Overseas Operations (Service Personnel and Veterans) Bill

Lord Dannatt Excerpts

Consideration of Commons amendments
Monday 26th April 2021 Lords Chamber

Moved by

[Lord Dannatt]

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 (CB) [V]]

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.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

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.

--- Later in debate ---

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 (CB) [V]]

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.