Overseas Operations (Service Personnel and Veterans) Bill

Lord Dannatt Excerpts

Report stage
Tuesday 13th April 2021 Lords Chamber

Moved by

[Lord Dannatt]

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 (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.

--- Later in debate ---

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 (CB)]

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.