Earl Attlee
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(8 years, 2 months ago)
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Earl Attlee
“( ) For subsection 1(b) substitute—“(b) 12 other persons (“lay members”).”( ) For subsection 2(a) substitute—“(a) 12 lay members; or”.”
Earl Attlee (Con)
My Lords, I remind the Committee that I still have an interest as I will be commissioned until October, when I have to retire.
At Second Reading, the noble Lord, Lord Thomas of Gresford, suggested that we needed to look at the composition and operation of the court martial. The Minister said that it would be a big change to alter these arrangements. However, that is why we have a quinquennial review. The MoD can quite easily change the court martial rules but bigger changes are a matter for us in Parliament.
One of the problems we have with some of the suggestions from the noble Lord, Lord Thomas of Gresford, is that we have very little idea of how either a civil jury or a court martial board works because research is illegal, except for certain criminal investigations. Therefore, the Minister cannot prove that the system is as good as we can make it, and the noble Lord, Lord Thomas of Gresford, cannot show that it is defective—we do not know how the system operates. The difficulty is particularly relevant to the noble Lord’s amendment on majority verdicts. The Committee needs to remember that the board of a court martial is not a jury; it is composed of officers and warrant officers superior in rank to the defendant. My Amendment 11 proposes to permit closely controlled research into how the board works. I envisage that this would take place soon after all normal appeal rights had been exhausted or were time-expired. Members of the board would not be told in advance that they would be contributing to the research, and there would have to be numerous other protections.
In Amendment 1, the noble Lord, Lord Thomas, proposes that the board of a court martial be composed of “all ranks”. Presumably, if the amended is accepted, court martial boards would provide that members must be at least one rank superior to the accused. Interestingly, I do not have a problem with his proposal, provided that the noble Lord recognises that he is moving away from a very select panel who have already been chosen as officers and warrant officers on the basis of a whole range of qualities that other ranks do not necessarily possess. If he wants to do that, I think we will need a military jury of 12. They will still understand the military context, which is surely the reason we have a military court martial, and the increased number I am suggesting would make up for any reduction in intellectual horsepower. I would suggest that on average a military jury could be of better quality and more suited to these cases than a civilian one, and therefore an all-ranks military jury could be just as reliable as a civil jury.
However, there are some snags. I suspect that the noble Lord feels that an all-ranks board would be more forgiving and understanding. I am not convinced. For instance, I fear that an all-ranks board could be swayed by the accused appearing to be a rotten soldier when military jury members are sure that they are not. The officers on the board of a court martial would put that to one side and study it with much more intellectual rigour. I suspect that the noble Lord would still have some officers on the board or the jury, but I cannot really envisage a junior NCO asking searching questions to test an officer’s position on a case, even though a large proportion would undoubtedly be able to do so. A warrant officer certainly would, which is why we already have them on the board.
Finally I turn to the noble Lord’s amendment concerning who determines the sentence. If we went for a military jury of 12, this would be merely a consequential change. Again, I suspect that the noble Lord, Lord Thomas, believes that the judge advocate would be more lenient. I have to tell the Committee that I have heard, although I should not have, that on one occasion the board of a court martial in Germany dealing with an assault case regretted not being able to consider a not-guilty verdict because the accused pleaded guilty. Nevertheless, the judge advocate was recommending quite severe penalties which the board had to resist strongly. In any case, complex though the matters are, the judge advocate tells the members of the board of the court martial what their options are. The sentence is internally reviewed and the case can then be taken to the court martial appeals court, so it is not clear to me what can go wrong.
Lastly, I do not have a view on the noble Lord’s suggestions about which offences should be triable only in a civilian court.
Lord Tunnicliffe (Lab)
My Lords, the first two groups for debate today discuss the generality of military law. The first group relates to how an individual is found guilty and sentenced, while the second group deals with the extent and scope of the body of military law. I make the point because I take a very different view about the extent to which we should consider changing the two groups, and hence these groups of amendments. We will come on to debate the second group, but I approach the first group from the point of view of the rights of the citizen who, as a member of the Armed Forces, has become the accused. I find the arguments put forward by the noble Lord, Lord Thomas of Gresford, persuasive. With that individual having committed an offence and gone into a process which is now so analogous to that of a civil court, I find quite strong the idea that the individual should have the right to a trial that is analogous to that in a civil court.
The amendments before us would, first, create more of a jury of the individual’s peers and, secondly, produce a voting system that is much closer to that of a Crown Court, which seeks unanimity. The proposals put by the noble Lord, Lord Thomas, are close to unanimity in their form. The reforms the noble Lord is suggesting would mean that the rights of the individual who has been accused would become increasingly similar to those of a normal civilian in a criminal case. Since 2006 we have developed the three bodies of law, brought them together and introduced civilian best practice—there is probably a better way of putting that, but it is essentially what we have done—so I find this next step very attractive.
As an alternative or as a supplement, the noble Earl, Lord Attlee, has suggested a minimum number of 12 on the board. That is an interesting suggestion which again is in step towards achieving similarity, and I would guess that he has suggested the figure on the basis that while such a revolutionary change might not appeal to the Government, there is also the idea of an inquiry to see how courts martial work to see if that could be a step towards reform.
Clearly, and I have sat on that side, these amendments will not work and there will be something wrong with them. However, that is irrelevant. What matters is: should we make steps in this direction using this quinquennial Act? We do it only every five years and I would find unconvincing the argument that it is not appropriate. I am putting a burden on the Government, today and perhaps in subsequent meetings and in writing, to argue the case for why we should not move in the general direction of these amendments and make the whole process for the defendant more analogous to that of a civil court.
Earl Attlee
My Lords, I am grateful to the Minister for the response to my Amendment 1A. On the point about maintaining discipline, I am not convinced that that would be a problem, especially if the other ranks were no lower than full corporal or equivalent, because they would have a stake in the maintenance of discipline as well. After all, a civilian jury is handling the same problem: they want to discipline other members of society for things that they have done wrong. Therefore, I do not find the maintenance of discipline—
Lord West of Spithead
It is very different from civil society. The whole structure of discipline within the military is, I am afraid, very different. That surely is one of the key points: it is people who really understand discipline, how it is applied and have knowledge of it over many years who are actually making judgments, because most of the cases relate to that disciplinary structure. I know that other amendments are looking at whether courts martial should cover other things, which might be another issue. However, in terms of discipline, civil society is very different from military society.
Earl Attlee
My Lords, I absolutely agree with the noble Lord—I almost said the noble and gallant Lord; he is noble and gallant, but not technically. My slight worry about the amendment proposed by the noble Lord, Lord Thomas, is that a full corporal would be less understanding and perhaps take a much tougher view than an officer. I am not convinced that the noble Lord is wrong on the argument of the maintenance of discipline, but I will leave the main attack to the noble Lord, Lord Thomas of Gresford, because he is far more capable than I am. I beg leave to withdraw my amendment.
Lord Thomas of Gresford
I am sure that the noble Lord, Lord West, would have added a keel-hauling or something of that nature.
I am grateful to the noble Lord, Lord Tunnicliffe, for his support for my amendments. No doubt we will have some fruitful discussion on a way forward. I agree with the noble Earl, Lord Attlee, that an investigation into how court martial panels deliberate would be apposite; it is a good suggestion. There are all sorts of problems around it, and if the public do not have confidence in the court martial system, which is what I believe and the thrust of what I am saying—that although I personally have confidence, the public do not—such an investigation would in one way or the other be very good.
However, the noble Earl may have misread my amendments. I am not looking for leniency. I have no reason to suppose that court martial panels that consisted of other ranks would be more lenient; I rather agree with him that they could well be tougher. What such panels would be is more understanding. They would appreciate things more. I know that the Armed Forces regard themselves as a family and I concede to what the noble Lord, Lord West, has said, but there is a gap in understanding between the other ranks and the officers of what motivates people. That is where an extended panel would be useful, helpful and more just. It is not about leniency at all. The noble Earl should not think that I am a particularly lenient person. I have sat as a judge and prosecuted many times, and leniency is certainly not a part of that.
I tend towards the thrust of the noble Earl’s comments, supported by the noble Lord, Lord West, that it is all about discipline. The fact is that if anyone is convicted at court martial of a serious offence, he is out and he loses his pension rights. It is not a question of discipline for a serious offence. As I indicated at the beginning, I have no objection to the court martial system in relation to Sections 1 to 39 of the 2006 Act, which cover mutiny, absence without leave, desertion and issues of that sort. But where I think the court martial system lacks public confidence is when it deals with other criminal offences which are normally dealt with in the Crown Court. The maintenance of discipline is not particularly apposite, in my experience. People who are convicted of serious offences, as I have said, are thrown out.
Many of the Minister’s remarks were addressed to the issue of sentencing. I do not believe that the sentences of the courts martial are particularly wayward, as we have a very good system of judge advocates who assist them in their deliberations. But the noble Earl will know that the current Judge Advocate-General has argued many times—as he did in 2006 before a committee of the House of Commons—that sentencing should be a matter for a professional judge, as judge advocates are, and not left to a panel of officers for whom it may well be their very first meeting with the criminal law in any context. They are not experts. They are appointed to a court martial board—perhaps the noble Lord, Lord West, has more experience of courts martial than most people, from all points of view—but most who sit on a panel do it perhaps once or twice. The president of the court is a more permanent official, of course, but a judge advocate is a professional judge who goes on training course after training course, sits in the Crown Court when not sitting as a judge advocate and has the fullest experience of sentencing and what is appropriate in a particular case. I do not suggest that he should sentence when uninformed himself, nor does the Judge Advocate-General, but that he should consult the members of the panel, listen to their views and take into account the maintenance of discipline, if that is what is required in the case.
Earl Attlee
My Lords, I am not quite sure why the panel should go outside the guidance of the judge advocate. For me, the noble Lord, Lord Thomas, has not produced a convincing case why it should do that. Why would it not adhere to the advice of the judge advocate because, as the noble Lord told the Committee, it is very good advice?
Lord Thomas of Gresford
I am not going to recount anecdotes but it is not necessary for the panel to follow the advice of the judge advocate who is sitting in a particular case if it chooses not to do so. Very often when a person is found guilty, the sentence may not be obvious. It may be a choice between various courses such as imprisonment, a sentence that does not involve imprisonment, or sometimes whether someone should go back to Colchester for retraining—a disciplinary approach—so there are different possibilities.
Earl Attlee
My Lords, surely the choice between prison and detention—in other words, “soldier on”—is a purely military one, which means that the officers on the panel are best placed to make that judgment of whether they can keep the serviceman in. In fact, some who go off for a period of detention turn out to be very good servicemen later on, as I am sure the noble Lord recognises. This is a purely military decision.
Lord Thomas of Gresford
I am not suggesting that the judge advocate should act entirely without the advice given to him by the panel. But where should the responsibility lie? That is the issue. I do not think that responsibility for sentencing—a highly complex and professional job for which people train for years, first as barristers or solicitors and then as judges—should be in the hands of people who have in all probability never been in a criminal court in their lives. Suddenly, they are faced with a particular problem and may have all sorts of views about it. Nor should it be thought that intellect and intelligence rest only with the officer class, as the noble Earl suggested. That is not necessarily so. Sitting on issues of fact, a panel composed across ranks would come to a better and safer conclusion which is more acceptable to the public. We cannot go on having demonstrations outside this House by present and retired members of the Armed Forces against the verdicts and findings of courts martial. You do not see that happening with Crown Courts but you see it with courts martial, and that cannot continue. I am concerned about the reputational damage to the services that such scenes show.
I will read all the detail of the Minister’s speech and come back to him about it but one or two points arose. For example, he stressed that a simple majority means that there is no need for a retrial. That may not be a very good thing. It may be that if a significant proportion of a panel hearing a case are not satisfied with the guilt of the defendant, there should be a retrial. The case should be put before the court and heard again. Retrials happen, not all that often, when juries are unable to reach a verdict in the Crown Court. They do not follow as of law; it is a question of the discretion of the prosecutor. I have stopped prosecutions after a jury had disagreed. “There is no need for a retrial” is not a mantra which sits very well with the Ministry of Defence.
Lord West of Spithead
My Lords, I strongly support Amendment 5. In the late 1980s, I was dragged from my destroyer by the First Sea Lord and tasked with doing a study into whether women should serve on the front line at sea. Being an ambitious officer, I went to see the First Sea Lord and asked him what result he wanted from that study—but he told me that I was to do a proper study. I spent six months doing it, and I learned a great deal. At the end of it, I concluded that women could serve in all jobs at sea, that there was no reason why they could not do that on the front line and that it was in the interests of the Navy. I thought that that would ruin my career—my wife said that I could run a well woman clinic if things went really wrong —but in fact it did not affect my career that badly.
What I failed to understand was the level of sexual predation that might result from this. I did talk with other navies around the world but I have say that I did not talk to the Army; it was all naval. I have been really quite shocked by the level of sexual predation which one is aware of now. It is necessary to expose what is happening to make it clear to people that things have to change. It is only by laying down the cases that have happened that this will be thrown into the public eye and the eye of the military, and then action can be taken. I am not so convinced by Amendment 6, but Amendment 5 makes a lot of sense.
Earl Attlee
My Lords, I am grateful to the noble Lord, Lord Touhig, for moving this amendment, which concerns a very serious and important issue. He mentioned Deepcut. I urge all Members of the Committee to get the Blake report on Deepcut, which was commissioned by the last Government, as we may have forgotten the background.
I am not convinced by the new clause proposed in Amendment 5, and I hope that the Minister shares that position. However, I would like to ask the Minister about service police records. We are all aware that there will be serial offenders who are posted from unit to unit. I would even dare to suggest that if a commanding officer knows that someone is “a bit dodgy” for one reason or another, they might rather get rid of them, and so send them off to another unit. Then, that same serviceperson becomes a problem in another unit. If the service police were carefully recording complaints against a serviceman—unit 1 gets a complaint; unit 2 gets a complaint—while it may be only slightly inappropriate conduct, there would be a record so that if something serious happens, and the serviceman already has a record of minor offences, you can be pretty sure that there is a problem. If someone has been serving for 15 years and there is not the slightest suggestion of a problem, you might take a slightly different view. My issue is this: are the service police recording every single complaint against a serviceman? I can assure the Committee that I have seen this in the reserves where we had a problem with a junior officer and it turned out that he had had a problem in another unit as well.
Members of the Committee have suggested that the Armed Forces have a problem. I do not deny that there is a problem, but my question for the Minister is this. Is it a bigger problem in the Armed Forces than it is in the civilian world, such as in industry, for instance?
Lord West of Spithead
I am sorry, but surely that has nothing to do with it. We have to get it right within the Armed Forces, have we not? It is only by exposing it that this can be dealt with. When I did my study, I was shocked at the level of this sort of thing going on in banks. I visited banks and large retail outlets and I was absolutely appalled and shocked by it. I must have been naive being stuck at sea. You might think that sailors are not naive, but my goodness me, it was quite a shock. Surely we have to look at what is right within the military.
Earl Attlee
Once again I absolutely agree with the noble Lord that we have to address our problems and deal with them vigorously. I want just to suggest that we ought to be able to compare how the Armed Forces do with the rest of industry. Although we have a problem that we want to and should deal with, the statistics may not actually be as bad as we think they are. We need to compare. That is not a reason for not doing anything about the problem; far from it.
Amendment 6 seeks to take the matter out of the hands of the commanding officer. I agree with this proposal, although I am at variance with the noble Lord, Lord West, on it. These matters are extremely difficult to determine in terms of what has been going on. As he suggested, commanding officers are not well equipped to deal with them. You might think that someone is a really good person, but then you are disappointed to find out that they are possibly offending in this way, so I do not have a problem with this proposal. I inherited a case of sexual assault and it was exceptionally difficult for me to deal with. I did not have to determine the matter, but I had to manage the aftermath. I heard the two sides of the argument and I was ill equipped to determine it. The Minister should consider Amendment 6 very carefully.
Baroness Gould of Potternewton
My Lords, the noble Earl, Lord Attlee, has made me think about two other instances that perhaps I should refer to. One is the fact that we are not talking about and cannot relate in any way to industry. People in the forces live in a closed environment. I shall give an example which has been made public. One woman was sent to an island with 27 men, and that woman was raped constantly on that island. What kind of situation is that? This has nothing to do with working in a bank or anywhere else; it is a completely different environment.
I am also reminded of the fact that the MoD has said that some 20 soldiers who are still serving in the Army are on the sex offenders register, and in each case they have been sent to a different unit, which reflects the point made earlier about people being transferred from one unit to another. That in itself seems an absolute disgrace. The department has also stated that a number of unknown people are in the Army who have been convicted but who are not on the sex offenders register, so they cannot be identified. This is not a good situation for men or women in the Armed Forces to have to put up with.
Earl Attlee
My Lords, the noble Baroness’s final point really follows on from what I was saying about the records of dodgy servicemen.
Earl Attlee
My Lords, I am not suggesting putting the information anywhere on the service record—in the Army Personnel Centre for instance. I am suggesting that the service police, once that they have had an allegation against a particular serviceman, should keep a file on that serviceman so that if they get a second complaint in a different location, that will have a bearing on the credibility of that second complaint.
Baroness Gould of Potternewton
The noble Earl has talked about the question of allegation, which is always a problem. Would he be prepared to say that a comprehensive list should be produced of the number of proven cases within the Armed Forces?
Viscount Slim (CB)
Perhaps I may remind your Lordships that when we were in a committee trying to put all three manuals of service law into one manual, many of us were worried that we were removing the power of the commanding officer in a number of instances. We were all thankful that the noble and gallant Lord, Lord Craig, sat in on just about every sitting of the committee. We saw the demeaning of a commanding officer taking place in some of the discussions.
There is no doubt that there is a certain wish among many politicians to civilianise the military, and I have been worried about that in one or two things that have been said today. If you do not think that a commanding officer is doing his job properly, then, as the Minister said, you lay more and more on him so that he does do his job properly. I myself dealt with a case where I was very perturbed by what was happening. I merely picked up the telephone and asked the special investigation services and the Military Police to be in my office at 10 o’clock the next morning, and the whole thing was sorted out.
I ask noble Lords to be very careful before more powers are taken away and the position of the commanding officer is demeaned. I put it that a commanding officer can do his job, and if the military do not think he is doing it properly, certain things that the noble Earl has described can be put in place.
Earl Attlee
My Lords, legally everyone has a commanding officer; someone somewhere is the commanding officer. The Minister said that commanding officers are given training. I agree that they are given a significant amount of training and that they have a significant amount of experience. The problem is that the powers of a commanding officer can be delegated to someone who has not had that training. Their commanding officer might be only a major and might be deployed to a desert island. That has happened to me. When I deployed on Operation TELIC, my commanding officer was the commanding officer of 1 UK Armoured Division and Signal Regiment. I never met him; I did not know him from Adam. I would suggest that many soldiers do not know their commanding officers from Adam because they normally deal with their officer commanding.
The Committee needs to understand the difficulties faced by a junior serviceman. In these situations they are often making a complaint about someone who is their immediate superior, and perhaps even in their chain of command. They might rustle up the courage to make a complaint, but when they find themselves being interviewed by the company sergeant major, who they might in any case have an issue with for other reasons, they may quickly withdraw the allegation even though it is well founded. I have to say that I am not absolutely convinced by the Minister’s response and we shall need to return to this issue at a later stage.
Lord Touhig
My Lords, we have had a good short debate and I am grateful to all noble Lords who have taken part, but I have to say to the noble Earl, Lord Howe, that I am so disappointed with his response. My noble friend Lady Gould spoke from a lifetime of experience of campaigning on matters of this kind, and some of the statistics that she afforded us are staggering. She mentioned that 20 soldiers are on the sex offenders register. Is that uploaded on to the MoD website, in which the noble Earl seems to put a great deal of faith? I do not know, so perhaps he can enlighten us.
My noble friend Lord West of Spithead spoke with the authority of experience as someone who has faced up to this, not quite realising what a big problem it is, and learned a great deal. He said that we have to change, and that is coming from someone who has served his country heroically and has taken great responsibility for the people under his command. He believes that we really do need to do something about this.
I could not improve on the remarks just made by the noble Earl, Lord Attlee. There will be inhibitions and people will not take things forward because of all sorts of consequences that they might face, so it simply is not good enough. In his earlier remarks he also asked the Minister whether the service police are recording all complaints. I hope that he will be able to tell us at some stage whether that is the case. The noble Baroness, Lady Jolly, was spot on. Parents need to be reassured. Later in Committee we will be considering issues affecting youngsters under the age of 18 joining the Armed Forces.
Earl Attlee
My Lords, I am grateful to the noble Lord for moving his amendment. I have to apologise to the Committee for not tabling a suitable amendment to raise this issue but what I have to say is related. In about 2011, I took out a mortgage on a house. Between me and my wife, we had the necessary financial resources to do it and it was not a problem. However, I wanted to take out term insurance—life insurance—so that if for any reason I passed away the mortgage would be paid off. The chances of my dying suddenly at that age were quite small, but I had to admit to the insurance company that I was still in the TA. That resulted in the premiums being unaffordable, and I did not take out that term insurance. The only reason why I did not take it out was because when I said I was in the TA, the premiums became unaffordable. Will the Minister write to me and tell me what the Government are doing about that situation, and whether it still obtains?
Lord Empey (UUP)
My Lords, I accept that this is a probing amendment. I think everyone would be of the view that discrimination should not take place against members of the Reserve Forces, but there have been examples where clearly it has, and we have just been given another.
In Northern Ireland we have substantial law on discrimination on religious or political grounds. Not that long ago, the identification of people as a member of the Armed Forces was sufficient to result in their being targeted and in many cases, unfortunately, assassinated. The Minister may not have the material at his disposal now but perhaps he might reflect and consult his colleagues in the Government on the implications of the publication of such material. It could result in the identification of units whose members had a particular religious or political persuasion.
So I support the principle, which I think is quite right, but I imagine that there could be some local nuances where the Reserve Forces are concerned. The Minister might care to consult with colleagues on that, since how the information might be acquired and handled may require slightly different treatment in Great Britain from that required in Northern Ireland.
Earl Howe
My Lords, I am most grateful to the noble Lord for raising this issue and I understand entirely why he felt it appropriate to do so. Nevertheless, I am not convinced at the moment that it is necessary or appropriate to set out a requirement in the Armed Forces Bill for commanding officers to collect and for the Ministry of Defence to publish the kinds of data that he has referred to.
We fully recognise and value the contribution of reservists and the need to ensure that their interests are properly protected. Part of that is making sure that their reserve service does not negatively affect their employment prospects. I completely accept that principle. But that is precisely why there is protection in place to ensure that reservists are not dismissed as a result of any duties or liabilities that they have to undertake; for example, as a result of being mobilised. This protection is provided by the Reserve Forces (Safeguard of Employment) Act 1985, Section 1 of which gives a reservist who is called out for reserve service the right to apply to his or her former employer to be reinstated after they return from mobilised service. In addition, Section 17 of the 1985 Act makes it a criminal offence for an employer to dismiss an employee solely or mainly by reason of any duties or liabilities that may arise as a result of being called out.
Further, Section 48 of the Defence Reform Act 2014 amended the Employment Rights Act 1996 to remove the current two-year qualifying period for claims of unfair dismissal where the reason for dismissal is or is primarily because the individual is a reservist. However, we are not aware of any cases having been brought as a result of this change. In addition, as proposed in the Reserves in the Future Force 2020: Valuable and Valued White Paper, we have established a website that allows reservists to alert the Ministry of Defence if they believe that they have been disadvantaged in employment as a result of their reserve service. These cases are of course investigated if the complainant agrees. There have been only 13 contacts from reservists since we established the website in July 2013. Those are the facts as they currently stand.
The amendment proposed by the noble Lord seeks to place a legal duty on commanding officers to collect statistics on how many reservists have reported employment discrimination on account of their reserve service and for the Ministry of Defence to collect and publish statistics on the number of complaints regarding discrimination. There are more than 300 reserve units in the UK. Given the very low incidence of reported complaints, I submit that a requirement of that kind would be disproportionate and burdensome.
However, there is another difficulty with the proposed amendment—it may be unnecessary for me to point this out, but I hope that noble Lords will forgive me for doing so. It refers to “discrimination” in the context of employment, but it is important to be clear that, despite the protections that I have referred to for reservists in the civilian workplace, being a reservist is not a “protected” characteristic under the Equality Act 2010, unlike characteristics such as age, disability, race, religion or belief, sex or sexual orientation. I would like to make a further point. It does not follow that an allegation of discrimination means that an individual has been discriminated against. One need only think of a simple example, such as someone who says that they have not been promoted because of their reservist status and that that needs investigation. Clearly when an allegation like that is made, it is quite a complex situation. While on the face of it the amendment appears simple, I suggest that there are significant difficulties below the surface.
Our approach, which I hope that noble Lords will agree with, is to develop open relationships with employers and to encourage and support reservists in their individual relationships with their employers. We encourage reservists to raise employer issues with their chain of command and to resolve issues through the improved relationship management process that we have put in place. I would like to think that those processes have borne fruit, in the light of the very small number of contacts with the website that I referred to earlier. Good relationships with employers are absolutely central to the Government’s programme for the Reserve Forces, but I believe that our resources in this area are better spent in strengthening these relationships than in creating and fuelling a reporting process.
The improved relationship with employers is increasingly evident from the number signing the Armed Forces covenant and the very strong examples of those employers up and down the country who have been recognised for their support to our Armed Forces. The issue raised by my noble friend Lord Attlee is slightly different, as I am sure he recognises, and I undertake to write to him about it.
I hope that the Committee will understand why I cannot support the proposal that the Bill should be amended. For that reason I hope that the noble Lord will agree to withdraw the amendment.
Earl Attlee
My Lords, when the noble Lord, Lord Touhig, moved his amendment, he said that it was a probing amendment. However, I support the general position and tone of my noble friend’s response. He mentioned the Reserve Forces (Safeguard of Employment) Act. I must say that post-Operation TELIC, the MoD’s support for reservists who found themselves in difficulties was absolutely pathetic. Reservists were on their own. I used to fondly think that if I found myself in difficulty I would have the big bad main-building MoD on my side. The reality was that reservists got no support from the Ministry of Defence at all. They had the protection of the legislation, but they had to fight the case on their own. Whereas if the MoD had rung up to say, “This is the Ministry of Defence, why aren’t you re-engaging the reservists?”, it would have saved an awful lot of difficulty. But the MoD was, frankly, pathetic. It is not the Minister’s fault, but that is what happened after TELIC.
Earl Attlee
My Lords, it was on the ability of all reservists to get their jobs back. It was not well handled by the MoD at the time. Let us just hope that we do not have to mobilise large numbers of reservists. We should remember that a lot of them had not volunteered to be mobilised, so it was not what they expected.
Lord Empey
My Lords, in the event of the noble Lord, Lord Touhig, bringing back an amendment at a later stage, I wonder whether the Minister would agree to consult his colleagues in the Northern Ireland Office on the specific issue that I raised.
Earl Attlee
My Lords, I agree with everything that the noble Lords have said. I believe that Her Majesty’s Armed Forces have been engaged in combat operations, as opposed to peacekeeping operations, for far too long. You can tolerate a certain amount of that, but when a difficult combat operation goes on for years and years it is bound to cause very serious mental problems among our servicemen. Like many noble Lords, I think that this is going to bite us very hard in the future.
Lord Empey
Does the noble Earl agree that we in the UK have a reasonably well documented example of that? Among members of the Royal Ulster Constabulary, who were effectively in a combat situation both in work and at home for many years, after the Troubles there was a substantial rise in the number of mental health issues that were presented. I am sure that the department would have those statistics available, and there might be some interesting things there.
Lord Brown of Eaton-under-Heywood
I am glad to have been asked that question because it gives me the opportunity of saying this. Combat immunity is not of relevance here in respect of the convention claims. It is highly relevant, and was the answer sought to be advanced by the ministry, to the negligence claims. What was held, as my noble and learned friend said, by not four but five members of the court was that it did not extend to the peacekeeping mission that was relevant to the negligence claims.
I would not deal with the negligence part of the claims by extending the scope of combat immunity. I would deal with those parts, as I said at Second Reading, by legislating under Section 2(2) of the Crown Proceedings (Armed Forces) Act which enables one, in effect, to disapply tort law in respect of our Armed Forces. However, I would give them the compensation that the noble Lord, Lord Tunnicliffe, is understandably intent that they should have by making sure that they do not lose out by getting less under the pension scheme than they would if there were successful common law claims. I would give them the money on a no-fault liability basis because they have incurred these ghastly injuries serving the national interest in combat abroad.
However, I regard that as having nothing whatever to do with the limited scope of this amendment, which is simply to disapply the relevant part of the convention to that aspect of these claims. It would disapply Articles 2 and 3 so that, if necessary, it could be tested in Strasbourg whether the majority in the court in Smith needed to go as far as they did in saying that Article 2 applied. As the noble and learned Lord, Lord Mackay, said, I believe that the court would say that the margin of appreciation here allows us not to apply Articles 2 and 3 in this sensitive situation where Armed Forces are serving in combat abroad.
Earl Attlee
My Lords, I strongly support my noble and learned friend and his noble and gallant supporters. I have deployed on two military operations, in addition to aid operations. One was peacekeeping and one was war-fighting but for our purposes there was no difference because a peacekeeping operation can deteriorate into a war-fighting or combat operation.
On both operations I willingly put my life, limb and security at the disposal of Her Majesty. “Her Majesty” might sound an old-fashioned term but to me it is all-encompassing. It means the nation, its citizens, the Government, the CDS—who at the time was the noble and gallant Lord, Lord Boyce—and the chain of command.
In return, the nation regards such service as highly commendable. If I did not come back or I was badly injured, it would be jolly hard luck. Statistically, it was actually unlikely. Whenever you deploy on military operations, it is a sad fact that it is not likely that everyone is going to come back intact, and you have to accept that if you are prepared to authorise military action. Obviously, my family would mourn my demise, but what I would not have wanted is the chain of command and the staff wasting their time on inquiries or litigation about my bad luck when they are trying to prosecute a campaign and to secure the absolute minimum number of casualties overall. I suspect that all of the cause célèbre cases that I have read about have been either misreported or misleadingly reported in order to make a good story. In some cases, I know this to be the case because at the relevant time I was in the headquarters handling the issue. If noble Lords want to be briefed privately on that, I am quite willing to do so.
It seems to me that there are several difficulties with involving the legal system when there appears to be a failure in an operation, the planning of it, the resourcing of it or the training for it. The first issue I am certain about because I have seen it myself. Sadly, in a few cases the deceased or those around him or her are the authors of their own misfortune. Sometimes, there is a failure to adhere to the training. I have read news reports where I have had to conclude that for one reason or another the training was not adhered to. Obviously, the MoD is not going to use any of these defences against a claim or misleading news report. We would be shocked if it did so, and I think that some Members of the Committee are a little bit shocked that I am taking this line.
The second issue is that there may be a very good technical reason why some equipment is not used. There could be intelligence to suggest that it is not a good idea. For instance, the capability could have been compromised in some way or using that equipment might be of benefit to opponents. There might be a military judgment to be made about which technology or capability is the highest priority to deploy to theatre. The Committee needs to recognise that in an operation logistic capacity is neither infinite nor perfect.
In about May or June 2003, I was running around in Basra province in southern Iraq in a soft-skin Land Rover. I was heavily armed with a Browning 9 millimetre pistol. My body armour was somewhere in the back of the Land Rover and I am reasonably confident that my driver had his SA80 rifle. It was a benign environment and I did not need protected mobility. But then the situation changed for reasons that the useless Chilcot inquiry may eventually tell us. Following tours had to adopt a much higher state of readiness and needed better equipment, and this was not anticipatable.
The final difficulty is morale. It does not improve morale anywhere in defence to have to endure all this completely unfair and inaccurate criticism. For instance, imagine that you are an expert in the DSTL and read a report suggesting that the very clever equipment you are developing and deploying is in some way inadequate. I have made this point before and I will make it again. I think that trying to pin responsibility for an individual fatality arising from Operation TELIC 1 against the then Labour defence Ministers is outrageous. There may well be questions about the legality, necessity, grand strategy and post-conflict planning of TELIC 1. However, the operation was militarily brilliant. We are one of the few nations in the world that could have undertaken it at all. Most nations cannot even get close to what we can do. We deployed a division out of theatre. We helped to get a regime to collapse at the cost of a mercifully low number of casualties, tragic though they were. The reality of military operations is that one never has all the training or equipment that one would desire or that could be made available in time. What you need is far better training and equipment than your opponent has, and that is exactly what happened on Operation TELIC 1. Noble Lords should make no mistake: in a deployed headquarters every fatality hurts like hell. I know; I have been there.
My final point is that there is a perverse inverse law that the level of scrutiny attached to each fatality on an operation is inversely proportionate to the number of fatalities taken. Proof of this is that if we had taken 1,000 fatalities on Operation TELIC 1, would anyone be worried about the ones who are currently a cause célèbre? I think that the Committee knows the answer.
Earl Howe
My Lords, I am extremely grateful to my noble and learned friend Lord Mackay for having given the Committee the opportunity to examine the set of issues that are of fundamental importance for our Armed Forces and indeed for the Government. As my noble and learned friend explained, the amendment would end the application of the Human Rights Act 1998 to service personnel engaged in military operations outside the United Kingdom. I have very great sympathy with the intention behind the amendment. Recent legal developments have raised justifiable fears in many quarters that service personnel could be unwilling in future to take the rapid and high-risk decisions essential for operational effectiveness, due to the fear of litigation. The Government fully believe that international humanitarian law, as embodied in the Geneva conventions, should have primacy over human rights law in the field of armed conflict. Addressing that issue was a manifesto commitment for this Government.
None the less, for reasons that I shall explain, I cannot invite the Committee to press this amendment. The Government are concerned about and determined to address the risks arising from developments in international human rights law, which have the potential to impose ever greater constraints on the ability of the Armed Forces and the MoD to operate effectively while defending the UK and its interests. As pledged in my party’s manifesto, the Government are absolutely committed to replacing the Human Rights Act, and will be consulting in due course on our proposals for a Bill of Rights. It is only right that that consultation should include the important question of how the Bill of Rights should apply outside the UK, and will ensure that all aspects of the change are properly and fully considered, not least its implications for the rights of our own Armed Forces, which would be affected by this measure. So I suggest that it is in the broader context of a Bill of Rights that these important issues are best considered. We are working closely with the Ministry of Justice as it develops its proposals.
I was very grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for his intervention. When we speak about combat immunity, there are two issues that need to be distinguished, as he made clear. There are negligence claims and common law, where service personnel believe that the MoD or the Government have put them at undue risk—for example, due to decisions on procurements—and then there are human rights claims under the Human Rights Act or the ECHR, which are claims against the MoD brought either by service personnel in respect of injury or death or by civilians.
On the first of those categories, the negligence claims, I was grateful for the comments of the noble Lord, Lord West. We are concerned that the Smith judgment has left the position on liability for events on the battlefield unclear. That is why we are considering legislation to bring about the necessary clarity. The noble Lord, Lord Tunnicliffe, asked me what harm could result from the Smith case. My response is that, as my noble and learned friend explained, in the Smith case—with no disrespect to the noble and learned Lord, Lord Hope—there were such strong differences of opinion between members of the Supreme Court that it is reasonable for thought to be given to legislating.
We recognise that there is a concern about UK court decisions eroding the doctrine of combat immunity, which prevents legal claims being brought against the Government for negligence in the course of duty in armed conflict. However, my noble and learned friend Lord Mackay has indicated that his amendment would make provision only with respect to the second category that I mentioned, injury or death of members of the Armed Forces. It would not deal at all with claims brought against the MoD under human rights law in respect of the actions of members of the Armed Forces—for example, by Iraqi nationals. The Government are concerned about both classes of case, and our ongoing work relates to both.
I should make clear that my noble and learned friend’s amendment relates to human rights claims and those claims brought under the ECHR. We are concerned about both types of case and are examining them in the context of our work on the Bill of Rights.
The noble and gallant Lord, Lord Craig, asked, in effect, why we could not legislate more speedily, perhaps through this Bill. I am as keen to make speed with this as he is but, alas, we are not quite yet ready. There are a number of areas that we are looking into, including examining different areas of legislation where changes could be made and what more we could do to support our Armed Forces personnel and their families. Work is under way, and we will be announcing further detail in due course.
I am most grateful to my noble and learned friend for raising this important issue today. It has been a truly excellent debate. I am confident that when we come to introduce our proposals for the Bill of Rights, we will address effectively the problem that is rightly of concern to him, and we will do so in the context of a much needed and thorough overhaul of our domestic human rights law. On that basis, I hope that my noble and learned friend will agree to withdraw his amendment.