Overseas Operations (Service Personnel and Veterans) Bill — House of Lords, 2021-04-13
Topic: Defense
Shami Chakrabarti (Labour, Centre-left): My Lords, I wish to offer whole-hearted support to Amendments 1 and 6 which were tabled by the noble Lord, Lord Thomas of Gresford, and my noble and learned friend Lord Falconer of Thoroton. The noble and learned Lord, Lord Hope of Craighead, also put his name to Amendment 1, and the noble and gallant Lords, Lord Boyce and Lord Dannatt, put their names to Amendment 6 First, I wish to say something about the statement to which the noble and learned Lord, Lord Mackay of Clashfern, has referred. I was going to comment on it later in the context of the new duty of care in Amendment 14, tabled by the noble Lord, Lord Dannatt, but as the noble and learned Lord, Lord Mackay, has taken the trouble to read the statement in full, and it is therefore no doubt fresh in the minds of noble Lords, perhaps this is a convenient moment to express two considerable concerns that I have in relation to the statement by the Secretary for Defence. The first is in relation to legal aid and the second is in relation to mental health support In relation to legal aid, there is a very serious ambiguity—perhaps not even an ambiguity, perhaps a straightforward gap—in the support that is being offered to service personnel in relation to legal aid. I refer your Lordships to the part of the passage that reads, "where the chain of command accepts funding responsibility, this is means-test exempt and therefore no personal contribution will be required. The Armed Forces Criminal Legal Aid Authority will act as a conduit for the provision of publicly funded legal representation on behalf of the chain of command including all aspects of the financial and case management, however"— I emphasise "however"— "if available evidence suggests the individual was doing something clearly outside the scope of their duty then it would not be appropriate for that person to receive this chain-of-command funding." So this non-means-tested automatic funding that does not require a personal contribution is not available to personnel and veterans facing the gravest peril from investigation and prosecution. This is hardly comfort to those to whom this Bill is supposed to be addressed. It is those who face the gravest allegations who principle suggests should have the greatest legal support, for it is those who are facing charges that they were doing something clearly outside the scope of their duty who are losing sleep at night as they may face dishonourable discharge and very serious criminality and consequence. This is the very group who are being let down and denied automatic non-means-tested legal provision. I have to disagree with the noble and learned Lord, Lord Mackay, about the Defence Secretary’s statement offering very much comfort at all to serving Armed Forces personnel or indeed veterans for the reason I set out: those in greatest jeopardy are left with least protection by way of legal aid Secondly, in relation to mental health provision, we know and the statement makes clear that to put someone in harm’s way in these circumstances is almost automatically to expose them to great jeopardy in relation to their mental health. Here is an ambiguity rather than a clear gap because at various points in the passages of the statement referring to mental health provision there are caveats about "where needed" "pathways in the community", "best practice" and "local population needs". I do not know what these words mean and no doubt the Minister will be able to clarify them in a moment, but to me it looks as if, subject to signposting and pathways, these people are being left, broadly speaking, to take their chances in a Cinderella part of the NHS. It does not seem clear from this statement that all serving personnel and veterans are given automatic mental health support. It is all "subject to clinical needs" or "subject to local population needs" and all of those caveats. That is what I would have said later about the need for the duty of care in the amendment tabled by the noble Lord, Lord Dannatt Returning to Amendments 1 and 6, Amendment 6 and the proposed new clause seem to me to address exactly what the Bill was supposed to: the problem of delayed, shoddy and, therefore, repeated investigations, which cause so much concern to members of the Armed Forces and veterans. Tackling this head-on, with some comprehensive statutory provision to push investigations to be timely and adequate, is a very good idea. Of course, the amendment has very distinguished and gallant supporters In relation to Amendment 1, respectfully, I could not disagree with the noble and learned Lord, Lord Mackay, more than I do. It replaces the presumption against prosecution with a very common-sense consideration of fair trials and whether they have been compromised by the passage of time. The noble and learned Lord, Lord Mackay, says that you cannot expect a prosecutor to make those determinations and that it is not appropriate, but this is what prosecutors up and down the land do every day. It is completely within, and absolutely core to, a prosecutor’s duty to consider whether it is possible, in light of the passage of time and the possible deterioration of evidence, for the accused to have a fair trial. This would be crucial to both the evidential test and, indeed, the public interest test, which all prosecutors have to consider. If that is the case—if these are normal prosecutorial factors—this might lead some noble Lords to ask why they should be put in the Bill. They should be because we have been told repeatedly during the passage of the Bill to date that a lot of what is required is comfort—clear statutory comfort to personnel and veterans that they will not be let down by the system and that they will be protected Putting this fair trial consideration, and including the passage of time, alongside the new provisions offered on investigations is a very good idea. As others—the noble Lord, Lord Thomas, in particular—have said, the five-year rebuttable presumption is rebuttable. Perhaps with the triple lock it is very difficult to rebut that presumption, but it will still leave concerns in the minds of personnel and veterans that a lengthy or late investigation may lead to a prosecution. It is so much better to protect people in the way offered by those who tabled these amendments. It is a far greater protection against late, shoddy and repeated investigations than the so-called triple lock that is causing so much concern. Normally, when employers and people seek to protect those who have been under especial pressure at work and in their service, it is support, not immunity, that is offered. That is the common-sense approach offered in these amendments.