Armed Forces Bill

Lord Empey Excerpts

Thursday 3rd March 2016 Grand Committee

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, this amendment would introduce a time bar on bringing prosecutions against members of the Armed Forces, shielding them from prosecution for their actions while engaged in military operations outside the United Kingdom. The time bar would apply to their acts where more than 20 years had passed since those acts took place.

It is important to be clear, as noble Lords have observed, that the amendment would prevent personnel being prosecuted under either the service justice system or the civilian criminal justice system. It would cover all offences, not only against civilians or prisoners of war but against members of our own Armed Forces; for example, if evidence eventually came to light that a soldier had murdered another soldier while on operations, there could not be a trial if more than 20 years had passed.

I have much sympathy with the reasons that I know underlie the amendment. If criminal allegations are raised many years after the events in question, witnesses may be dead, memories may have faded and documentary evidence may have been lost. Indeed, those difficulties can be encountered even after a few years, never mind many years. However, I was grateful for the comments of the noble Lords, Lord Tunnicliffe and Lord Thomas of Gresford, and the two noble and learned Lords, among others. Members of our Armed Forces engaged in military operations must be subject to the rule of law and I cannot support a blanket ban on prosecutions of members of the Armed Forces after a stated period.

As the Committee is aware, the Armed Forces Act 2006 contains a system of service law that applies to members of the Armed Forces wherever in the world they are operating. This makes provision that a member of the Armed Forces commits a service offence if he or she commits any act overseas which would be an offence under the law of England and Wales were it done here. I am afraid I cannot see on what principle we should make an exception from the criminal law for those in military service overseas.

It is worth emphasising that, in both the civilian and service justice systems, when considering any case prosecutors are required to consider not only whether there is sufficient evidence to provide a realistic prospect of conviction but whether a prosecution is in the public interest. It has never been the rule that a prosecution will automatically take place once the evidential stage is met. Similarly, in the service system prosecutors are required to consider whether a prosecution is also in the service interest, including service interest factors. Clearly, if the offence is more serious, the public interest for a prosecution is more compelling.

It should also be noted that before a former member of the Armed Forces can be prosecuted for a criminal conduct service offence in respect of things that they did during their service, the consent of the Attorney-General must be obtained if more than six months have passed since they left the Armed Forces.

I am of course aware of the concerns expressed by the noble and gallant Lord over investigations by the service police of events in Iraq many years after those alleged events. In many of these cases, the allegations were not made immediately—for reasons which are not always clear. I assure the noble and gallant Lord, and the Committee, that intensive efforts are being made to bring these investigations to a conclusion as soon as possible. We are investing considerable resources in this area. We are looking at streamlined processes to ensure that those cases without substance are weeded out quickly, and so on. The Iraq Historic Allegations Team is doing an excellent job given the difficulties it faces. It has completed a number of investigations.

I do not believe for a moment that this process will still be in progress when the 20-year limit envisaged by the new clause would be reached. Indeed, the only theatre in which, so far as I am aware, criminal investigations or prosecutions of soldiers or veterans are in progress relating to events from more than 20 years ago is Northern Ireland, which is excluded from the scope of this clause because it covers only operations outside the UK.

I also assure the Committee that, while the Ministry of Defence will discharge its duty to provide any information in its possession relevant to such police investigations, it will also provide effective support, legal and pastoral, to veterans who may find themselves facing investigation for matters related to their duties. Although, I repeat, I sympathise with the concerns behind the new clause, in principle it would be wrong to provide an exception to the criminal law for members of the Armed Forces serving overseas in this way. On that basis, I hope that the noble and gallant Lord will agree to withdraw his amendment.

[Lord Empey (UUP)]

The noble Earl referred there to hoping that investigations would be brought to a speedy conclusion. Could he confirm that the Iraq investigation team will continue its operations until at least 2019? Also, on Northern Ireland, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, pointed out that some 40 years or more after the event a team of 30 detectives has been operating for the last three years doing nothing but pursuing these particular individuals, whereas the people who were the primary perpetrators of violence were away in the smoke many years ago.

--- Later in debate ---

[Lord Alton of Liverpool (CB)]

My Lords, I support the amendment moved by the noble Lord today in Committee. I apologise to the Committee, as, although I attended some of the Second Reading debate, duties elsewhere in the House prevented me from being able to be present for the Minister’s reply. I therefore did not speak at that stage and I crave the indulgence of the Committee in speaking today.

Noble Lords might know that I currently have before the House a Private Member’s Bill which has received a Second Reading. It enjoyed all-party support and would provide funding for research—to which the noble and gallant Lord just referred—into the causes of mesothelioma, a disease which the Government themselves predict will take a further 60,000 British lives. We have the highest incidence of mesothelioma anywhere in the world. No effective treatment exists; there is no cure and once diagnosed, the average patient dies within a few months.

On introducing that Bill, and in relation to our Armed Forces, I said that,

“the failure of the 2014 Act to include provision for compensation for our servicemen who die of mesothelioma is a glaring anomaly. The British Legion, the Royal Navy & Royal Marines Charity, the Royal Navy Royal Marines Widows’ Association, the Royal Naval Association and others all support calls for change”.—[Official Report, 20/11/15; col. 385.]

I contrasted at the time the position of a 63 year-old civilian, who might expect to receive around £180,000 in compensation, compared with a veteran’s entitlement to a year’s worth of war pension which, paid at the maximum rate for a non-married naval veteran, amounts to just £31,000. I argued then that veterans should be offered compensation at least equal to that which the courts and the Government have decided that civilians deserve. The unequal treatment of our servicemen and servicewomen amounts to a serious breach of the Armed Forces covenant, which is supposed to ensure that veterans are not disadvantaged because of their service.

I am particularly grateful, therefore, that the department has recognised that this is an anomaly that needs to be rectified, and I strongly welcome what the noble Earl, Lord Howe, said to the Committee a few moments ago. Of course, this echoes what his honourable friend in another place, the Parliamentary Undersecretary, recently told the House of Commons. He will also know that there was not just that anomaly: there was an anomaly within the anomaly in that a very small group of people—some 60—had been excluded from the scheme because of the way in which the timeline in the announcement fell. It is particularly good that the noble Earl has been able to say today that that will be removed—that the effect of the amendment that the noble Lord, Lord West, has put before the Committee will be realised.

The noble Earl will also know, especially given his previous duties at the Department of Health, that this is a disease that does not have a cure and needs much more basic research. He will also know that until the mid-1960s, blue asbestos—crocidolite—was widely used in the insulation of Royal Navy vessels. In consequence, many Royal Navy personnel have died of mesothelioma, particularly those working in boiler rooms and in engineering trades but also those on board ships during refits.

Professor Julian Peto, in an analysis for the Royal British Legion, estimates that a further 2,500 Royal Navy personnel will die of mesothelioma between now and 2047. On 8 December 2015 I asked the noble Earl in a Parliamentary Question how the Government intend,

“to assist members of the armed forces who are diagnosed with mesothelioma in the future; and what assessment they have made of whether those individuals should receive financial support at least equivalent to that of civilians diagnosed with the disease”.

The noble Earl replied that this was “a complex matter” and that:

“The Department commissioned advice from the Independent Medical Expert Group to look at mesothelioma and the awards paid through the WPS”.

The noble Earl promised an announcement and we have now received that.

However, if I may say so, there were also written into this and other Questions tabled at the time questions about the levels of research and indeed the data collection by the Government. I refer particularly to the comments of Commodore Rhod Palmer, who is a third-generation Royal Navy sailor diagnosed with mesothelioma in April 2015. Incidentally, he is one of those who would have been excluded from the new compensation scheme—the anomaly within the anomaly. He said:

“No amount of money will ever compensate sufferers and their families for a preventable death. However, it is a real breakthrough that the Government will treat all current and future sufferers of mesothelioma exposed to asbestos during their Service under comparable terms as civilians. This payment allows patients with mesothelioma to make arrangements to maximise their quality of life during this terminal illness and to support the family that they leave behind”.

He went on to say:

“Looking to the future, I strongly encourage further funding of research into advancing the treatment of this devastating condition”.

The noble Earl will recall that when he was at the Department of Health I moved an amendment to the Mesothelioma Act to provide financial support from the levy on the insurance industry, which was defeated by a handful of votes. At the time four insurance companies were voluntarily supporting research and the noble Earl believed that many of the other 120 insurance companies covered by the levy would voluntarily join the other four in supporting research into this killer disease. Sadly, I have to inform the noble Earl and the Committee that the opposite has happened, with only two companies now voluntarily supporting research. In supporting this amendment and welcoming this week’s announcement, I ask the noble Earl to study the correspondence that I have sent him today, which includes a letter sent on 18 February to Mr George Osborne, the Chancellor, by Professor Sir Anthony Newman Taylor CBE of Imperial College, urging him to release LIBOR funds—referred to by the noble Lord, Lord West—to help fund a national mesothelioma research centre, which Imperial wishes to create with the National Heart and Lung Institute, the Royal Brompton Hospital, the Institute of Cancer Research and the Royal Marsden Hospital. Incidentally, in that letter Sir Anthony says that the current rate of death is around 3,000 a year. He says:

“There is an urgent need to find curative treatment for this awful disease”.

He says that modern genetics hold great promise but that,

“sadly, to date, mesothelioma has not been the focus to achieve this at any research centre in the UK, or, as far as I am aware, at any centre worldwide”.

The Committee will recall the decision of the Chancellor to transfer some £35 million from the fines levied on the banks for attempting to manipulate the LIBOR interest rate. That money was transferred to the MoD for use in supporting the Armed Forces community. The proposal from Imperial College would be an imaginative use of some of those funds to help to find cures for a disease which has claimed too many lives among members of our Armed Forces. Following our debate today, therefore, I would be grateful if the noble Earl would write to me with a considered response to Sir Anthony’s initiative.

I shall conclude with a word about data collection within the Armed Forces. In February 2014, I asked the Government,

“how many of the annual fatalities caused by mesothelioma involve former members of the armed forces; what data are kept on the cause of death of former servicemen; and what research they plan to commission into the incidence of mesothelioma amongst former servicemen”.

The then Parliamentary Under-Secretary, the noble Lord, Lord Astor of Hever, replied:

“Data on the number of annual fatalities caused by mesothelioma does not identify those who were former members of the Armed Forces … The MOD has no plans to commission research into the incidence of mesothelioma amongst former Service Personnel”.—[Official Report, 11/2/14; col. WA 125-6.]

It is the duty of the department to do that, and it should have such plans. I encourage the noble Earl to revisit this issue. This should not be a case of don’t ask, don’t say. This is about people’s lives and our duty of care towards them. Anecdotes and speculative figures are no substitute for hard-edged data and empirical research, and today I again ask that data collection be instigated.

The noble Lord pursued this argument in June last year when he asked Her Majesty’s Government:

“What data is collected about the incidence of mesothelioma among members of the armed forces; what studies of this issue have been conducted; what estimates they have made of the future incidence of mesothelioma among service men and women and of connected fatalities”.

Those questions still have to be answered, and I hope today’s debate will help us to attend to that. In reply the Minister said:

“The MOD has not conducted studies or research about mesothelioma”.

Surely it is high time it did.

The London School of Hygiene & Tropical Medicine produced an estimate in 2009 that about 2,500 Royal Navy veterans will die from mesothelioma between 2013 and 2047. Surely, we should be commissioning research across the services to establish what the likely incidence will be and, more importantly, what we can do to avert this suffering and these deaths. Surely we should be supporting the work of our scientific community and offering hope to those who have been diagnosed with this horrible disease.

[Lord Empey]

My Lords, I support the amendments and welcome the statement from the Minister. It was sobering when the noble Lord, Lord West, said at an earlier stage that he and others played snowballs with this material in vessels. Sadly, anybody who comes from an industrial city such as mine with shipyards and other related businesses knows that that was common practice. Dust and fibres were brought into homes on clothing, and that transferred the disease to families, which is why in 2001, when I was Enterprise Minister, I set aside £180 million to cover what we considered to be the compensation required for people who had previously worked for shipyards, which were a nationalised business at the time, to cover deaths to 2050. The noble Lord, Lord Alton, who has done enormous work on this issue over recent years, says the same thing—that that is the sort of timescale.

What is not mentioned is that while some people think this disease is literally dying out, it may be in this country, but it is not dying out in the world. I am sure we have all seen the horrifying photographs of women in the Indian subcontinent surrounded by mountains of this material which is coming off ships that are being scrapped on beaches in Bangladesh, India and Pakistan. They are being dismantled, and these women are sorting this stuff out. It is horrifying to think of the downstream consequences that will produce. Therefore, anybody who thinks this matter is going to be settled in a few years is wrong.

In the amendments in my name in this group I want to draw attention and attempt to raise awareness through publicity among former members of the armed services who may be at risk or who may be susceptible to this disease. It is important that ex-service personnel and their families are made aware of the changes that are now taking place. I was also hoping for a monitoring process to ensure that the comprehensive and prompt detection of cases is also part of it. If people have been exposed, while it may not be currently curable the management of the disease can be handled. I had two neighbours who got this disease; it was a terrible death that they suffered. One of those individuals spent just one year of his entire career in the shipyard, where he, from time to time, went through an area where the electrical materials were being covered in asbestos. One exposure to one fibre, if you are susceptible, can be enough. That was 40 years earlier. It does not discriminate between a person’s normal health, class or physical condition. It is just one of those things: some people are susceptible and others are not. It does not matter whether you are exposed to it for one day or for 20 years. If you are susceptible, you are susceptible.