Corporate Manslaughter and Corporate Homicide Bill

I have spoken at some length on the question of exempting the military in certain circumstances. The amendment recognises the case for exemption but proposes to narrow it in key respects. Many of the general points that I have made about exempting the military are equally applicable in this context. The current exemption for the Armed Forces in relation to operations, or when engaged in activities of a war-like nature, recognises the inherent nature of conflict and combat, where decisions have to be taken quickly, often with imperfect information and sometimes where all alternatives are unpalatable. The civil courts have already recognised that they are not in an appropriate position to assess questions about how military objectives were obtained. As I mentioned in our previous debate, this takes the form of a combat immunity, a consequence of which is that the Bill does not exempt activities in this respect, as they are not covered by a duty of care. That is relevant here, too, because it limits the effect of this amendment. It would not bring matters of training and equipment within the scope of the offence because no relevant duty of care is owed in respect of the sort of combat circumstances covered by the exemption as it stands. To bring those sorts of circumstances within the scope of the offence would mean not only removing this exemption from the Bill, but also creating a new duty of care. That would represent a far more extensive change in the law than we are currently considering, even taking into account the lifting of Crown immunity, and it would involve much wider questions about where the Armed Forces should owe duties of care. The Bill is not an appropriate vehicle for that sort of debate, and it is a route that the Government would be very reluctant to go down in any event. Nevertheless, I appreciate the importance of this issue and wish to respond to the concerns it raises. We have considered carefully, in consultation with the Ministry of Defence, the extent to which the military should be exempt from the offence. There are very clear concerns that seeking to apply corporate manslaughter laws to combat situations would be onerous and would threaten judgments of commanding officers who are trying to do the best they can in the circumstances. Nor do we think it would be possible sensibly to divide operational judgments into those that might be subject to corporate manslaughter laws and those that are not. In the case of this amendment, who is to decide what constitutes ““adequate training””? Would the Armed Forces risk liability if a commanding officer ordered soldiers to carry out dangerous activities because, in the heat of battle, that was the only recourse available to him, even though they might not have had the ideal equipment or training? There might be similar difficulties with judging whether there had been ““failure to provide reinforcements””? Might a divisional commander be entitled to refuse to carry out a potentially battle-winning strike unless he is promised an array of reinforcements? Operational front-line commanders must retain the ability to make appropriate operational decisions based on dynamic risk assessment, and it would be unduly onerous to impose liability in these sorts of circumstance. The death of Sergeant Steven Roberts in Iraq, in circumstances in which he had been required to hand in his body armour, was a tragedy and I express my deepest sympathy to his family and others who loved him. That case has been fully investigated and was subject to a coroner’s inquest that delivered a narrative verdict in December. This ensured a full and public examination of the circumstances of his death and the factors surrounding it. That is of course important, but we do not believe that the criminal law can simply be superimposed in these circumstances. That would bring the way in which the Armed Forces prepared for combat operations, and supplied and deployed their forces in the field, within the ambit of the criminal law. This risks placing a heavy new onus on senior commanders and distorting operational priorities by placing a particular emphasis on one set of factors. Combat operations cannot be susceptible to this if we wish to retain our full operational effectiveness. These are enormously difficult circumstances, and each death will be a tragedy. Drawing a line that excludes any of them from the ambit of the offence will inevitably appear harsh and unjust. Lifting Crown immunity would bring the criminal law into the workings of the Government, including the Ministry of Defence, to a very considerable extent. But we are clear that the discharge of public responsibilities, including the way in which combat operations are prepared for and waged, are not areas where the criminal law ought to apply. I therefore urge the noble Lord, Lord Hunt, to withdraw his amendment.