Armed Forces Bill

Committee (2nd Day)

Clause 10 agreed.

Schedule 3 agreed.

Clause 11: Service police: complaints, misconduct etc

Amendment 38

38: Clause 11, page 22, line 33, leave out “and service police forces,” and insert “, service police forces and the tri-service serious crime unit,” Member’s explanatory statement This amendment would make consequential provision in connection with the new Clause proposed by Baroness Goldie to be inserted after Clause 11.

My Lords, I rise to speak to group 7, which comprises government Amendments 38 to 42, 45 to 47, and 67 and 68, in my name. I will speak also to Amendments 43, 44 and 66, in the names of the noble Lords, Lord Coaker, Lord Robertson of Port Ellen and Lord Thomas of Gresford, and the noble and learned Lord, Lord Thomas of Cwmgiedd.

I thought it would be helpful if I started with something of a scene setter on the report of the review conducted by Sir Richard Henriques. As noble Lords will be aware, on 13 October 2020, the Secretary of State announced the commissioning of a review by Sir Richard Henriques, to build upon, but not reopen, the recommendations of the service justice system review by His Honour Shaun Lyons and Sir Jon Murphy.

The aim was to ensure that, in relation to complex and serious allegations of wrongdoing against UK forces on overseas operations, defence has the most up-to-date and future-proof framework, skills and processes in place, and that improvements can be made where necessary. The review was to be forward looking and, while drawing on insights from the handling of allegations from recent operations, it was not to reconsider past investigative or prosecutorial decisions or to reopen historical cases.

I am pleased to say that Sir Richard submitted his report at the end of July 2021 and, as I had committed to do at Second Reading, we published it on 21 October, with a supporting Written Ministerial Statement, to enable your Lordships to have chance to consider it during the passage of the Armed Forces Bill. It goes without saying that we are very grateful for the comprehensive and considered work that Sir Richard has undertaken, and we particularly welcome his recognition of the need for a separate system of military justice. In summary, the report contains a total of 64 recommendations, approximately a third of which are focused on taking forward the establishment of a Defence Serious Crime Unit—DSCU—originally recommended by Sir Jon Murphy.

Will the noble Baroness give way for a moment? She admits that she is not implementing all the recommendations in the Henriques report in relation to the prosecution and then she said that the Government would consider them with utmost speed. I recognise all these wonderful phrases. Then she said that she would bring forward amendments when parliamentary time allows. That seems to me to kick the matter down the road. Some of his recommendations that are not part of this new clause need to be implemented as early as possible. I am sure the Minister will eventually find that “when parliamentary time allows” normally means in many years’ time.

I am just checking back to see what I actually read out. I was pointing out that this is roughly broken into three sectors. One is what we are taking forward today with the amendments. The second concerns four other specific recommendations that we are taking forward. Then the remaining recommendations, as I said, raise wider implications for policy, resourcing and legal issues. I said that these will be considered further by the department over the coming months and, where appropriate and necessary, legislation will be brought forward when parliamentary time allows.

That is not kicking the can down the road. That is to simply say to the noble Lord that we recognise that we still have research, inquiry and investigation to do in the department to understand the consequences of these recommendations from Henriques. We want to be clear about that but, equally, we are very positive about Sir Richard Henriques’ report. I said that our goal will always be to ensure that, in considering and taking forward work on his recommendations, we keep an eye on operational effectiveness and the swift delivery of fair and efficient justice for victims and offenders.

I hope that explains to the noble Lord why I cannot really go any further than that today. I certainly dispute his analogy of kicking the can down the road. This is a serious and substantial piece of work. We are prioritising the most important part, which we think will make a big difference to policing within the service justice system, and we are being canny about how we then progress the other bits of the report.

May I ask the Minister to be more specific and tell us which of his recommendations in relation to this specific part raise policy implications that will have to be considered over some time?

The noble Lord will have read the report and he will be in no doubt, I imagine, about both the extent and the complexity of many of the recommendations. I cannot be drawn into commenting on something where we are still doing the exploratory work to understand what the implications of the recommendations are. To reassure the noble Lord, as I said earlier, we are very positive about this report. It is a huge contribution to how we deal with justice and the service justice system. I beseech the noble Lord to exercise a little patience. I know that his natural interest in these matters, and the avenues available to him to pursue that interest, will ensure that I and the department are kept on our toes.

I was about to speak to Amendments 43, 44 and 66. I turn first to Amendment 43. That seeks to change the wording in government Amendment 42 on the duty of investigative independence for the defence serious crime unit. Government Amendment 42 works by updating the existing duty on the service police currently contained in Section 115A of the Armed Forces Act 2006. The government Amendment provides that the provost marshal for serious crime must

“seek to ensure that all investigations carried out by the tri-service serious crime unit are free from improper interference.”

The term “improper interference” is already defined in Section 115A. It includes any attempt by someone not in the service police to direct an investigation. Amendment 43 would amend the duty so that, rather than seek to ensure that investigations are carried out free from improper interference, the duty will be absolute, placing on the provost marshal a need to guarantee—“to ensure”—that the investigations are operationally independent.

It is important that we understand that this is not some idle exercise in semantics. As I have explained, the language in Amendment 42 is based on a similar duty in Section 115A of the Armed Forces Act 2006 that applies to the provost marshals for the three service police forces. In taking this approach, the Government are faithfully following recommendation 7 by Sir Richard Henriques; he importantly recommended that the new provost marshal owe the duty “on the same terms” as the existing duty.

Noble Lords who support the amendment are urging that we change the wording of this existing duty. The Government will resist that endeavour. The wording, which we have deliberately adopted, has been in place since the Armed Forces Act 2011 and has worked well in demonstrating the independence of the service police. If Sir Richard had doubts about it, one would have expected him to have said so. The Government would have concerns about, and would see risk in, changing the language in case it cast doubt on the operation of this provision in the past or in case it casts doubt on the investigative independence of the existing service police forces.

Noble Lords who support the amendment clearly prefer “ensure” to “seek to ensure”. However, it is in the nature of general duties of this kind that this drafting approach is taken. We see this frequently in statute. Although we would expect provost marshals to do everything they can to prevent interference, they do not have an absolute duty to “ensure” that there is no interference because, quite simply, it would be unrealistic to require them to foresee and forestall each and every attempt at interference. I will try to illustrate that. One of the unique features of the service police, compared to civilian police, is that they may be deployed in a war zone. We may find that operational requirements—for example, ensuring the safety of service personnel—legitimately need to take precedence over investigative priorities. The “seek to ensure” formulation is flexible enough to take account of that environment.

I have looked at Amendment 44 carefully. I do not believe that adding these further Henriques DSCU recommendations to the government amendment is necessary. As we set out in the ministerial Statement on 21 October, and as I have already touched on today, we will be incorporating these recommendations in the work already under way to establish the operating model for the DSCU. To reassure the noble Lord, Lord Robertson, I emphasise that this will include the provision of a victim and witness care unit, the establishment of a strategic policing board as part of the governance structure of the DSCU, and a reporting requirement to Parliament. I am happy to confirm that we are already working towards a DSCU by April 2022.

Although the MoD shares Sir Richard’s ambitions for an increased role for civilians in the DSCU, we assess that there may be legislative implications and restrictions regarding the appointment of a civilian deputy provost marshal. We will therefore give that recommendation further consideration.