My Lords, in seeking to move Amendment 31, I pay tribute to the tireless and detailed way in which the Minister and the noble and learned Lord, Lord Stewart of Dirleton, have been responding to the extensive and detailed sequence of amendments to this Bill in the last two days in Committee.
That the list of proposed amendments is so lengthy indicates a considerable degree of concern about the Bill as drafted, but my concern does not extend as far as the concerns of those who would wish to see this Bill thrown out completely. Many noble Lords, myself among them, have been arguing for some years to have a Bill introduced that would provide better protection for serving and veteran soldiers, sailors, airmen and marines from vexatious, extensive and recurrent investigations arising from their actions in past operations. This Bill seeks to meet that aim, so I do not want to see it fail, but I do want to see it meet that honourable objective more effectively.
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Amendment 31 sets out to do this by seeking to require that the Ministry of Defence identifies a new duty of care as described in the explanatory statement to this amendment. I raised this aspiration in my speech on Second Reading in your Lordships’ House on 20 January. I believe a clearly stated duty of care has important benefits not only for individual service people, be they serving or veteran, but for the Ministry of Defence itself. If the MoD wants to see this Bill through to Royal Assent, the opportunity Amendment 31 provides is to state in clear and unequivocal terms how it will support better the individual service man or woman. Here is the opportunity to spell out what support will be given to a serviceperson under investigation. How often can they be questioned and over what time period? What legal, pastoral and mental health assistance should be afforded a person under investigation? How should a person under investigation be regarded by
the chain of command? These questions and many more can be addressed in a comprehensive statement of the duty of care. Moreover, the amendment would require the Secretary of State, in each calendar year, to prepare a duty of care report and lay a copy of that report before Parliament.
With the greatest respect to the Minister, I have heard the argument made in challenge of some other amendments, that things have changed for the better in recent years. In some areas, that may be so, but not in this area. Were that so, the treatment of Major Bob Campbell would not have dragged on from 2003 until last year. I have raised his case, which the noble Lord, Lord Tunnicliffe, has just referred to, in your Lordships’ House on more than one occasion. He and his two colleagues are broken men. When asked whether the MoD had offered any support when he was facing the eight criminal investigations that he was subjected to, Major Campbell said:
“No, there was none … we were told just not to think about it and to get on with stuff.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 6/10/20; col. 24.]
That is just not good enough, and the MoD must accept that.
It is not just concerned members of this House who want to see change. General Sir Nick Parker, a former Commander in Chief Land Command, has said:
“one of the key things that we have to do is to produce mechanisms that establish a really effective duty of care for those who are placed under the spotlight by malicious claims. Of course, if you deal with these things quickly, that will help, but anything that drags out, even for two or three years, puts individuals under massive pressure. If the chain of command does not have the ability to look after them, because it somehow distances itself from them, then we have got to address that as well.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 96.]
This amendment will address those issues.
Time is short, and other noble Lords wish to speak to this amendment, but I will make one further point; again, it is one I raised on Second Reading. It relates to the sensible presumption against prosecution set out in Part 1 of the Bill, which, if understood correctly, is intrinsically related to this issue of duty of care. It has been argued that this presumption against prosecution is not needed because there are very few prosecutions. But that is not the point. The point is that there have been an outrageous number of allegations and investigations that have proved to be groundless, resulting, quite properly, in very few prosecutions. It is well recorded that a virtual industry to pillory British soldiers was set up following the unpopular intervention in Iraq in 2003. As the present Secretary of State for Defence has said, for example:
“In 2004, Phil Shiner, a lawyer, went fishing. He fished for stories, he fished for victims and he fished for terrorists.”—[Official Report, Commons, 23/9/20; col. 984.]
A carefully thought through and properly worded statement of the duty of care would prevent such outrageous behaviour.
I have a final word on this understanding of a presumption not to prosecute. It will help investigators and possible victims to get to the truth, because soldiers will know that they can answer questions designed to establish the facts of the matter without fearing that
the questioning will inexorably lead to a prosecution. Of course, if there is new and compelling evidence against someone, that is a different matter—but most investigations merely set out to establish the facts of an incident. That is a right and proper process, which in the majority of cases should be conducted free from the shadow of prosecution. I beg to move.