My Lords, I have considerable sympathy with what lies behind the amendment moved by the noble Lord, Lord Dannatt, and supported by the noble and gallant Lord, Lord Stirrup. I cannot help thinking that it is a great pity that it was felt necessary to table the amendment at all. The reason for it, however, is the way in which we as parliamentarians and the law generally have let the military down; that is, after all, what this legislation as a whole is about. For there to be an obligation to state a duty of care standard of the sort envisaged by the amendment is a woeful acknowledgement of that. I do not think there is any equivalent in relation to our duty towards the fire brigade, the police or the NHS. Things have come to a pretty poor pass where we as a House can find so much to sympathise with in this amendment.
However, a statement to the House about the duty of care and how the standard of that duty should be reflected can do no more than state what the law is. As the noble Lord, Lord Dodds, just pointed out, there are specific provisions to deal with litigation and investigation, civil as well as criminal, and judicial reviews. But all a statement would do was say what the state of the law was. Depending on the passage of this Bill, there may be some, little or no change to the existing state of the law. What has repeatedly come through our debates is what lies behind so much of the understandable discontent: these repeated and late investigations.
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Although the Bill is divided between criminal prosecutions and civil actions, the reality is that there is a blurring of the two, because the investigative duty arising from the Human Rights Act—there is no general duty to investigate in connection with a cause of action—is what precipitated many of the investigations, such as IHAT, where there were vexatious claims and even preliminary investigations leading to potential prosecutions. So it is not quite as divided as it might be. Whatever statement came before the House, it could say only, “Since there is an obligation in overseas territories to comply with the convention, if an allegation is made against a service person, there may well be an obligation to investigate”. That is what the Human
Rights Act jurisprudence suggests. That means all the problems with investigations that have been encountered will continue, and it will continue to be the case even if the Bill is passed.
Where, unusually, I entirely agree with the noble Baroness, Lady Chakrabarti, is that I think something can be done about investigations, which is that the Ministry of Defence and those responsible for investigations can be better equipped and prepared for them. IHAT was such a failure because those charged with investigation were underequipped and had little knowledge of the theatre, the language, the culture or anything of that sort. If there are to be repeated investigations, they should be much speedier and better done.
So I am very sympathetic to the amendment but wonder how much it will actually achieve. Before I conclude, I refer to just one particular aspect of it, which concerns the principle of combat immunity. The Ministry of Defence has been asked a number of times to clarify its position on combat immunity. It used to be a common law concept. Quite understandably, the courts decided that they were unable to decide whether, in the heat of battle, A had been disproportionate in his or her response to B’s activities—that this was a field which was really not justiciable. However, following the decision in Smith v the Ministry of Defence, referred to earlier by the noble and learned Lord, Lord Hope, there is some doubt about the question of combat immunity, and the case was, by a majority, not struck out. The case arose out of claims of damage in respect of Snatch Land Rovers, but presumably it would acquire to in any allegation of inadequate equipment provided to our forces.
I ask the Minister to tell the Committee precisely what the Government’s position is on combat immunity. Of course, if this amendment is successful, the Government will have to do so in any event. I am very sympathetic to the amendment; I am sorry that it is necessary, and I repeat my observation that the reason it is necessary is that we as Parliament and the judges, I am afraid, have failed the military.