Armed Forces Bill

Baroness Finlay of Llandaff Excerpts

Tuesday 4th October 2011 Lords Chamber

Moved by

[Baroness Finlay of Llandaff]

3: Clause 2, page 2, line 11, after “housing” insert—
“( ) in the operation of inquests;”

[Baroness Finlay of Llandaff]

My Lords, I am grateful to the House for allowing me to de-group this amendment, and I listened carefully to the Minister’s comments in response to the previous grouping. For the avoidance of doubt I shall state publicly that I will not attempt to divide the House at this stage and I am respecting the agreement made through the usual channels. That is not to underestimate the strength of feeling over inquests and their operation.

My amendment would cover those currently serving who have died in action or on other aspects of active service; those who have died in training, who sadly constitute a significant number each year; and previous serving personnel who have now left the services but whose death for whatever reason is referred to a coroner. The Minister spoke of the relevance of the report to the issues of the day, and indeed about year-to-year variation in what may be a priority. I suggest that death is always relevant and will always remain a priority with those who have been bereaved, however small or large the numbers are. The amendment will never—one scarcely uses the word “never”—fall from being pertinent year on year.

My amendment does not incur additional expenditure, because the data are being collected and collated anyway and will be brought together in the annual report. There are data on the epidemiology of the pattern of deaths and on post-mortem findings. There are variations in verdicts, particularly narrative verdicts, and there would be much merit in pooling all those together. I am not asking for new and additional work, other than the work that is being collected. However, by putting it all together in one place, there will be an annual report which I suggest year on year could become quite an important historic document for monitoring trends and patterns, and for making sure that vigilance does not drop back over time.

I suggest that, in the absence of a chief coroner, this is particularly needed. It has strong support from the Royal British Legion, which, as the House knows, has felt very strongly about the conduct of inquests.

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[Lord Astor of Hever]

The noble Viscount, Lord Slim, makes an important point. We have no plans for increased casualties, and indeed the aspiration is to be out of Afghanistan in a combat role by the end of 2014. If, unfortunately, there are increased casualties, we will respond to that as best we can.

[Baroness Finlay of Llandaff]

I am most grateful to the Minister for his reply, and I want to put on record my thanks to him for the time he spent with me before the debate today and for the freely available contact I have had with his officials. They have gone to great lengths to answer my questions. However, I reiterate that I believe that this provision should be in the Bill. I urge the Government to pick up the suggestion of the noble Lord, Lord Rosser, that in the unlikely event of it being surplus to requirements, it could subsequently be removed. But, at this stage, I will withdraw the amendment.

Amendment 3 withdrawn.

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[Lord Lyell]

I apologise to the noble Lord, Lord Empey. I hope that I was not flippant in my comment about my military career, which ended in 1959. I agreed with the points that he raised, especially about Northern Ireland, and the two wonderful words that he used: running jump. Of all people, I appreciate what he was getting at. As for my devolved Administration in Scotland, I see enormous enthusiasm among relevant Ministers in Scotland to do everything possible for injured servicemen and those who have suffered, but, as a very humble member of the Institute of Chartered Accountants of Scotland, I am sure that, with its skills, it could consider the budgetary and financial implications of the measures we are discussing today on either a case-by-case or a category-by-category basis.

The noble Lord, Lord Empey, has raised the point and has been wonderfully supported by the noble Lord, Lord Ramsbotham. As far as is humanly possible, every case and category that we have been discussing this afternoon should be considered on a United Kingdom basis. The funds should be found to boost support, as described by the noble Lord, Lord Empey. I hope that that will be the case in Scotland. I do not know if we have heard anything about Wales; perhaps I had better not delve into that.

I am very grateful for the support and comments made by the noble Lord, Lord Empey.

[Baroness Finlay of Llandaff]

I intervene very briefly to support the spirit of the amendment and the comments made by the noble Lord, Lord Ramsbotham. We must remember that we now have people surviving injuries who previously would have died. They are therefore surviving with much higher needs for prosthetic fitting for artificial limbs, and so on, than previously. Unless the budgeting is looked at carefully, in a central format, we will have people whose needs cannot be met locally because some of them are literally unique in surviving in their situation. The budgetary implications must be addressed in the reflection.

[Lord Rosser]

My Lords, the Minister had the support of the whole House in his response to the previous amendment, and I hope that he will also give a helpful response to this one.

As has been said, our Armed Forces are United Kingdom forces. For that reason alone, it would surely be undesirable not to try to ensure that special provision for service people is broadly the same across the United Kingdom. The amendment does not require the Secretary of State to do the impossible and ensure that special provisions made are broadly the same, but simply provides for the covenant report to state how the Secretary of State will seek to ensure that such provisions are broadly the same. This is an eminently reasonable and constructive amendment, and I hope that the Minister will give an equally constructive response.

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Moved by

[Baroness Finlay of Llandaff]

12: After Clause 11, insert the following new Clause—
“Procedure on arrest for substance abuse, violence against the person or damage to property
After section 74 of AFA 2006 insert—“74A Procedure on arrest for substance abuse, violence against the person or damage to property
(1) If a person subject to service law and currently serving in Her Majesty’s armed forces—
(a) has been arrested on suspicion of having committed an offence, and(b) the damage is related to substance abuse, violence against the person or criminal damage to property,prior to any decision being made as to charge, consideration shall be given and the conclusions recorded as to the possible diversion of the person for specialist services to assist with substance misuse and mental health treatment either through Her Majesty’s armed forces or in the community.(2) Prior to such a person’s case being determined before a military or civil court, the prosecuting authority and the court shall review whether the case should be referred to specialist services such as are described in subsection (1).””

[Baroness Finlay of Llandaff]

My Lords, this amendment has been rewritten in the light of the debate we had in Committee. It has, I hope, addressed the criticisms of the previous wording. It is about the procedure on arrest of somebody for substance abuse, violence against the person or damage to property. This relates quite specifically to alcohol-fuelled aggression, a problem that sadly is increasing, and possibly to drug-fuelled aggression. The alcohol-fuelled problem is much greater. The aim of the amendment is simply to bring into line the military court system with the civilian court system.

The Police and Criminal Evidence Act, known as PACE, set out criteria for the police station in civilian life which present an automatic safeguard that does not exist in the military court system as PACE does not apply. Some of these safeguards include: access to a forensic medical examiner, addiction and arrest referral and mental health liaison and assessment teams. I am most grateful to the Minister and to officials who met me and spent some time discussing the details of this amendment. I draw noble Lords’ attention to the wording just after the proposed new subsection (1)(b), which says that,

“prior to any decision being made as to charge, consideration shall be given and the conclusions recorded as to the possible diversion of the person for specialist services”.

All this amendment is asking is that it is considered. It is not asking that any more than that happens. It does not mean that there has to be detailed testing. It simply means that the person making the arrest should have a prompt to think about the problem.

I understand that probation trusts are going to become increasingly involved in the assessment of Armed Forces personnel when they are up for charges. Indeed, Hampshire Probation Trust has been named as one. One of the difficulties, of course, is that like other areas it is facing stringent budget cuts, including front-line cuts. I would be concerned as to how a probation trust is going to have probation officers in areas such as Newcastle or Yorkshire or wherever there are other barracks because they are quite far-flung. I note that there has been a recent advertisement for probation officers to cover the whole of Germany. It is for two officers. It is a very large area for just two people to cover. There is concern about the level of training and support that these people will have. Therefore, I hope that the Government will be able to provide some reassurance that the prosecuting authority will seek to engage with local probation trusts, wherever appropriate, because a local probation trust will be familiar with local issues and local diversion projects both in the community and in barracks.

Any probation officers dealing with people from the military need to have proper training to identify underlying mental health and substance misuse issues. The way that such cases present in the military may be different from how they present in what one might call the purely civilian population.

The idea of an intervention before charging is precisely to avoid stigmatisation and to avoid court proceedings when other interventions would be more appropriate and, indeed, perhaps less expensive. In the civilian justice system there are many intervention and diversion possibilities before a person is charged. For example, if the custody sergeant or arresting officer suspects drug and alcohol or underlying mental health issues, he will, in fulfilling his duty, call in a police doctor. Under the Police and Criminal Evidence Act 1984 there are triggers to look for evidence if drugs or alcohol are suspected. I quote from the guidance:

“The drug test is a screening tool only and the result cannot be used … against the detainee ... The result of the test can lead to referrals for treatment and can also be used to inform court decisions on bail and sentencing”.

If that guidance were adopted for military courts, we would certainly not run the risk of any results being used against a detainee but an intervention might provide the support needed to deal with the fundamental problem behind the offending behaviour.

The problem of stigmatisation is particularly marked in the Armed Forces. In medicine there has been, and perhaps still is, a somewhat macho culture in terms of coping with very traumatic situations. People suppress their feelings and have a drink, and it is quite a macho thing to hold your drink or to cope with drugs. When you fail to hold your drink and maintain that bravado, you are stigmatised as being weak because you have failed the alcohol or drugs test. People’s inhibitions about admitting to having a problem or a trauma is therefore perpetrated by this macho culture.

Early detection and intervention is extremely cost-effective and was monetised by the New Economics Foundation. I have the figures relating to women, although I do not have them for men. The cost of incarcerating a woman for a year is £56,000 and the cost of locking her up for 10 years is £10 million. Therefore, on those figures, early intervention with someone for whom such incarceration had no benefit at all could certainly quickly be seen to be very cost-effective for society. There is simply a need to ask whether the person misuses substances and whether he wishes to self-harm or has ever tried to self-harm or commit suicide. That opportunity for self-disclosure in a safe setting prior to charging must be encouraged and nurtured by the Ministry of Defence, as opposed to the current culture of shaming a person and heaping punishment on them. With the help of outside lawyers, I ran the Minister’s Committee stage briefing past former service personnel. I am afraid their response suggests that the impression that a lot is already in place may be a sign of slightly misplaced faith in the current system, and it reinforced my resolve to bring forward this amendment.

In the civilian justice system there is a fairly new joint initiative between the Ministry of Justice and the Department of Health to identify people known to the community mental health team as suffering from mental health issues or as being treated for substance misuse so that they can be dealt with fairly and appropriately. I would hope that the same could be put in place for the court martial service and the defence community mental health teams, and I think that this amendment would help to stimulate such collaboration.

In Committee, objections were raised about the pressure on the military court system to deal with every case through psychiatric reports and drug testing, but the wording has removed the obligation. As I said before, it simply makes it a consideration which lays some, although not an onerous, measure of legal responsibility. The wording creates a consideration, not an obligation, and leaves room for discretion. Some important current initiatives could certainly be built on and would, I think, be completely compatible with the wording of the amendment. For example, it looks as though the Trauma Risk Management programme, which is a peer-review support programme used in Afghanistan, will be a very effective way of supporting deeply traumatised members of our Armed Forces.

It is important to remember that many service personnel are very young indeed and do not have the emotional infrastructure behind them to help them to cope with the traumas that they encounter. Their repeated infractions are often symptoms of far deeper problems, some of which may have occurred before they ever joined the Armed Forces. When the revealing of those multiple traumas is alcohol-fuelled, it can result in the injury of and violence towards people around them, particularly within the personnel’s own family.

I suggest that lower welfare costs and the effect on budgets across all government departments will come about by dealing with the underlying issues through early intervention. That is the spirit behind the amendment. I know that the noble Lord, Lord Carlile, who regrets that he is unable to be here at the moment, feels that the amendment should meet the criticisms made in Committee, and it should also help to turn around the existing attitude within the military court system, bringing it into line with the civilian court system. I beg to move.

[Lord Wallace of Saltaire]

My Lords, I recognise the noble Baroness’s concerns, which form the background to her amendment and to the way in which she has responded to points made in Committee on her earlier amendment. She wishes to bring awareness of and investigation into potential links between substance abuse, mental disorder and the committing of offences within the Armed Forces as close as possible to what is now required within the civilian justice system.

My understanding is that alcohol abuse is currently a much more common problem in the forces than drug abuse. Mental health issues—particularly those associated with post-conflict trauma—are, however, a wider concern.

I recognise the noble Baroness’s concern that there are insufficient and insufficiently trained staff to provide the examinations and reports that are needed. I reassure her that the MoD will look again at the level of provision, but I am informed that there have not been recent complaints from within the military that resources are inadequate.

She raised the question of Germany. I have just checked again my previous understanding that UK forces remaining in Germany are now concentrated in two geographical areas and are not spread across the whole country. The appointment of two probation officers therefore seems appropriate.

There remain some real problems with the exact terms of the amendment as drafted, which make it impossible for the Government to accept. However, we do accept and share the underlying concern that the noble Baroness is addressing. The importance of the psychological state of an offender and the appropriateness in some cases of a specialist social or mental health approach instead of prosecution is well understood in the service justice system, as in the civilian system. However, the framework within which the forces operate is not, and cannot be, identical to the framework within which civilian offences are handled. None the less, the MoD and the Armed Forces are conscious of the importance of recognising at an early stage those who may need specialist attention. If possible, this must happen before offences are committed or prosecutions are started. That is part of the service support system.

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Lastly, the amendment would mean that members of the Armed Forces were singled out by statute as requiring in every case related to substance abuse, violence to a person or damage to property, special consideration of the need for assistance with substance abuse or mental health treatment. These do not apply to other citizens, and I do not consider that there are grounds for such a different approach between members of the Armed Forces and civilians. I emphasise that we recognise the importance of understanding the psychological and social background of an offender in the Armed Forces as well as in civilian life, and I hope that the noble Baroness will be reassured by my summary of what has been put in place in the Armed Forces to identify mental health problems and to treat them in the right way. In the light of the reassurances that I have given, I hope that the noble Baroness will feel able to withdraw her amendment.

[Baroness Finlay of Llandaff]

I am most grateful to the Minister for providing me with a very detailed response, and for the reassurances that he has given now. I was not given such reassurances in Committee. The points that he makes are extremely important. In the light of them I will withdraw the amendment and hope that we will not hear in the future about some of the disasters that have occurred in the past. I beg leave to withdraw the amendment.

Amendment 12 withdrawn.