Overseas Operations (Service Personnel and Veterans) Bill

Debate between Lord Hope of Craighead and Lord Dannatt

Report stage
Tuesday 13th April 2021 Lords Chamber

[Lord Dannatt (CB)]

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 (CB) [V]]

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.