Armed Forces Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Tuesday 2nd November 2021 Grand Committee

[Lord Thomas of Cwmgiedd (CB)]

My Lords, it is a pleasure and privilege to follow the noble Lord, Lord Lancaster. I rise to deal with the key issue of independence. It is, as I said on the previous day in Committee, essential to two things. One is public confidence—one cannot overestimate the importance of that—but it is equally important to the morale and well-being of Her Majesty’s Armed Forces.

I think we have established a very clear structure for the independence of the Director of Service Prosecutions and the three distinguished holders of that office, Bruce Houlder, Andrew Cayley and Jonathan Rees, the current DSP, have ensured that it happens. Now, how do we deal with the independence of the police? It seems to me very important to look at the problems with the independence of an investigation. Many us will have forgotten—or were not alive at the time—when there were serious problems in the civilian police, particularly with watch committees and other mechanisms that were meant to ensure that the police were accountable and independent. It did not work. Various things were tried and eventually we came up with the police and crime commissioners, as Sir Richard notes in his report.

Looking at independence, and having had to fight for the independence of the judiciary from time to time, I can assure noble Lords that what you need is a structure behind you—someone independent to go to on whom you can rely. In the case of the judiciary, one can obviously come to Parliament. That is ultimately what is provided for. That is why, it seems to me, the independent strategic board proposed is absolutely the key part of this. There should be an absolute duty for an independent investigation, which should not be qualified in any way, but you need an institutional structure.

What I wholly fail to understand from the Minister’s observations is why that cannot now be put in place and, in the way that police and crime commissioners have been made part of the statutory mechanism that looks to the police, why we cannot have a statutory mechanism for the Armed Forces. Surely they are entitled to the same sort of protection as ordinary civilians—as us all. I do not understand why we always expect the Armed Forces to have second best. There can be no reason why these issues have not been fully considered and why the Government cannot go forward.

This has been a long-standing problem. One has to go back only to the awful problems of the Iraq and Afghan wars, with the sticking-plaster solutions—if I may be so bold as to describe them as that—of bodies such as IHAT, the Iraq Historic Allegations Team. If you lived through cases on that, you would appreciate the need for a structure and something that we can be proud of to protect independence.

Given the history of the way in which the Armed Forces from time to time behave, if you do not do something now, you will have a problem in the future. I urge the Government to grapple with this now and deal with it by putting in provisions, as Sir Richard recommended. If one reads his report carefully, one sees the importance of the strategic board as the guarantor of independence. As the noble Lord, Lord Lancaster, said, how is independence to be secured without some form of mechanism?

The second area on which I want to comment briefly is witness and victim care. This seems to me an important part of a statutory protection. If there is a witness or victims’ unit, there is someone to go to. Again, why are the Army, the Navy and the Air Force to have second best? Why is there not statutory provision, just as there is in the ordinary criminal justice system? I urge the Minister to look at this again with the objective of protecting the Armed Forces for the future and giving them what the rest of us have.

[Lord Robertson of Port Ellen (Lab)]

My Lords, it is a great privilege to follow the former Lord Chief Justice of England and Wales in making the valuable and very firm points that he made. The question he asks is far from rhetorical. Why should members of our Armed Forces settle for second best? Why should we expect them to be less entitled to systems of justice that ordinary citizens can access?

I have vivid memories of the overseas operations Bill from this Session of Parliament. That was another Bill that came from the House of Commons, where the debates were dominated by a Minister demanding total obedience to every dot and comma of the Bill on the grounds that if you were against it, you were against the British Army, thereby allowing through provisions that might well have led to British soldiers and other members of Britain’s Armed Forces appearing before the International Criminal Court. Eventually, the Government woke up, but not without huge pressure and a lot of distinguished Members of this House making sure they got a very firm message. I do not want to embarrass the Minister too much, but I know that she played a role in getting common sense seen in that debate.

When we look at legislation being brought forward by the Government, we are wise to be cautious about what the Government say in their own defence. Therefore, when the Minister says that there are elements in the Henriques report which require attention and I ask which of those have policy implications, I would expect the department to be able to tell us. I recognise the phrase “when parliamentary time allows”, because I am sure I used it during my ministerial career. There is usually very little parliamentary time available for primary legislation, which is what would be required to enact the remaining aspects of the Henriques recommendations.

I follow my noble friend Lord Coaker in what he says and his detailed questions. The key question concerns the fact that, while Henriques made a number of recommendations, 13 of them have not appeared in the amendments to the Bill in this Committee. He is right to ask this question, which I repeat: which of these require policy consideration, because that could take a very considerable period to come forward as well?

The stories in the Sunday Times, both last Sunday and the Sunday before, should, frankly, horrify all of us. What is described there is disgraceful, disgusting and completely indefensible. I am not a lawyer or a soldier, but I cannot understand why action is not being taken and investigations into this particular incident are not taking place. We are being told that only if the Kenyan authorities start to make their inquiries will anything happen in this country, when there seems to be clear evidence around, involving British citizens and members of the British Armed Forces involved in this. Why has there not been some investigation? Just as members of the Armed Forces are perfectly entitled to be treated like other citizens in this country, victims also have a right to the kind of justice and investigation that we would expect for anyone else in the country.

We should not allow the Sunday Times to develop this story, week after week, with hugely damaging effects on the reputation of our Armed Forces, the recruitment of people into them and the country as a whole. Although it is not, strictly speaking, the business of this Committee, it is a matter of public concern. It has alerted the public in general to the whole question of service discipline. Therefore, the business of this Committee and Bill, detailed and arcane as it is in some ways, has now become a matter of public attention. It is up to the Government and Ministers in the Ministry of Defence to pay attention to that and resolve it so that they protect the reputation of the country and our distinguished Armed Forces.

--- Later in debate ---

[Baroness Goldie (Con)]

I say to the noble Lord—and I do not want to reprise everything that I have said—that we recognise the different characteristics within the service justice system that are not necessarily a part of the civilian system. We have to acknowledge that, as I indicated, it is not easy to just place things in silos. If something happens on an overseas operation, the chain of command may have to take action. That is why we talk about “improper interference”. I think that is an important distinction. What we are placing upon the provost marshal and the Defence Serious Crime Unit is the obligation to be independent and to seek to ensure the independence of the investigation.

However, we also have to acknowledge the reality of the environment in which these individuals are operating. That is why the Government have deliberately chosen the phrasing they have. I said earlier that there is nothing innovative about that phrasing; it deploys existing text from previous Acts. But I suggest to the noble and learned Lord that it would be unwise to place on the provost marshal obligations that are beyond the wit of the provost marshal to discharge. Equally, it would be wrong to condemn the chain of command for taking action in the early stages of an incident which the chain of command may have had no alternative but to take to protect personnel, to look after safety, to preserve evidence or whatever. That is why the Government prefer the phrasing they have adopted.

[Lord Thomas of Cwmgiedd (CB)]

May I ask one question? I asked: why does the Bill contain no institutional provisions to protect the independence? Maybe the Minister needs a little more time to think about this and look at what protection is given in relation to the civilian police. I would be grateful if she could write with an answer about the institutional support that backs up independence.

[Baroness Goldie (Con)]

I hear the noble and learned Lord. I think there is an acceptance within the service justice system that there is operational independence. I have had that confirmed to me by military police officers, particularly those investigating senior ranks and above their rank. They have not felt inhibited. They have not felt constrained. They have absolutely done the work they have needed to do. But I will reflect on the noble and learned Lord’s remarks and see whether I can offer any comfort.