Commons Reason and Amendments
Motion A
Moved by
Baroness Goldie Portrait Baroness Goldie
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That this House do not insist on its Amendments 1S, 1T and 1U and do agree with the Commons in their Amendments 1V, 1W, 1X, 1Y and 1Z in lieu.

1V: Page 12, line 39, leave out from “crimes)” to end of line 2 on page 13
1W: Page 13, line 13, leave out from “crimes)” to end of line 18
1X: Page 13, line 34, leave out paragraph 24
1Y: Page 14, line 6, leave out from “crimes)” to end of line 12
1Z: Page 14, line 33, leave out sub-paragraph (b)
Baroness Goldie Portrait The Minister of State, Ministry of Defence (Baroness Goldie) (Con)
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My Lords, I am extremely pleased to confirm that the Commons has agreed to the government Amendments 1V, 1W and 1X in lieu of Lords Amendments 1S to 1U. In doing so, I draw attention to the consequential Amendments 1Y and 1Z—which were also agreed—to the government amendments, which serve only to delete the now unnecessary definition of articles in Schedule 1.

As I set out in some detail in our debate on this issue on Monday, it has always been the Government’s view that the measures in the Bill will not increase the risk of our service personnel or veterans being investigated or prosecuted by the International Criminal Court. Accepting this amendment in lieu, which will exclude all offences that fall within the jurisdiction of the International Criminal Court, including war crimes, will offer further reassurance and put this issue beyond any doubt.

The other place has agreed to Lords Amendment 1R, which excludes all offences under the Geneva Conventions Act 1957 from Part 1 of the Bill. The grave breaches of the Geneva conventions referred to in that Act are also war crimes offences through the International Criminal Court Act 2001. As such, it is right that these offences should also be included in Schedule 1 in order to maintain a consistent approach.

The measures in Part 1 of the Bill will apply to all “overseas operations”, as defined in Clause 1(6), and it is perhaps worth remembering that not all alleged offences committed on an overseas operation will amount to an ICC Act offence. I can reassure your Lordships, therefore, that service personnel and veterans will continue to receive the benefits of the additional protections provided by the measures in Part 1 of the Bill in respect of historical alleged criminal offences under the criminal law of England and Wales through the Armed Forces Act 2006, saving those offences that have been excluded by Schedule 1.

The decision of whether to exclude war crimes from the measures in the Bill has limited practical effect. In practice, the prosecutor would still have retained their discretion to prosecute an individual for a war crime, because any credible allegation would be likely to trigger the exceptionality threshold in the presumption. The decision to exclude war crimes is aligned with the highest standards that we expect from all our Armed Forces personnel, the overwhelming majority of whom meet those expectations and serve with great distinction. But we rightly hold anyone to account when they fall short of these expectations.

The Bill delivers the Government’s commitment to protect our service personnel and veterans from the threat of legal proceedings in connection with historical overseas operations many years after the events in question, and it reinforces our continuing commitment to strengthen the rule of law and maintain our leading role in upholding the rules-based international system. We intend to maintain our leading role in the promotion and protection of human rights, democracy and the rule of law.

The Government have listened to the concerns of both Houses, particularly the concerns so eloquently expressed by noble Lords on this matter, and the other place has accepted the government amendments in lieu. I therefore urge your Lordships to likewise accept these amendments.

I also beg to move Motion B, that this House do not insist on its Amendment 5B, to which the Commons have disagreed for their reason 5C.

On Amendment 5B, it continues to be the Government’s view that it would not be practicable or desirable to define a legally binding standard of care. As I have now said on several occasions, the MoD takes very seriously its duty of care for service personnel and veterans. Over the years, we have established a comprehensive range of legal, pastoral, welfare and mental health support for service personnel and veterans. We have come a long way from the early days of our operations in Iraq and Afghanistan. Our welfare provisions were clearly laid out in the Defence Secretary’s Written Ministerial Statement of 13 April, and continued improvement can be achieved without the need for legislation.
I urge your Lordships to read this Statement carefully, because it sets out the full range of measures and support that are available for service personnel. The support arrangements that we have in place today mean that, where an investigation takes place into allegations of crimes committed on the overseas operations to which this Bill applies, those involved will be looked after from the beginning to the end of the process, even after they have left the service.
Additionally, I must stress again that we are deeply concerned about the potential unintended negative effect of this amendment if it is included in the legislation. Notions of pastoral and moral duties are extremely difficult to adequately define in law and there is a real risk that attempting to do so will lead to more, rather than less, litigation and greater uncertainty. We are also deeply concerned that, as investigations and allegations arise on operations, this amendment might have the unintended and undesirable consequence of undermining our operational effectiveness.
Where the Government do agree with the noble Lord, Lord Dannatt, is on the need to clearly set out the benefits of this Bill to the Armed Forces community, and he has asked for a commitment that the Government will communicate the benefits of the Bill down the chain of command. Of course, I can and will give that assurance now. We will aim to ensure that all service personnel understand the positive effects of the Bill and the legal protection it affords them. We will explain how the measures in the Bill are beneficial to individual service personnel who have or will deploy on overseas operations. Part 1 of the Bill will reduce the number and length of criminal investigations that are connected to overseas operations. Our Armed Forces personnel can be reassured that the unique context of overseas operations will be taken into account when criminal allegations against them are being investigated.
In relation to Part 2, the longstop measures should be a disincentive to the industrial scale of claims we saw in the wake of Iraq and Afghanistan and should encourage legitimate claims to be brought promptly. This will directly benefit service personnel, who will no longer have to give evidence in court many years after an event. More importantly, these same measures will reduce criminal investigations and reinvestigations which are triggered by late civil claims. Together, both parts of the Bill will give greater certainty to service personnel that they will not have the shadow of legal proceedings hanging over them for decades after they return from an overseas operation.
As I said earlier, it will, of course, be clear that the Bill will not stop service personnel being held to the highest standards that we expect from all our Armed Forces, and that they will still be subject to domestic and international law when they deploy on overseas operations. Similarly, we will make it clear that the limitation longstops will also apply to claims by them if they are connected to overseas operations, and emphasise that they should bring such civil claims within six years of either the event or their date of knowledge. As has been previously indicated, the vast majority have historically already done so, but it is important that this message is understood, so that, in future, an even greater percentage of service personnel can bring their claims in a timely manner.
In summary, this legislation delivers for our Armed Forces and protects our people, and I do not believe that setting a standard for duty of care in the Bill is necessary or desirable. Finally, I note that the noble Lord, Lord Dannatt, has previously indicated that he will bring back this amendment in the Armed Forces Bill, which will come to this House in the summer, and this House will no doubt debate the issue further. I look forward to continuing these constructive discussions about the wider duty of care owed to our people. In these circumstances, I urge the noble Lord not to press his amendment.
Viscount Younger of Leckie Portrait Viscount Younger of Leckie (Con)
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My Lords, I think it may have been noticed that my noble friend has strayed from Amendment A into Amendment B. I think it would be wise to allow the Deputy Speaker to deal with Amendment A before we move on to Amendment B. I might be able to persuade my noble friend to keep her opening speech short for Amendment B as it has been given already.

Lord Robertson of Port Ellen Portrait Lord Robertson of Port Ellen (Lab)
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My Lords, I am grateful for the clarification by the Whip on the Bench. I am going to talk about Amendment A only at the moment, but the Minister clearly was trying to save us time by conflating everything into one. I thank the Minister for her co-operation and help during the course of this particular issue. My prevailing sentiment at the end of this process is relief. I am happy to accept the government amendments that have been put down that discharge the decision taken by the House in its earlier session.

It is a relief that we have, in doing so, saved the Government and, more importantly, the country from the embarrassment, maybe even the humiliation, of challenging international humanitarian law, which would have been the import of where we were going. It was, however, not easy to persuade Ministers and their somewhat acquiescent majority in the other place that this aspect of this Bill would cause more trouble than it would solve. It took two chunks of parliamentary time to persuade them to come to this conclusion this evening, but, finally, sense has prevailed. Our troops, sent overseas in our name, will now not be singled out as being above the law that they seek to uphold. They will not face the prospect of being subject to the jurisdiction of the International Criminal Court. Nor will we, this United Kingdom, become the precedent for every warlord or war criminal to say that our presumption against prosecution after five years would give them some sort of carte blanche to be let off the hook. Improving—some might say saving—this Bill represents the conclusion of a tenacious campaign to draw public and parliamentary attention to its manifest defects.

In particular, I pay tribute to John Healey MP, the shadow Defence Secretary, and Stephen Morgan MP, who sought in the other place to demonstrate the weaknesses of the Bill. I also thank David Davis MP— who I once was in hand-to-hand combat with as his shadow in the days of the Maastricht treaty—who was, in this case, a powerful voice in changing the legislation. I also pay tribute to Dan Harris in the PLP office, who gave so much advice and support to me and my colleagues, my noble friends Lord Tunnicliffe and Lord Touhig, as they campaigned vigorously during this Bill. I also pay tribute to the noble Lords, Lord West, Lord Campbell of Pittenweem and Lord Alton, who were my co-signatories on the key amendment.

I would also like to mention the Financial Times, the Daily Mail and Nick Cohen in the Observer, who also joined in the campaign to change the Government’s mind on this case. A number of NGOs also played a major part in drawing attention to what we are talking about here this evening, and I single out Steve Crawshaw at Freedom from Torture, who did a huge job here. The Bingham Centre, the Law Society, Liberty, the APPG on Drones and the British Legion all offered detailed advice and intelligent, perceptive and constructive criticism of the Bill. It was a Bill that sought to do a commendable service for our fighting forces but which almost ended up leaving them liable to trial in The Hague.

As I said originally, my overwhelming sentiment now is relief, and I welcome the Government’s amendments tonight. Elegantly, they make it clear that war crimes, improbably committed by British troops serving overseas will be subject, as they are in international law, to no time limit at all. I thank the Minister, the noble Baroness, Lady Goldie, for her understanding and indulgence, and I am so pleased this evening to be able to give her support in relation to Motion A.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD) [V]
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My Lords, between the two items of business on defence matters, the Government Chief Whip pointed out that there are three pieces of legislation still going back and forth between your Lordships’ House and the other place. With regard to the Overseas Operations (Service Personnel and Veterans) Bill, I suspect that this will be the last iteration in either Chamber because, as the noble Lord, Lord Robertson, so eloquently pointed out, the Government’s amendments in lieu of this particularly important amendment basically give everything that we have been asking for at various stages.

I will not rehearse the litany of people that the noble Lord, Lord Robertson, said, had either supported the amendment or given advice on it, other than to say, in line with his sentiments, that the omission of genocide, war crimes and crimes against humanity and torture had potentially created a lacuna in the Bill that could have been detrimental to service personnel and veterans. While the stated intention of the Bill, to deal with vexatious claims, was a good one, the original framing of the Bill was less good. With this amendment, we have moved a long way towards making the Bill fit for purpose and we certainly support the amendments that the Government have brought forward at this stage. I thank the noble Lord, Lord Robertson, for his tenacity in bringing the amendment again and again, and I thank the Minister for listening and for the representations that have gone back and forth between the Chambers. At this stage, I welcome this Motion and expect to see the Bill passing relatively soon.

Lord Tunnicliffe Portrait Lord Tunnicliffe (Lab) [V]
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My Lords, we welcome the Government’s amendments to ensure that serious offences, including war crimes under the jurisdiction of the ICC, are excluded from the presumption against prosecution. These amendments give full effect to the amendments passed on Report in this House, which were signed by noble and gallant Lords who have much wisdom and guidance, both on military matters and human rights.

It has taken a lot of work to get to this point and is a testament to the important work we do. I thank the noble Lord, Lord Robertson, for his leadership on this issue, as a former head of NATO and former Defence Secretary. I also thank colleagues for the collaborative approach that all sides have shown on this issue. I remind the Minister that this mistake was not discovered at the last minute; it was a glaring issue when the Bill was first published, an issue that threatened our international standing, including that of our Armed Forces, and could have led to British service personnel being called in front of the ICC.

The Government’s amendments mean that our international reputation will not be trashed, but it has been damaged, just like it was by the internal market Bill and by the cut in development spending. It leaves me wondering what message this Government want to send to the world, because the world watches what we do. As the noble Lord, Lord Robertson, said, this would have set a terrible precedent, likely to be grabbed on by many of the worst regimes in the world. I close by imploring Ministers, if they really want Britain to be a moral force for good in the world, to not be so reckless. With this Bill, which still has many flaws, we got there in the end on this issue, and for that, I am grateful.

Baroness Goldie Portrait Baroness Goldie (Con)
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My Lords, first, I offer my apologies to the Chamber and the Deputy Speaker for my inadvertent acceleration of proceedings. At this time of day, immediately after a Statement, I fell into the trap of reading the two speeches I found in the folder together. I emphasise that no discourtesy was intended to the Chamber, and very particularly I say to the noble Lord, Lord Dannatt, that none was intended to him.

I thank noble Lords for their comments, and particularly the noble Lord, Lord Robertson, for his singular contribution to this issue. I am very grateful that on what is an important issue we have managed to reach a position acceptable to him and his fellow contributors. I am very grateful to the noble Baroness, Lady Smith, for her helpful comments on the Bill and for her desire to get it passed. I also express to the noble Lord, Lord Tunnicliffe, my appreciation of his acknowledgement, while he may still have reservations about aspects of the Bill, of the progress made to bring it to an acceptable place.

I thank noble Lords for their contributions, and I commend the Motion.

Motion A agreed.
Motion B
Moved by
Baroness Goldie Portrait Baroness Goldie
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That this House do not insist on its Amendment 5B to which the Commons have disagreed for their Reason 5C.

5C: Because it is not necessary, and would not be practicable, to define a legally binding standard of care in relation to the matters referred to in the Lords Amendment.
Baroness Goldie Portrait Baroness Goldie (Con)
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I beg to move Motion B. I again apologise to the noble Lord, Lord Dannatt, for inadvertently making my speech in advance; I am sure that all your Lordships will be relieved to hear that I do not intend to repeat it. However, I wish to say how much I have appreciated the noble Lord’s profound and passionate interest in the issue which he is pursuing. I know that that is born out of a genuine desire to do his best and ensure that Parliament does its best for our Armed Forces personnel. Therefore, although I will not repeat my speech, I shall certainly listen with great interest to what he has to say.

Motion B1 (as an amendment to Motion B)

Moved by
Lord Dannatt Portrait Lord Dannatt
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At end insert “but do propose Amendment 5D in lieu—

5D: 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 section 1(6).
(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) 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).
(4) 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.
(5) None of the provisions of this section may be used to alter the principle of combat immunity.””
Lord Dannatt Portrait Lord Dannatt (CB) [V]
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My Lords, this is now the fifth time that I have spoken in favour of an amendment to the Bill inviting the Secretary of State for Defence to lay down a duty of care standard to protect the legal, pastoral and mental health support available to serving and veteran members of our Armed Forces involved in investigations or litigation arising from overseas operations.

I continue to be most grateful to the Minister for her courteous but determined rejection of the arguments in favour of such a duty of care standard that have been advanced by many other noble Lords and by me. I am also most grateful for the cross-party, cross-Bench and tri-service support that this amendment has attracted. I have also most carefully read the Hansard reports of the debates on this amendment in the other place. I note support there for the amendment from right honourable and honourable Members from all the main political parties.

Given that the Minister and I are now not going to agree on this issue—I am grateful for her unintended but helpful preview earlier of her arguments in anticipation of this debate—I do not wish to detain your Lordships’ House unduly on this matter this evening. I have previously argued that this is a matter of principle: of the Ministry of Defence showing itself to be a good employer by standing solidly behind its people. I have rejected arguments that a duty of care standard would create a dangerous employment precedent and that it would itself give grounds for serving and veteran personnel to sue the Ministry of Defence.

However, I take away some comfort on behalf of those who are serving or who have served their country in uniform from the commitment by the Government to publish down the chain of command, to serving personnel and out through appropriate means to veteran personnel, a clear statement as to how the Bill when enacted will provide them with a measure of the protection that my amendment sought to put into law. Indeed, I was encouraged to read that in the other place yesterday, the new Minister for Defence People and Veterans, Mr Leo Docherty, said,

“We are aiming for a gold standard and are improving our provision all the time without the requirement for legislation.”—[Official Report, Commons, 27/4/21; col. 287.]

Clearly, there will be no legislation at this time, but I am delighted to hear the pledge of a gold standard. I will not be alone in watching for that gold standard to become manifest.

I will make two final points. First, on a point of principle, it is clearly an appropriate part of our national and political debate about foreign security and defence policy that opinion is often split along party-political lines. However, while that is appropriate, it is not acceptable or appropriate to extend that party division to the treatment of our service men and women and our veterans as people. For our service, on operations overseas and at home, our sworn allegiance is to the Crown and not to the Government of the day. Yes, of course, our elected Governments may well decree that such an operation is in the national interest, and members of the Armed Forces get on and do their duty, often laying their lives on the line on behalf of the nation in so doing. But party politics should not play any part in the way those personnel are treated as people. It has been thoroughly depressing, despite the widespread support for a duty of care standard, that the divisions in your Lordships’ House and in the other place have been along party lines. That is not the way to treat our service people and veterans, who serve the Crown and the people of this country.

Secondly, on a point of opportunity, later in the year the Armed Forces Bill will return to your Lordships’ House, as it does every five years. In the context of further strengthening the Armed Forces covenant, there is an opportunity to look again at issues of the treatment and care of our Armed Forces personnel, serving and veteran. I hope that we will take that opportunity and do so in the spirit of doing the right thing by those people and not just what the party Whips dictate. I believe we owe it to our service personnel to take party politics out of their treatment and care. If we are to seize that opportunity on a point of principle, I believe that difficult and divisive issues arising from operations overseas and in Northern Ireland could be satisfactorily addressed. We must not play party politics with the lives and well-being of those whose duty is to protect the security and interests of our country. I do not regard this matter as closed satisfactorily.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD) [V]
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The noble Lord, Lord Dannatt, has exhorted us not to play party politics with this issue, and I certainly have no wish to do so. Our duties to our service personnel are crucial. It is absolutely right that the MoD and, by extension, the Government, should be a good employer, and I agree with the noble Lord that that should be a matter of principle.

The issues that the noble Lord has sought to put on the agenda and which we have debated on several occasions now, to ensure legal, pastoral and mental health support for service personnel, are crucial. However, the amendment to the Bill was for a duty of care in very limited circumstance: that for service personnel involved in investigations or litigation arising from overseas operations. That is clearly appropriate within the confines of a narrowly defined Bill. However, the issues are much wider. I am therefore grateful that the noble Lord is not pressing this amendment to a Division this evening, because it would be wise to be able to have a fuller and well-informed debate on a duty of care to be considered in the context of the Armed Forces Bill.

Whether that then takes a statutory form will depend on negotiations and, as the noble Lord suggested, not necessarily party-political discussions, but an understanding of the likely consequences, intended and unintended, of such a duty of care. From these Benches, we absolutely agree with the noble Lord that it is vital that the MoD provides legal, pastoral, and mental health support for service personnel. We must get this issue right, and clearly it is appropriate that we do not divide the House again this evening, but that these issues come back in the next Session and that we keep raising them with the Minister.

Lord Tunnicliffe Portrait Lord Tunnicliffe (Lab) [V]
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My Lords, again, after another overwhelming majority in this House, the Government have rejected a duty of care standard for personnel and veterans who face investigations and litigations. This legislation is still very far from doing what it says on the tin: protecting British forces personnel serving overseas from vexatious litigation and shoddy investigations. It still fails to incorporate a duty of care for forces personnel who are faced with allegations, investigations, and litigation.

The gap was identified by veterans faced with investigation or litigation consistently saying that they are cut adrift by their chain of command and abandoned entirely by the MoD, with no legal, pastoral, or mental health support. Major Bob Campbell made that point so powerfully, from his own dreadful experience, in evidence to the Public Bill Committee in the other place. As the noble Lord, Lord Dannatt, has said,

“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.”—[Official Report, 26/4/21; col. 2109.]

The Government’s arguments have been weak against this amendment. They argued that they already provide this support, yet a gap has been clearly highlighted time and again. They also argued that it could lead to more troops being caught up in litigation—when all the Government need to do to avoid this is to fulfil their responsibilities—and that the duty of care amendment has drafting issues, when the Government have failed to produce their own version, as with the amendment tabled by my noble friend Lord Robertson.

With prorogation fast approaching, I accept that we should not divide on this amendment tonight. I will be entirely happy if the noble Lord, Lord Dannatt, withdraws his amendment for now, but I urge the Minister to think hard about this, as we will return to this issue in the Armed Forces Bill.

Baroness Goldie Portrait Baroness Goldie (Con)
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My Lords, I thank the noble Lord for his comments, and for his warm personal comments to me as an individual, which I appreciate. I also thank the noble Baroness, Lady Smith, and the noble Lord, Lord Tunnicliffe, for their contributions.

The noble Lord referred to this as a matter of principle. He may be surprised to hear me say that a duty of care is a very important matter of principle. On the principle, there is proximity between him and the Government, but the divergence of view is on the mechanism. Does doing this by statute makes things better for our Armed Forces personnel, or does such a statutory creation, through unintended consequences, inadvertently make things worse by creating scope for more litigation and possibly inhibiting operational command?

These are significant matters, and I sense that the noble Baroness, Lady Smith, recognises the need for caution—not in terms of what we all want, because I think there is a lot of agreement on that, but on the question of how we safely get there.

I am very grateful to the noble Lord, Lord Dannatt, for not pushing this to a Division this evening and recognising that there is merit in getting this Bill passed, but I warmly suggest to him that we continue our engagement and continue to explore whether we can find a route forward. I am a great believer in dialogue and discourse; when there is such obvious conjunction of opinion over what we want to try to achieve for our Armed Forces personnel and why, I like to think it might be possible to explore a safe road towards arriving at that destination—one which does not involve the hazards I have outlined.

I look forward to that continued engagement with the noble Lord and again express my appreciation to him for not moving this issue to a Division this evening.

Lord Dannatt Portrait Lord Dannatt (CB) [V]
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My Lords, I once again thank all noble Lords who have spoken or voted in support of my amendment on this important issue of a duty of care standard. It remains clear to me from what I have just heard from the Minister that there is no movement in the position taken by the Government on this. However, picking up a reference from the noble Lord, Lord Tunnicliffe, there must be no more Bob Campbells.

I am aware that this Session is nearing its end and that there is therefore a danger that, if I press this amendment to a further Division tonight, the Overseas Operations Bill, with its other important amendments now included, might be lost. For that purely practical and procedural reason—and recognising the moment for a tactical, if not a strategic, withdrawal—I will not seek to divide your Lordships’ House again on this amendment. Instead, I will watch for the promulgation of the gold standard of care for our serving and veteran personnel and will, in the spirit of the Minister’s comments just now, write to her to ask for an update on the development of that gold standard, and maintain the dialogue. Moreover, I note that we may return to this issue on the Armed Forces Bill later this year—in an open and frank way, I hope, and ideally not constrained by party politics. I beg leave to withdraw Motion B1.

Motion B1 withdrawn.
Motion B agreed.