and gallant Lord, Lord Craig of Radley, about Hong Kong. This is partly because my noble friend Lord Alton of Liverpool was hoping to speak on this amendment in support of the service personnel from Hong Kong; he sat through the first group and most of our next debate but has had to leave for another meeting. It is very important that we think again about the commitments to Hong Kong. As the noble Lord, Lord Dannatt, said, it is slightly an issue of history and timing that the withdrawal from Afghanistan has happened in the middle of the passage of the Bill, and it sends certain messages. However, that withdrawal and the situation in Hong Kong again mean that we have certain duties. It would behove the MoD and the Home Office to look generously also on service personnel from Hong Kong.

Baroness Goldie Portrait Baroness Goldie (Con)
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My Lords, I thank your Lordships for their contributions on an issue that might look fairly contained but is, none the less, important. I will look first at Amendment 49, on fees for indefinite leave to remain, which was moved by the noble Lord, Lord Coaker, and supported by the noble and gallant Lord, Lord Craig of Radley, the noble Lord, Lord Dannatt, and the noble Baroness, Lady Smith of Newnham. I make clear immediately that the Government highly value the service of all members of the Armed Forces, including Commonwealth nationals, and Gurkhas from Nepal, who have a long and distinguished history of service to the UK, both here and overseas.

Your Lordships will be aware that the Home Office, not the MoD, has a specific set of Immigration Rules for Armed Forces personnel and their dependants, the Appendix Armed Forces. Under these rules, non-UK service personnel enlisted in the regular Armed Forces, including Commonwealth citizens, and Gurkhas from Nepal, are granted an exemption from immigration status for the duration of their service to allow them to come and go without restriction. They are therefore free from any requirements to make visa applications or pay any fees while they serve, unlike almost every other category of migrant coming to work in the UK.

Non-UK service personnel who have served at least four years or been medically discharged as a result of their service can choose to settle in the UK after their service and pay the relevant fee. As my noble friend Lord Lancaster indicated, the time before discharge when such settlement applications can be submitted has been extended this year from 10 to 18 weeks. Those applying for themselves do not have to meet an income requirement, be sponsored by an employer or meet any requirements regarding their skills or knowledge of the English language or of life in the UK. That again puts them in a favourable position compared with other migrants wishing to settle here.

The noble Lord, Lord Dannatt, asked specifically about the situation of Afghan interpreters and sought to draw an analogy between them and the group that we are discussing under these amendments. ARAP and the ex-gratia scheme before it were set up in recognition of something very simple: the serious and immediate danger locally engaged staff would face, were they to remain in Afghanistan. The unique and perilous situation that this group of Afghans faced, because of their support for Her Majesty’s Government, required a bespoke solution to meet that immediate and extreme need.

I can tell the noble Viscount, Lord Brookeborough, that specific Immigration Rules are already in place for our non-UK service personnel and veterans, as I have outlined, to ensure that those who choose to can remain in the UK after service. Some choose to take up that offer, while others return to their original nation, but that personal choice is not overshadowed by risk of persecution or even death, such as would be faced by Afghan citizens if they returned to Afghanistan.

Lord Dannatt Portrait Lord Dannatt (CB)
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I hope the noble Baroness will forgive me for interrupting. I much appreciate her point, but my point was not in this instance to do with interpreters. I am very grateful for the work of the Ministry of Defence in enabling many of our interpreters to come to this country, and more is still to be done. I was referring to members of the Afghan National Army who have found their way back to this country through the evacuation flights. As soldiers of another nation, they are going to be accorded better rights of residence in this country than foreign and Commonwealth soldiers who have served as members of the British Armed Forces.

Baroness Goldie Portrait Baroness Goldie (Con)
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I referred to locally employed citizens in Afghanistan. It may be that some members of the Afghan army felt at risk and that their lives were imperilled, and therefore sought to return to this country. We would bring them under the overall umbrella of help we felt it necessary to provide people who came here because they feared for their lives—and they were people with whom we had a relationship. So I suggest that there is not a complete analogy in the noble Lord’s description.

We recognise that settlement fees place a financial burden on non-UK serving personnel wishing to remain in the UK after their discharge, and the strength of feeling from parliamentarians, service charities and the public about this issue. As has already been indicated, the Ministry of Defence, together with the Home Office, ran a public consultation between 26 May and 7 July 2021 regarding a policy proposal to waive settlement fees for non-UK service personnel. The noble Lord, Lord Tunnicliffe, asked when we will get an outcome from that. I can say to him that 6,398 responses were received. These are having to be sifted through. The results are currently being considered and the Government will publish their response in due course. The Government are aware that there is a certain anticipation in the outside world to know their response.

Armed Forces Bill

Lord Dannatt Excerpts
Lord Dannatt Portrait Lord Dannatt (CB)
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My Lords, it is now 10 years since the informal military covenant developed by the Army was converted into the Armed Forces covenant for the benefit of all three Armed Forces, and incorporated into the Armed Forces Act 2011. At the time, its incorporation was seen by some as something of a politically expedient device by the then Cameron Government because it lacked bite. I am therefore very pleased that this Armed Forces Bill provides many of the teeth that were missing, especially in the areas of housing, education and healthcare.

The well-being of our Armed Forces personnel once again came into sharp focus as we witnessed the extraordinary efforts of our service men and women in and around Kabul Airport last month. As Brigadier James Martin, commanding 16 Air Assault Brigade, said a few days ago, British soldiers cannot unsee the horrors of Kabul and will need help to recover from that deployment, which he described as “harrowing”. I would be grateful if the Minister would reassure the House that such help is being made available. I am considering an amendment to the Bill to ensure that such help is indeed forthcoming in full measure. I see this as an extension of the duty of care to our service- people—a topic debated and endorsed by your Lordships’ House earlier this year in the context of the overseas operations Bill but which was rejected by the government majority in the other place.

The non-combatant evacuation operation at Kabul raises other issues pertinent to the Bill. Given that one of the stated aims of the operation was to assist the evacuation of interpreters and other locally engaged Afghan civilians who had helped the British over the past 20 years, can the Minister provide any information about how many interpreters we have been able to bring to this country? My information is that we directly employed some 2,850 interpreters up until 2013 when the service was contractorised, but that only 440 interpreters benefited from the ex gratia scheme until the introduction of the Afghan relocation and assistance policy in April this year. My concern, which I believe is shared by many of the 45 senior retired officers who signed an open letter to the Government in July, is that many of the other 2,400 interpreters have not yet been brought to this country. Can the Minister provide an up-to-date figure on how many of those 2,400 interpreters were brought here between April and mid-August? Presumably all those disembarking from RAF evacuation flights were asked who they were and what they did to qualify.

I am sure that noble Lords will want to thank local councils around the country for making homes and education available to these Afghan people, and I also congratulate charities, such as Help for Heroes, which are agreeing to treat Afghans who stood shoulder to shoulder with us in the same way that they are supporting British veterans of recent conflicts. Among those who have recently arrived in this country are former members of the Afghan special forces. It has been suggested that some of them might wish to continue to serve in the British Armed Forces. I would welcome that, provided that normal nationality regulations are followed, or perhaps an exception should be made via another amendment to the Bill. Is this something that the Government are considering?

It was heartening to see the way in which the Government pragmatically put aside the rules regarding indefinite leave to remain to aid the resettlement of recently evacuated Afghans. This relaxation of the rules is part of Operation Warm Welcome, which will see individuals who worked for British forces and their families granted indefinite leave to remain in the UK. Unfortunately, this generous treatment is in stark contrast to how we currently treat our foreign and Commonwealth veterans. For them, many of whom will have served in Afghanistan, military service confers no such privilege. Indeed, when those individuals leave HM forces, they are treated the same as any other foreign applicant seeking indefinite leave to remain. Foreign and Commonwealth service personnel also miss out as they cannot apply to bring their families to the UK while serving unless they meet the income threshold, while under the new Afghan schemes the whole family can come notwithstanding income levels. We will therefore shortly face the bizarre situation where veterans of the Afghan National Army arriving here have greater residency rights than some veterans of the British Armed Forces. If we agree with the aspiration that the UK should be the best country in the world in which to be a veteran, we must ensure that we treat our veterans as well as we treat those to whom we give refuge. It is high time we extended the warm welcome to our foreign and Commonwealth veterans. Can the Minister update the House on the Government’s thinking in this regard?

While we are dwelling on anomalies, there are two other groups of veterans who are being disadvantaged. One is the dwindling ranks of servicemen who were excluded from the Armed Forces Pension Scheme 1975. Recently a petition signed by more than 30,000 people was handed to the Government requesting pension equity with those who benefited from the post-1975 scheme. It should be acknowledged that some of those discriminated against served in Northern Ireland, Aden and Borneo. Can the Minister update the House on progress to eradicate the pre/post-1975 pension inequality? Of course, the Northern Ireland veterans are eagerly awaiting the tabling of legislation to terminate the endless questioning of their operations during the Troubles. Are we any nearer to knowing when that legislation will be tabled?

Finally, it will not have escaped noble Lords’ notice that the other group of veterans currently being discriminated against—Gurkha veterans who retired from the British Army before 1997—have been on hunger strike outside Downing Street. This is shameful. Successive Governments inevitably carry some responsibility for the actions of their predecessors, and although many approved of the popular decision some 10 years ago to allow Gurkhas who had retired before 1997 to have residency rights in the UK, doing so without an uplift to their pension was shameful. A solution to this entirely predictable problem must be found before a Gurkha veteran dies on our streets. Does the Minister have an update on the resolution of this issue? The Armed Forces covenant is for all serving and veteran personnel, including minority groups whose voices often do not get heard.

Moved by
Lord Dannatt Portrait Lord Dannatt
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At end insert “but do propose Amendment 5D in lieu—

5D: After Clause 12, insert the following new Clause—
“Duty of care to service personnel
(1) The Secretary of State must establish a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations, as defined in section 1(6).
(2) The Secretary of State must lay a copy of this standard before Parliament within six months of the date on which this Act is passed.
(3) In subsection (1) “service personnel” means—
(a) members of the regular forces and the reserve forces;
(b) members of British overseas territory forces who are subject to service law;
(c) former members of any of Her Majesty’s forces who are ordinarily resident in the United Kingdom; and
(d) where relevant, family members of any person meeting the definition within paragraph (a), (b) or (c).
(4) In subsection (1) “duty of care” means both the legal and moral obligation of the Ministry of Defence to ensure the wellbeing of service personnel.
(5) None of the provisions of this section may be used to alter the principle of combat immunity.””
Lord Dannatt Portrait Lord Dannatt (CB) [V]
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My Lords, this is now the fifth time that I have spoken in favour of an amendment to the Bill inviting the Secretary of State for Defence to lay down a duty of care standard to protect the legal, pastoral and mental health support available to serving and veteran members of our Armed Forces involved in investigations or litigation arising from overseas operations.

I continue to be most grateful to the Minister for her courteous but determined rejection of the arguments in favour of such a duty of care standard that have been advanced by many other noble Lords and by me. I am also most grateful for the cross-party, cross-Bench and tri-service support that this amendment has attracted. I have also most carefully read the Hansard reports of the debates on this amendment in the other place. I note support there for the amendment from right honourable and honourable Members from all the main political parties.

Given that the Minister and I are now not going to agree on this issue—I am grateful for her unintended but helpful preview earlier of her arguments in anticipation of this debate—I do not wish to detain your Lordships’ House unduly on this matter this evening. I have previously argued that this is a matter of principle: of the Ministry of Defence showing itself to be a good employer by standing solidly behind its people. I have rejected arguments that a duty of care standard would create a dangerous employment precedent and that it would itself give grounds for serving and veteran personnel to sue the Ministry of Defence.

However, I take away some comfort on behalf of those who are serving or who have served their country in uniform from the commitment by the Government to publish down the chain of command, to serving personnel and out through appropriate means to veteran personnel, a clear statement as to how the Bill when enacted will provide them with a measure of the protection that my amendment sought to put into law. Indeed, I was encouraged to read that in the other place yesterday, the new Minister for Defence People and Veterans, Mr Leo Docherty, said,

“We are aiming for a gold standard and are improving our provision all the time without the requirement for legislation.”—[Official Report, Commons, 27/4/21; col. 287.]


Clearly, there will be no legislation at this time, but I am delighted to hear the pledge of a gold standard. I will not be alone in watching for that gold standard to become manifest.

I will make two final points. First, on a point of principle, it is clearly an appropriate part of our national and political debate about foreign security and defence policy that opinion is often split along party-political lines. However, while that is appropriate, it is not acceptable or appropriate to extend that party division to the treatment of our service men and women and our veterans as people. For our service, on operations overseas and at home, our sworn allegiance is to the Crown and not to the Government of the day. Yes, of course, our elected Governments may well decree that such an operation is in the national interest, and members of the Armed Forces get on and do their duty, often laying their lives on the line on behalf of the nation in so doing. But party politics should not play any part in the way those personnel are treated as people. It has been thoroughly depressing, despite the widespread support for a duty of care standard, that the divisions in your Lordships’ House and in the other place have been along party lines. That is not the way to treat our service people and veterans, who serve the Crown and the people of this country.

Secondly, on a point of opportunity, later in the year the Armed Forces Bill will return to your Lordships’ House, as it does every five years. In the context of further strengthening the Armed Forces covenant, there is an opportunity to look again at issues of the treatment and care of our Armed Forces personnel, serving and veteran. I hope that we will take that opportunity and do so in the spirit of doing the right thing by those people and not just what the party Whips dictate. I believe we owe it to our service personnel to take party politics out of their treatment and care. If we are to seize that opportunity on a point of principle, I believe that difficult and divisive issues arising from operations overseas and in Northern Ireland could be satisfactorily addressed. We must not play party politics with the lives and well-being of those whose duty is to protect the security and interests of our country. I do not regard this matter as closed satisfactorily.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD) [V]
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The noble Lord, Lord Dannatt, has exhorted us not to play party politics with this issue, and I certainly have no wish to do so. Our duties to our service personnel are crucial. It is absolutely right that the MoD and, by extension, the Government, should be a good employer, and I agree with the noble Lord that that should be a matter of principle.

The issues that the noble Lord has sought to put on the agenda and which we have debated on several occasions now, to ensure legal, pastoral and mental health support for service personnel, are crucial. However, the amendment to the Bill was for a duty of care in very limited circumstance: that for service personnel involved in investigations or litigation arising from overseas operations. That is clearly appropriate within the confines of a narrowly defined Bill. However, the issues are much wider. I am therefore grateful that the noble Lord is not pressing this amendment to a Division this evening, because it would be wise to be able to have a fuller and well-informed debate on a duty of care to be considered in the context of the Armed Forces Bill.

Whether that then takes a statutory form will depend on negotiations and, as the noble Lord suggested, not necessarily party-political discussions, but an understanding of the likely consequences, intended and unintended, of such a duty of care. From these Benches, we absolutely agree with the noble Lord that it is vital that the MoD provides legal, pastoral, and mental health support for service personnel. We must get this issue right, and clearly it is appropriate that we do not divide the House again this evening, but that these issues come back in the next Session and that we keep raising them with the Minister.

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Lord Dannatt Portrait Lord Dannatt (CB) [V]
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My Lords, I once again thank all noble Lords who have spoken or voted in support of my amendment on this important issue of a duty of care standard. It remains clear to me from what I have just heard from the Minister that there is no movement in the position taken by the Government on this. However, picking up a reference from the noble Lord, Lord Tunnicliffe, there must be no more Bob Campbells.

I am aware that this Session is nearing its end and that there is therefore a danger that, if I press this amendment to a further Division tonight, the Overseas Operations Bill, with its other important amendments now included, might be lost. For that purely practical and procedural reason—and recognising the moment for a tactical, if not a strategic, withdrawal—I will not seek to divide your Lordships’ House again on this amendment. Instead, I will watch for the promulgation of the gold standard of care for our serving and veteran personnel and will, in the spirit of the Minister’s comments just now, write to her to ask for an update on the development of that gold standard, and maintain the dialogue. Moreover, I note that we may return to this issue on the Armed Forces Bill later this year—in an open and frank way, I hope, and ideally not constrained by party politics. I beg leave to withdraw Motion B1.

Motion B1 withdrawn.
Moved by
Lord Dannatt Portrait Lord Dannatt
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As an amendment to Motion E, at end insert “but do propose Amendment 5B in lieu—

5B: After Clause 12, insert the following new Clause—
“Duty of care to service personnel
(1) The Secretary of State must establish a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations, as defined in subsection (6) of section 1.
(2) The Secretary of State must lay a copy of this standard before Parliament within six months of the date on which this Act is passed.
(3) The Secretary of State must thereafter in each calendar year—
(a) prepare a duty of care update, and
(b) include the update in the Armed Forces Covenant annual report when it is laid before Parliament.
(4) The duty of care update is a review about the continuous process and improvement to meet the duty of care standard established in subsection (1), in particular in relation to incidents arising from overseas operations of—
(a) litigation and investigations brought against service personnel for allegations of criminal misconduct and wrongdoing;
(b) judicial reviews and inquiries into allegations of misconduct by service personnel;
(c) such other related fields as the Secretary of State may determine.
(5) In subsection (1) “service personnel” means—
(a) members of the regular forces and the reserve forces;
(b) members of British overseas territory forces who are subject to service law;
(c) former members of any of Her Majesty’s forces who are ordinarily resident in the United Kingdom; and
(d) where relevant, family members of any person meeting the definition within paragraph (a), (b) or (c).
(6) In subsection (1) “duty of care” means both the legal and moral obligation of the Ministry of Defence to ensure the wellbeing of service personnel.
(7) None of the provisions of this section may be used to alter the principle of combat immunity.””
Lord Dannatt Portrait Lord Dannatt (CB) [V]
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My Lords, it is with predictable disappointment, but no less determination, that I return to commending to your Lordships the amendment in my name to establish a duty of care standard. I draw your Lordships’ attention to the fact that in Committee and on Report this amendment stood in the names of the noble and gallant Lords, Lord Boyce and Lord Stirrup, thus reflecting support from former Chiefs of Staff of all three armed services.

It is fair to say that this overseas operations Bill has had something of a troubled passage through Parliament. It is extraordinary to note that the Minister piloting the Bill in the other place has now left his appointment as the Minister for Defence People and Veterans. What that says about smooth, joined-up government is a matter for speculation.

Notwithstanding the welcome concessions made by the Government this afternoon pertaining to our obligations under international law and Britain’s reputation as an upholder of a rules-based international community, the Bill is also about the wider interests of the people Mr Mercer in the other place sought to champion—namely, our defence people and veterans. The serving and veteran communities have been looking to the Bill to provide better protection from repeated, extended and vexatious investigations and possible prosecutions following their service overseas on deployed operations.

No one suggests for a moment that anyone is above the law. Indeed, soldiers take up arms only to protect the law, but when this new Bill passes into law it will singularly fail to provide the protection that serving and veteran members of the Armed Forces believe it should provide. For this reason, the duty of care standard amendment has been tabled to improve this Bill and enable it to achieve one of its original objectives. That it has been consistently opposed by government Ministers and the government majority in the other place is both puzzling and disappointing.

If the Government argue that the Bill as drafted would give serving and veteran members of the Armed Forces the protection that they seek and do not accept my amendment, will they commit to issuing a clear statement down the chain of command and out to the various veterans’ organisations as to how the Bill benefits and protects them? Those who are serving or have served have the right to believe that their employer will protect their interests. The Government have brought forward or implied various reasons why they will not support this duty of care standard amendment. It has been suggested that such an amendment is not necessary, in which case I repeat my request for a clear statement of benefit to be briefed to serving and veteran members of the Armed Forces.

It has been suggested that setting out a duty of care standard will invite further litigation from Armed Forces personnel. As I have argued previously, this is an empty argument, as in the amendment the Ministry of Defence has the opportunity to draw up its own statement of a duty of care standard, then act within it. That sounds to me like sensible, good practice to me—not something to be fearful of.

It has also been suggested to me that setting out a duty of care standard would create an unfortunate precedent. That argument misses the point as well. The inclusion of an Armed Forces covenant in the Armed Forces Act 2011 illustrates that the Armed Forces are acknowledged to be in a different category of employment from civilian occupations. The Armed Forces covenant was crafted and designed to recognise and protect that difference, so the argument of creating a precedent is also an empty one. The Armed Forces are in an employment category of their own.

Finally, I believe I have every right to be fearful. If the Government are failing to protect their employees from repeated, extended and vexatious investigations arising from overseas operations, what chance do Northern Ireland veterans have of gaining similar protection? I am not holding my breath, despite often-repeated statements that legislation would be introduced to address that problem too. I beg to move Motion E1 as an amendment to Motion E.

Baroness Garden of Frognal Portrait The Deputy Speaker (Baroness Garden of Frognal) (LD)
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I have not received any requests from unlisted speakers. Does anyone in the Chamber wish to speak? No. I call the noble Baroness, Lady Smith of Newnham.

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I have paid tribute to the noble Lord, Lord Dannatt, because his interest in this has been enduring and his pursuit of his objective resolute and determined, but I am afraid that the Government are not persuaded by his arguments. I therefore ask the noble Lord to withdraw his Motion.
Lord Dannatt Portrait Lord Dannatt (CB) [V]
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My Lords, first, I thank the Minister for her thoughtful and measured response to this short debate. She made a number of entirely legitimate and fair points. She asked whether there could be a statement of detail on the concerns that a duty of care standard would meet, but I do not think that this Chamber is the place to get into a detailed drafting session. The purpose of the amendment is a purpose in principle to establish the desirability of a statement on a duty of care standard; this should stand on its own.

Going beyond that, the drafting of the amendment is such that the initiative remains with the Ministry of Defence to draft the duty of care standard in the way that it wishes. This also addresses the legal question that the Minister posed. The answer is that, if the Ministry of Defence draws up its duty of care standard in a careful and thoughtful way then continues to operate within it, the unintended consequences of serving or former servicepeople litigating against the Ministry of Defence represent an empty argument, as I argued before.

However, I am grateful to the Minister for picking up the point that, if there are beneficial aspects to the Bill, they are extracted and put in an information format so that they can be briefed down the chain of command, as I asked, and to veterans’ organisations. As much as I welcome that move, why would the Ministry of Defence not do that at the conclusion of the Bill? Anyway, I am glad that the concession has been made and that that will happen.

Nevertheless, I believe that the case for setting out a clear duty of care standard remains extremely strong. There have been several references to the former Minister for Defence People and Veterans; as I understand it, he is currently sitting in the public gallery of a court in Belfast to show solidarity with two former servicemen who are being tried some 40 or 50 years after events took place. I salute Mr Mercer for doing that and continuing to champion veterans’ causes. Veterans look to him for leadership; they also look to a number of us former service chiefs for leadership.

I rise to that challenge to continue to provide leadership to the veteran community. I am therefore disappointed that the Government do not accept the need for the setting out of a detailed duty of care standard. I continue to press this issue, and therefore wish once again to test the opinion of the House and divide on this matter.

Lord Dannatt Portrait Lord Dannatt (CB) [V]
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My Lords, I begin by thanking all those associated with this Bill, especially the noble Baroness, Lady Goldie, the Minister, for patiently attending to the points that we have raised in Committee and on Report. I would also like to echo the words of the noble Lord, Tunnicliffe, and the noble Baroness, Lady Smith, for the support that their Benches have given to many of the amendments to this Bill. I would also like to record my appreciation of the noble and gallant Lords, Lord Boyce and Lord Stirrup, for joining me in speaking on behalf of the Army, Navy and Royal Air Force in trying to ensure that, in carrying forward this Bill, the best interests of our service people, both serving and veteran, are attended to.

I would like to congratulate the Government on standing by their manifesto promise to bring forward a Bill of this nature. I believe that the Bill, now amended going forth from your Lordships’ House back to the other place, represents a far more effective way of achieving that manifesto commitment of the Government. Not surprisingly, I would urge that the amendments, particularly on the duty of care, are retained within this Bill and that this Bill now passes through the other place without further reverse amendment. Should a number of our well-intentioned amendments be reversed by the other place, we will have the opportunity of the Armed Forces Bill coming forward quite shortly. I have no doubt that many of the amendments that we have tried to put into this Bill will receive further attention in the Armed Forces Bill, not least of which is the issue of the duty of care. The Ministry of Defence as a caring employer has, indeed, a duty to ensure that they are seen through.

Once again, I thank all those involved, particularly those speakers from the Cross Benches. I hope very much that this Bill now passes in the other place without undue reverse amendment.

Moved by
14: After Clause 12, insert the following new Clause—
“Duty of care to service personnel
(1) The Secretary of State must establish a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations, as defined in subsection (6) of section 1.(2) The Secretary of State must lay a copy of this standard before Parliament within six months of the date on which this Act is passed.(3) The Secretary of State must thereafter in each calendar year— (a) prepare a duty of care update, and(b) include the update in the Armed Forces Covenant annual report when it is laid before Parliament.(4) The duty of care update is a review about the continuous process and improvement to meet the duty of care standard established in subsection (1), in particular in relation to incidents arising from overseas operations of—(a) litigation and investigations brought against service personnel for allegations of criminal misconduct and wrongdoing;(b) civil litigation brought by service personnel against the Ministry of Defence for negligence and personal injury;(c) judicial reviews and inquiries into allegations of misconduct by service personnel;(d) such other related fields as the Secretary of State may determine.(5) In preparing a duty of care update the Secretary of State must have regard to, and publish relevant data in relation to (in respect of overseas operations)—(a) the adequacy of legal, welfare and mental health support services provided to service personnel who are accused of crimes;(b) complaints made by service personnel or their legal representation when in the process of bringing or attempting to bring civil claims against the Ministry of Defence for negligence and personal injury;(c) complaints made by service personnel or their legal representation when in the process of investigation or litigation for an accusation of misconduct;(d) meeting national standards of care and safeguarding for families of service personnel, where relevant.(6) In subsection (1) “service personnel” means—(a) members of the regular forces and the reserve forces;(b) members of British overseas territory forces who are subject to service law;(c) former members of any of Her Majesty’s forces who are ordinarily resident in the United Kingdom; and(d) where relevant, family members of any person meeting the definition within paragraph (a), (b) or (c).(7) In subsection (1) “duty of care” means both the legal and moral obligation of the Ministry of Defence to ensure the wellbeing of service personnel.(8) None of the provisions of this section may be used to alter the principle of combat immunity.”Member’s explanatory statement
This new Clause will require the Ministry of Defence to identify a new duty of care to create a new standard for policy, services and training in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations, and to include a duty of care update in the Armed Forces Covenant Annual Report.
Lord Dannatt Portrait Lord Dannatt (CB)
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My Lords, in opening this short debate on Amendment 14, I first thank the noble Baroness the Minister and the Minister for Defence People and Veterans for meeting me and other noble Lords on matters pertaining to this and other amendments. Indeed, I am grateful to the noble Baroness for meeting me twice on these matters.

It is perhaps no surprise that I am of the view that we share common objectives for the Bill, which I hope will become an Act within this parliamentary Session. These common objectives include the better protection of serving and veteran soldiers, sailors, airmen and marines from repeated and extended investigations and unjustified prosecutions arising from their service on behalf of the nation on overseas operations.

We also share the common objective of properly supporting such personnel while they are going through an investigation and prosecution process—after all, when a soldier lays their life on the line at the behest of their employer, I am sure that we can agree that he or she has a right to expect that employer to exercise a proper duty of care towards him or her as they go through any investigative or judicial process.

If we are broadly agreed on the common objective, where we are not yet fully agreed is on the scheme of manoeuvre—the campaign plan, if you like—to reach that common objective, but we are making progress, and many of the constituent parts of a successful plan are beginning to emerge. Amendment 6, which we earlier debated and voted to stand part of the Bill, for the time being at least, is an important and welcome addition to the provision of safeguards into the investigation of allegations relating to overseas operations. Moreover, the Minister has today released a Written Ministerial Statement asserting that the purpose of the Bill is to provide better legal protection to Armed Forces personnel and veterans serving on military operations overseas. The Statement references and underlines a defence instruction and notice whose basic principle is that the department

“is committed to standing behind its people who act reasonably and in good faith in the course of their duties”.

If we are agreed that a good employer will discharge a proper duty of care towards its people, then the pieces of this jigsaw—this campaign plan—are beginning to come together. Amendment 14 would join those parts of the jigsaw into one picture, to bring these hard-fought battles and engagements into line in a comprehensive campaign plan for the benefit of our people in uniform and for those who have worn a uniform in the past.

Defence priorities change; the fortunes of military charities fluctuate; Ministers come and go; but the law does not change. Amendment 14 would bring into law the good ideas and intentions of well-meaning Ministers and officials with whom we are currently united in common cause but who are strangely reluctant to enshrine the fruits of their endeavours in a Bill which will become an Act of Parliament and thus part of our law—a law to protect our people for all time from vexatious investigations and prosecutions.

I have heard an argument that says that if we enshrine a duty of care in law it will present the possibility of creating grounds whereby disaffected parties could take the MoD to court if in their opinion the terms of the legally binding duty of care had not been adhered to, but is that really an honourable or credible argument against creating a duty of care in the first place? Surely in any walk of life, rules and regulations setting out what is and what is not acceptable are a commonplace occurrence. If you act within the rules, all is fine, but if you step outside, then sanctions follow. I am no lawyer, but I am sufficiently aware of the way our civilised society is organised to know that if I step outside the law, whether it is in a transaction on the high street or in my behaviour on a rugby field, I will be sanctioned. Is the Ministry of Defence so frightened that if it establishes a duty of care that passes into law and then it acts outside that law some of its employees might sue it? Surely the correct approach is for the Ministry of Defence to lay down a duty of care within the next six months, as Amendment 14 suggests, and then commit to live within that legally based statement of the duty of care for the benefit and transparency of both the employer and employees. Is that too much to ask? I beg to move.

Lord Hope of Craighead Portrait Lord Hope of Craighead (CB) [V]
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My Lords, I offer my support for this amendment for all the reasons given by my noble friend Lord Dannatt. I thought that it would be right for me as a lawyer to ask myself whether the amendment was asking the Secretary of State to do something that our legal system would find hard to recognise or put into effect. It is a long amendment, full of what no doubt was thought to be necessary detail; but the key words to which I have directed my attention are to be found in proposed new subsection (1), read together with the definition in proposed new subsection (7). They are the words “duty of care”, which are used to define the obligation that is already owed to service personnel, both moral and legal, to ensure their well-being.

There are a number of things that need to be said to explain why the amendment has my support. First, this is a duty of care, not an absolute duty. It sets a standard that the amendment is talking about at the right level. An absolute duty is a duty that must be complied with irrespective of the circumstances. What has been talked about here is a duty to take reasonable care to achieve that standard. It is not driving the Secretary of State to achieve something that cannot be achieved with the exercise of ordinary care.

Secondly, the concept of setting a standard to be applied in addressing the needs of a particular group within our community is not new. It is familiar in the context of healthcare, for example, with regard to the care of the elderly.

Thirdly, and most importantly in view of the point made by my noble friend some moments ago, the method used should not be seen as encouraging a resort to litigation any more than the setting of standards does in healthcare. What is sought is to set a standard of behaviour, not a set of statuary rules. If litigation has to be resorted to, the complaint would be of a failure in a duty to take reasonable care, using the standard simply as setting out the criteria for what that duty required. There is nothing novel in that approach.

The Ministerial Statement that the noble and learned Lord, Lord Mackay of Clashfern, very helpfully read out to us when speaking on amendments in the first group this afternoon is, of course, to be welcomed. I do not for a moment doubt its sincerity, but Ministers come and go, and Ministerial Statements are, I fear, a bit like the Cheshire Cat. This amendment seeks to bring it up to a higher level of formality. Added to that, it seeks to ensure that the matter is kept under continuous review and public scrutiny. All that seems to me to be for the good. Therefore, if the amendment is put to a vote, I will support it.

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In the light of the further information I have made available about these important issues, if the noble Lord, Lord Dannatt, wishes to pursue this further, I ask him to look at the Armed Forces Bill as an appropriate conduit or forum for these discussions. In these circumstances, I urge him to withdraw his amendment.
Lord Dannatt Portrait Lord Dannatt (CB)
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My Lords, I thank all noble Lords who have spoken this evening. I was going to say that it was a short debate but it was a proper-size debate, getting at a number of these issues. I thank the Minister for her thoughtful and comprehensive reply to the points raised and for addressing Amendment 14. She is right that in some ways there is no more than a cigarette paper between us. In my opening remarks, I said that I was pretty clear that we shared a common objective. The current area of disagreement is over how we march towards achieving success on this common objective.

Amendment 14 is about establishing a duty of care standard. I am grateful to the noble Baroness, Lady Chakrabarti, for referring to this as a vital amendment. The noble Baroness, Lady Smith, and the noble Lord, Lord Tunnicliffe, also indicated the support of the Liberal Democrats and the Labour Party. If we believe that we have a common objective in doing the right thing by our serving and veteran personnel, then I fail to see why clearly setting out a duty of care is causing so much difficulty for the Ministry of Defence.

In Committee, there was some discussion about whether this was the right Bill to address these issues. Many of us argued that, if we were to lose this Bill, it could be quite some time before there was another Bill that could address them. I argue strongly that we should maintain this Bill on its passage through Parliament.

Integrated Review: Defence Command Paper

Lord Dannatt Excerpts
Tuesday 23rd March 2021

(4 years, 6 months ago)

Lords Chamber
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Baroness Goldie Portrait Baroness Goldie (Con)
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As the noble Lord is aware, we have a partnership at the moment with our American friends, who provide support to the carrier. That is a matter of merit; it is about alliance, friendship and interoperability, and we should understand that. The Government’s commitment is to increase the fleet size of Lightning beyond the 48 aircraft of which we are aware. I hope that reassures the noble Lord.

Lord Dannatt Portrait Lord Dannatt (CB) [V]
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My Lords, now that the Regular Army is once again to be reduced in size in order to provide additional funds for the defence equipment programme, can the Minister give an idea of the thinking within the Ministry of Defence about increasing the size of the Army should the Government of the day wish to take part in a large operation, such as the two Gulf wars, or an enduring operation, such as those in Iraq and Afghanistan? My concern is that the future may not look how we might wish it to look; however, history has a habit of repeating itself.

Moved by
31: After Clause 12, insert the following new Clause—
“Duty of care to service personnel
(1) The Secretary of State must establish a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations, as defined in subsection (6) of section 1.(2) The Secretary of State must lay a copy of this standard before Parliament within six months of the date on which this Act is passed.(3) The Secretary of State must thereafter in each calendar year—(a) prepare a duty of care report, and(b) lay a copy of the report before Parliament.(4) The duty of care report is a report about the continuous process of review and improvement to meet the duty of care standard established in subsection (1), in particular in relation to incidents arising from overseas operations of—(a) litigation and investigations brought against service personnel for allegations of criminal misconduct and wrongdoing;(b) civil litigation brought by service personnel against the Ministry of Defence for negligence and personal injury;(c) judicial reviews and inquiries into allegations of misconduct by service personnel;(d) such other related fields as the Secretary of State may determine.(5) In preparing a duty of care report the Secretary of State must have regard to, and publish relevant data in relation to (in respect of overseas operations)—(a) the adequacy of legal, welfare and mental health support services provided to service personnel who are accused of crimes;(b) complaints made by service personnel or their legal representation when in the process of bringing or attempting to bring civil claims against the Ministry of Defence for negligence and personal injury; (c) complaints made by service personnel or their legal representation when in the process of investigation or litigation for an accusation of misconduct;(d) meeting national standards of care and safeguarding for families of service personnel, where relevant.(6) In subsection (1) “service personnel” means—(a) members of the regular forces and the reserve forces;(b) members of British overseas territory forces who are subject to service law;(c) former members of any of Her Majesty's forces who are ordinarily resident in the United Kingdom; and(d) where relevant, family members of any person meeting the definition within paragraph (a), (b) or (c).(7) In subsection (1) “duty of care” means both the legal and moral obligation of the Ministry of Defence to ensure the wellbeing of service personnel.(8) None of the provisions of this section may be used to alter the principle of combat immunity.”Member’s explanatory statement
This new Clause will require the Ministry of Defence to identify a new duty of care to create a new standard for policy, services and training in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigations arising from overseas operations, and to report annually on their application of this standard.
Lord Dannatt Portrait Lord Dannatt (CB) [V]
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My Lords, in seeking to move Amendment 31, I pay tribute to the tireless and detailed way in which the Minister and the noble and learned Lord, Lord Stewart of Dirleton, have been responding to the extensive and detailed sequence of amendments to this Bill in the last two days in Committee.

That the list of proposed amendments is so lengthy indicates a considerable degree of concern about the Bill as drafted, but my concern does not extend as far as the concerns of those who would wish to see this Bill thrown out completely. Many noble Lords, myself among them, have been arguing for some years to have a Bill introduced that would provide better protection for serving and veteran soldiers, sailors, airmen and marines from vexatious, extensive and recurrent investigations arising from their actions in past operations. This Bill seeks to meet that aim, so I do not want to see it fail, but I do want to see it meet that honourable objective more effectively.

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These are all well-established policies and processes and, of course, we continually review them to ensure that they provide the best support and care possible for our personnel. I hope that the detail that I have provided has reassured your Lordships about the way in which the MoD both acknowledges and specifically addresses our duty of care and provides an environment for personnel to express and raise concerns. We are clear on our responsibilities to provide the right support to our personnel, both serving and veterans, and to seek to improve and build on this wherever necessary. I do not believe, therefore, that setting a standard for duty of care in the Bill is necessary, nor does it require an annual report to Parliament. I therefore urge the noble Lord to withdraw his amendment.
Lord Dannatt Portrait Lord Dannatt (CB) [V]
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My Lords, I thank all noble Lords and noble and gallant Lords who have taken part in this debate for their helpful contributions. At the heart of Amendment 31 is a simple issue: to get back to the original purpose of the overseas operations Bill, which is to better protect our servicepeople against a recurrent, extensive and vexatious series of investigations. The intent behind the amendment to ask the Secretary of State to lay down a duty of care is to answer some of the questions that I put in my opening speech. How many times is it reasonable for someone to be investigated and over what period? What should the attitude of the chain of command be?

I am grateful to the noble Baroness, Lady Goldie, for her response to the debate but, with the greatest respect to her, its principal part was to list the wider welfare provision for the Armed Forces provided by the Ministry of Defence and service charities. I know all that; I was head of my service through difficult times. With Bryn Parry, I co-founded Help for Heroes. I know what we are trying to do but, with the greatest respect, that part of the speech of the noble Baroness, whom I admire enormously, misses the point behind this amendment, which is simply to lay down a duty of care to bring to an end these recurrent, vexatious and almost unending—in Major Campbell’s case, there were eight—investigations.

I am grateful for the support that has been voiced for this amendment by the noble and gallant Lord, Lord Stirrup, and on behalf of the noble and gallant Lord, Lord Boyce. Both are former Chiefs of the Defence Staff and each is a former head of the Royal Navy or the Royal Air Force. Bear in mind that I am a former head of the Army. I am grateful for the support that has come from Members of all political parties in this House, but I am deeply disappointed that the Minister does not see the opportunity that this amendment poses. It gives the Ministry of Defence an opportunity to say, in simple and plain terms, how it can solve the problem of incessant vexatious investigations.

I regret that I decided not to press this amendment to a Division at this stage. I note that the Minister did not invite me to have further conversations with her, with her officials or with Johnny Mercer, the Minister for Defence People and Veterans. If she wishes to extend that invitation, I will gladly accept it. But I am quite certain that, with the support of the representatives of the armed services who have spoken and from all political parties, we will return to this on Report. If I do not feel that we have reached satisfaction in getting to the nub of the purpose of the Bill, which I have repeated several times, we will press this to a Division on Report. In advance of that, I beg leave to withdraw this amendment at this stage.

Amendment 31 withdrawn.

British Armed Forces: Global Britain

Lord Dannatt Excerpts
Thursday 21st January 2021

(4 years, 8 months ago)

Grand Committee
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Lord Dannatt Portrait Lord Dannatt (CB) [V]
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My Lords, some might thing that the UK, in claiming for itself the title “global Britain”, was being more than a little pretentious. The challenge is to substantiate the claim, and the route to that substantiation is the gaining of influence in the world, a reasonable ambition in the post-Brexit era. The real influence comes through a combination of the UK’s hard and soft power, a true integration of the skills of our diplomats, the strength and versatility of our Armed Forces and the correct focusing of our international development budget.

While I applaud the recent and significant increase in our defence budget, a welcome addition to our hard power, I am utterly dismayed—along with former Prime Minister Theresa May, the most reverend Primate the Archbishop of Canterbury and others—by the decrease from 0.7% to 0.5% of GDP in our international development budget. In the overall context of the Chancellor’s fiscal challenge, this £4 billion saving is tiny, but the damage that it does to the global Britain aspiration and our international reputation is huge. Would the Minister like to comment on whether this truly awful decision will either be reversed shortly or maintained solely for one year?

Overseas Operations (Service Personnel and Veterans) Bill

Lord Dannatt Excerpts
Lord Dannatt Portrait Lord Dannatt (CB) [V]
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My Lords, we have waited far too long for a Bill to be introduced that provides adequate protection for British service men and women to conduct operations free from the fear of retrospective investigation and possible prosecution—a justifiable fear that hangs over individuals for many years, or even decades, after events have taken place. Today we are debating a Bill that attempts to meet that requirement. As the Secretary of State for Defence said in introducing this Bill, it is,

“to protect our veterans against repeated reinvestigations where there is no new or compelling evidence against them, and to end vexatious claims against our Armed Forces.”

Although the Bill refers only to overseas operations, there are closely related issues with regard to Northern Ireland, about which noble Lords have frequently expressed their concern, not least in a debate in my name on 5 September 2018.

As much as we welcome this attempt to address the legislative aspiration by the Secretary of State and expanded on by the Minister just now, we have already heard from the noble Lords, Lord Touhig and Lord Thomas of Gresford, that the Bill, as currently drafted, does not meet the aim that it purports to satisfy. Although it has passed all its stages in the other place, many amendments were tabled and debated but rejected by the Government, whose majority in the House of Commons ensured that outcome. Moreover, there has been considerable criticism of the Bill outside Parliament, and our inboxes have been filled with briefings by well-respected commentators and professional groups, many urging that it be defeated or at least paused.

Here lies the dilemma: do we ultimately reject the Bill and lose the opportunity to provide the protection needed by our serving soldiers and veterans, or do we do our constitutional duty and seek to amend it, so that legitimate concerns are addressed, while ensuring that our servicepeople get the protection that they need? As parliamentary time, especially in the other place, is always at a premium, I am loath to give up the Bill, or even to pause it, and I therefore believe that the focus in this Chamber must be to amend the Bill to make it fit for its legitimate purpose.

Within the time constraints of this debate, I will raise three points. First, the Bill, which complements the Armed Forces covenant, needs to set out very clearly the Ministry of Defence’s standard of duty of care in relation to the legal, pastoral and mental health support provided to service personnel involved in investigations arising from overseas operations. If an example is needed as to why this is important, I refer to the case of Major Bob Campbell, who, along with two Royal Engineer colleagues, was investigated no fewer than eight times over 17 years before being exonerated. He is now a broken man, his career and health in ruins. He fell well outside any reasonable duty of care.

Secondly, the very sensible presumption against prosecution set out in Part 1 of the Bill needs to be more closely defined, removing the doubts that have been raised that such a presumption opens the way for cases such as rape and torture to go potentially unpunished. It has been argued that this presumption against prosecution is not needed because there have been very few prosecutions. But that is not the point. The point is that an outrageous number of allegations and investigations have proved groundless, thus resulting in very few prosecutions. It is well recorded that a virtual industry to pillory British soldiers was set up following the unpopular intervention in Iraq in 2003. As the Secretary of State for Defence has said, for example:

“In 2004, Phil Shiner, a lawyer, went fishing. He fished for stories, he fished for victims and he fished for terrorists.”—[Official Report, Commons, 23/9/20; col. 984.]


That conduct was completely unacceptable and Mr Shiner was quite properly struck off, but the damage to the reputation of the British Armed Forces had been done. Thus, a presumption against prosecution is a very reasonable safeguard, as is the five-year time limit, unless, of course, new and compelling evidence emerges. Those are the “exceptional circumstances” to which the Bill quite properly refers.

Thirdly, there is the relationship that the United Kingdom should have with international bodies to meet our wider obligations. The Bill suggests an amendment to the Human Rights Act 1998 to provide for the Secretary of State to consider whether it would be appropriate for the United Kingdom to make a derogation. While this has superficial attractions, I believe that—like the recent flirting in the internal markets Bill—the UK would run the risk of weakening our reputation as an upholder of international law and conventions. Moreover, such derogation could place the British soldier on the battlefield at even greater risk from his or her enemies, if international standards of conduct are overturned. War is a two-way exchange and actions have consequences.

I support the Bill, but it needs radical amendment to achieve its stated purpose.