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Overseas Operations (Service Personnel and Veterans) Bill

My Lords, I shall say something about Amendments 1 and 6. Before I do, I draw attention to a ministerial Statement that has been put in the Library about overseas operations in which the MoD indicates its support for service personnel in these situations. The Statement—I hope your Lordships have access to a copy of it—says that the Overseas Operations Bill was introduced

“to provide greater legal protections to Armed Forces personnel and veterans serving on military operations overseas. The Bill would provide a better … legal framework for dealing with allegations and claims arising from future overseas operations and recognising the unique burden and pressures placed on our service personnel.

As part of the debate on this Bill, there has rightly been a focus on the support which MoD provides to those personnel who may find themselves subject to investigations and prosecutions. We are grateful to right honourable and honourable Members of both Houses for the interest they have taken in this issue and their commitment to ensuring that service personnel and veterans who are impacted by historical allegations are properly supported.

As a matter of MoD policy, service personnel are entitled to legal guidance at public expense when they face criminal allegations that relate to actions taken during their service and where they were performing their duties. This principle is at the heart of the MOD’s approach to supporting our people and is enshrined in the relevant Defence Instruction Notices. It is a responsibility that the MOD takes extremely seriously, and we keep our policies under review to ensure that they are appropriate and tailored.

Since the early days of Iraq and Afghanistan, the Armed Forces have learned lessons on better resourcing and professionalising support to those involved in inquiries or investigations arising from operations, and the mechanisms for providing this support

have been transformed in recent years. The way this is delivered and by whom will depend on the specific circumstances of the case, the point which has been reached in the proceedings and, most importantly, the needs of the individual concerned.

Any individual who is investigated by the Service Police is entitled to legal representation as well as the support of an Assisting Officer who can offer advice on the process and procedure and signpost welfare resources. The individual’s Commanding Officer and Chain of Command have overall responsibility for the person’s welfare and for ensuring access to the requisite support.

Individuals who are interviewed as suspects under caution will be entitled to free and independent legal advice for this stage of the investigation. Subsequently, legal funding for service personnel and veterans facing criminal allegations can either be provided through the Armed Forces Legal Aid Scheme (AFLAS) or through the Chain of Command.

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 (AFCLAA) will act as a conduit for the provision of publicly funded legal representation on behalf of the chain of command, including all aspects of financial and case management. 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.

All other serving personnel and veterans facing criminal proceedings prosecuted through the service justice system, and who are not covered by the Chain of Command funding, may apply for legal aid through the AFCLAA and may be required to make a personal contribution, determined by means testing, if funded through the Armed Forces Legal Aid Scheme. This is in line with civilian legal aid scheme.

There is an important exemption from the means testing requirement, which has been waived in criminal cases arising from our Iraq or Afghanistan operations heard in the Service Court. Separately, legal advice and support is also available whenever people are required to give evidence at inquests and inquiries and in litigation and this is co-ordinated by MOD.

We also recognise that for service personnel and veterans who are involved in these processes, legal guidance by itself is not enough. This is why we have developed a comprehensive package of welfare support to ensure we deliver on our commitment to offer ongoing support to veterans.

As part of delivering on this commitment, the Army Operational Legacy Branch (AOLB) was established in 2020 in order to coordinate the Army’s support to those involved in legacy cases. Fundamental to this is ensuring that welfare and legal support is provided to all service personnel and veterans involved in operational legacy processes. The AOLB provides a central point of contact and optimises the welfare network already in place through the Arms and Service Directorates and the network of Regimental Headquarters and Regimental Associations. Veterans UK are also closely engaged in providing support to veterans and, when required, the Veterans Welfare Service will allocate a welfare manager to support individual veterans. Although the AOLB has been established to provide an Army focus to legacy issues, the support it provides is extended to the other services.

This is provided in addition to the range of welfare and mental health support that is routinely offered to all our people. The potential impact of operations on a service person’s mental health is well recognised and there are policy and procedures in place to help manage and mitigate these impacts as far as possible. The MOD recognises that any operational deployment can result in the development of a medical or psychiatric condition and that service personnel may require help before, during and after deployment. All Armed Forces personnel are supported by dedicated and comprehensive mental health resources.

Defence Mental Health Services are configured to provide community-based mental health care in line with national best practice.

In terms of support for those who have left the forces, veterans are able to access all NHS provided mental health services wherever they live in the country. As health is devolved and services have been developed according to local populations’ needs, service specification varies. This can mean bespoke veteran pathways or ensuring an awareness of veterans’ needs. All veterans will be seen on clinical need. What is important is that best practice is shared between the home nations and there are several forums in place to provide this.

The Office for Veterans’ Affairs works closely with the MOD and departments across government, the devolved Administrations, charities and academia to ensure the needs of veterans are met.”

I am sorry that that was a rather long but, I think, very comprehensive statement of what is required. Of course, it is not only applicable to operational situations overseas but is also important in reference to all the Armed Forces. It would therefore seem right that this kind of thing should be legislated for in the Armed Forces Bill when it comes along.

I turn briefly to Amendments 1 and 6 in light of that provision. In my submission, Amendment 1 departs from a very clear statement of the situation in which particular prosecutions should not start or be continued, towards a very vague one where the decision is put on the shoulders of the prosecutor, who must decide whether a fair trial is likely to be damaged by the delay.

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I should have thought that primarily that kind of decision is for the tribunal, which has responsibility. The prosecutor will be responsible for prosecution, but he does not know, and cannot know, the full detail of the effect, if any, of the passage of time on the defence. Therefore, in my submission—apart from the fact that it is completely vague— you cannot tell when the investigations are going on, whether it is true or not. It is a very big and difficult thing to establish during the course of the investigations.

It is important to remember that what this Bill is trying to do in the provisions to which Amendment 1 relates is to ensure that the investigations are not dragged on for more than five years. The Bill provides a very considerable spur to the speed with which investigations are done in order to be effective. It is completely easy to define, in the sense that you can tell when you are doing the investigation whether it is five years since the incident. You do not need to be thinking about whether the time passing has damaged the possibility of a fair trial. Apart from anything else, it is not very easy for the person who is conducting the investigation to have a balanced view of the situation for the defence. In my submission, Amendment 1 is not an improvement on what is in the Bill already.

On Amendment 6, the provisions that are set out in the statement which I read indicate quite clearly that the situation that is provided is much better than what would be done by the sort of detail which is provided in Amendment 6. The whole system indicates, as set out in that statement, that the matter is dealt with as a detailed attachment to the particular case and that what is required in each particular case may be very different in one from another. Therefore, in my submission,

Amendment 6 is not an improvement on the Bill and I do not think that there is room for, or need for, an elaborate system of care other than what is provided in detail by the statement that I have read.