My Lords, it is a pleasure to follow the noble Lord, Lord Lancaster of Kimbolton. He brings a valuable perspective to our deliberations. I welcome his contribution and agree with some of it, as will become apparent.
My position on this Bill is essentially that so clearly set out by my noble and learned friend Lord Falconer of Thoroton in his speech on the previous group. I agree with him that this group contains a range of amendments that are aimed at the true source of the problem that the Government have in their sights. I agree with the points that he made, so there will be little point in repeating them. However, to repeat what I said at Second Reading,
“the Bill does not resolve the problem of repeated and prolonged investigations because the Government have chosen to frame the issue as a legal problem, when the truth is that it is a problem about the timeliness and quality of investigations.”—[Official Report, 20/1/21; col. 1207.]
I begin the meat of my contribution with reference to the letter that we received last week from the Minister—for whom I share the regard expressed by others in this debate; I thank her for the letter—seven paragraphs of which sought to persuade us that this Bill would not be improved by specifically addressing investigations and implied that doing so might be counterproductive and unhelpful. The letter even employed the word “danger”; I infer from that that she thought it might be dangerous too. Expecting that the content of her letter will serve as a template for her response to this set of amendments, I want to test its argument.
As we have heard, few criminal prosecutions arising from the wars in Iraq and Afghanistan or from recent overseas operations have in fact been brought against service personnel. None, as far as I am aware, is in the pipeline or anticipated. I encourage the noble Baroness to point to any criminal case that should not have been pursued, if she can identify one, as I suspect she can. Given that context, it is heroic on the Government’s part—to say the least—to attempt to justify the need for legislation against the legal process of prosecution when no history of unjustified prosecutions exists.
This is the more so because, when Ministers are asked what justifies this legislation, their consistent response is to point to a cycle of unjustified investigations into unjustified allegations against soldiers. This Bill will not stop that. In her letter of 26 February, the noble Baroness wisely does not claim that it will. Rather, while expressly accepting the need for continued improvement in investigations—I accept that significant improvements have been made—she sets out an argument for how the Bill might eventually improve them, to encourage those of us who are more inclined to argue for investigation legislation and prosecution legislation. This seems a rather odd argument, so I quote it. She says that
“while the Bill does not contain measures that would have a direct impact on the conduct of investigations … we have included measures in the Bill that may have an indirect impact.”
Surely it is better to legislate for steps that will directly impact the problem than to hope that, indirectly or incidentally, measures in the Bill, while not solving the problem, might in the course of time dilute it.
While I have great respect for the noble Baroness, as I have said, I regret that the paragraphs headed “criminal measures and investigations” in her letter do not provide a justification for this legislation, devoid as it is of any overt attempt to address the real problem. It is no answer to this criticism that, for further improvements
to the investigative and prosecutorial process, we should wait for the outcome of the review by Sir Richard Henriques to
“complement this Bill in further reducing the uncertainty for Service personnel about investigations.”
In any case, is there not already a service report from last February, elements of which could have been included here and are not?
Further, it is difficult to be persuaded given what the Minister Johnny Mercer said in a Guardian podcast in 2019. This is not just any Minister—he is responsible for the passage of this Bill. Comprehensively, he set out the problems in that podcast, saying that
“one of the biggest problems … was the military’s inability to investigate itself … and the standard of those investigations … If those investigations were done properly … we probably wouldn’t be here today.”
When the noble Baroness responds, could she address the content of that podcast? At Second Reading I sought to tempt her to do so, but she did not. Can she explain why an explanation of the cause of the problem that was good enough for Johnny Mercer in 2019 should be ignored by your Lordships’ House today, and can she justify those seven paragraphs of her letter?
Also, the failings and imposition of shoddy further investigations on earlier investigations were not brought about in many circumstances by those set out in the letter from the noble Baroness; they were brought about by the arguments put forward in litigation that had its roots in the wars in Iraq and Afghanistan, where it was successfully argued that insufficient inquiries had been made into credible allegations of abuse at the relevant time. Had there been competent criminal inquiries within a reasonable period of time of the allegations, it surely would have been much more likely that the victims would have received justice and those who had been unfairly accused would have been fully exonerated within a reasonable period of the allegations.
This is a view held by many current and former members of the Armed Forces and one of the many reasons, as I understand it, why Judge Advocate-General Jeff Blackett has expressed serious concerns about the Bill. The Director of Service Prosecutions, essentially agreeing with the 2019 version of Johnny Mercer’s analysis, recognised that it is the lack of prompt investigations at the time that lies at the heart of the issue.
If the Government are not going to engage with the real problem when it is obvious and identified by a diverse group of people with expertise and experience in this area, it is the duty of your Lordships’ House to amend the Bill to do just that. That is what these amendments seek to do: they are designed to ensure prompt, independent investigations into criminal allegations. Their absence from the Bill is fatal to its purpose. The acceptance of these amendments is in the interests of victims and of our military. The experience that too many of them have gone through compels us to put in place a system where complaints are investigated properly and dealt with within a reasonable amount of time. That ought to be our priority.