House of Commons - Defence

Select Committee on Defence Third Report

2 BACKGROUND TO THE INQUIRY

16. The Armed Forces require a fundamentally different commitment from that required in any other sphere of activity. In 1998, General Sir Michael Rose, a former Adjutant General wrote:

The ability to carry out that commitment depends on members of the Armed Forces receiving the right training.

17. A central question when considering the duty of care provided by the Armed Forces is the relationship between duty of care and operational need. The two are linked by the necessity to provide sufficiently robust training such that, once trainees have completed their training and been posted to front-line units, they do not put themselves or their colleagues' lives at unnecessary risk.[23] It would not be acceptable if, in order to produce that operational effectiveness, the training regime includes elements that go beyond robust training and stray into bullying behaviour. The Surrey Police Final Report acknowledges that:

The Armed Forces would have failed in their duty of care if recruits and trainees were not adequately trained and tested for operations. The Minister told us:

18. Although training must be robust, there are legal and moral obligations on those in command of training to ensure that recruits and trainees receive the appropriate duty of care. Robust training and duty of care are not mutually exclusive. General Palmer told us that the major duty of care was to ensure that those who go from the training organisation into the frontline are properly prepared.[26] He went on to say it was "completely incompatible" for the training regime to be both "full of bullies and harassers", and producing successful soldiers.[27]

19. The Armed Forces are risk-taking organisations, the nature of the work they undertake is high risk and training to join the Armed Forces must necessarily have a higher risk associated with it than training for other professions. There is a balance between protecting individual rights and compromising the effectiveness of the Armed Forces. Lieutenant Colonel (Retired) Richard Haes, who produced a report in 2001 on duty of care of recruits at Deepcut Barracks, stated in his written evidence:

It is because Service training is high risk that the Armed Forces have a greater obligation to provide an adequate duty of care for their recruits and trainees. Nevertheless, it is important to ensure risk is not reduced to such levels that recruits are not prepared properly for operations.

Definition of Duty of Care

20. The Armed Forces' duty of care is derived from both the legislative obligations on employers and a moral obligation to look after their employees that the Services acknowledge.[29] MoD interprets the phrase 'duty of care' narrowly, to encompass only its legal responsibilities.[30] The term 'supervisory care' is used by MoD to describe both the legal and moral component of looking after its employees. MoD summarised its legal obligations by reference to the tests a Court would apply in determining whether a duty of care was owed. The Court would consider in turn whether an injury was reasonably foreseeable; the proximity between the person alleged to owe the duty and the person claiming it is owed, and whether it would be fair, just and reasonable to impose a duty.[31] We have not used MoD's distinction between legal and moral obligations in this inquiry. The phrase 'duty of care' is used throughout this report—meaning both legal and moral obligations.

21. We have concentrated on welfare and psychological aspects of the duty of care owed to recruits and trainees, rather than the duty to ensure that training in a particular aspect of military activity is safe. In other words, we have not considered whether the Armed Forces should improve the way trainees are taught to drive a tank or fire a gun. These are important issues that are inspected by the Health and Safety Executive.[32]

THE LEGAL COMPONENT OF DUTY OF CARE.

22. Duty of care, as defined by MoD, derives from health and safety, equal opportunities and anti-discrimination legislation. The Health and Safety at Work etc Act, 1974, and associated secondary legislation set out the legal obligations on all employers to provide a safe place to work. The Act extends to matters that are foreseeable and within the employer's control. The Act covers mental as well as physical well-being; and includes issues such as stress and violence in the workplace. Secondary legislation covers:

Machinery safety, including suitability, maintenance and inspection of work equipment, and information and training. Service issue weapons fall within the definition of work equipment.[33]
Reporting accidents at work that result in death, major injury or incapacity,[34] although these provisions apply only to members of the Armed Forces who are not on duty.
Conducting suitable and sufficient risk assessments and controlling hazards identified.[35]

23. Regulations specifically relating to young people less than 18 years old place a duty on employers to consider the psychological and physical capacity of their young employees. Employers are also required to provide information on preventive and protective measures to both employees under 18 years old and their parents or guardians before the young person starts work.[36]

24. The legislation applies to the Armed Forces, but the Secretary of State may disapply it in the interests of national security.[37] There is no Crown exemption from the Act and associated regulations, but there are exemptions under the legislation that provide alternative administrative procedures for Crown enforcement. Those alternative mechanisms include the issuing of Crown Notices and Crown Censures.[38] MoD does enjoy some further exemptions and disapplications as a result of the unique nature of its activities.[39] Not all of the legal duties imposed by statute are absolute. Some apply "as far as is reasonably practicable", and allow for a balance to be struck between the degree of risk and the time, trouble, cost and physical difficulty involved in avoiding the risk.

25. The Armed Forces Health and Safety Policy includes the principle of meeting "subject to operational constraints, the requirements of the Health and Safety at Work legislation applicable in the UK and overseas". This policy and MoD's statutory responsibilities apply to all serving Armed Forces personnel (both Regular and Reservists), Cadets and civilian personnel. Other principles underpinning the policy include:

to exercise health and safety responsibilities throughout the command chain and on an individual basis operationally and non-operationally, including the provision of information and appropriate levels of instruction and training;
to have in place, monitor and regularly review a rigorous continuous programme of health and safety improvement.

26. The Armed Forces are subject to anti-discrimination legislation.[40] Sexual discrimination legislation currently applies to the Armed Forces, but does allow women to be excluded from posts in which the Armed Forces have judged that they would undermine and degrade combat effectiveness—for example, all cap-badged posts in the Regular Infantry are presently closed to women.[41] The Race Relations Act 1976 makes it unlawful to treat one person less favourably than another on racial grounds.[42] The Act applies to service in the Armed Forces, but there are important procedural differences involved in bringing a complaint. MoD has instituted a Race Equality Scheme 2002-2005 in response to its duty to promote race equality under the 1976 Act, as amended by the Race Relations (Amendment) Act 2000.[43] The Employment Equality (Religion or Belief) Regulations 2003, which apply to the Armed Forces, prohibit discrimination in employment on the grounds of religion or religious belief. In addition, members of the Armed Forces are entitled to the protections of the European Convention on Human Rights.[44] The Employment Equality (Sexual Orientation) Regulations 2003, which prohibit discrimination in employment on the grounds of sexual orientation, also apply.

MORAL COMPONENT OF DUTY OF CARE

27. MoD's supervisory care obligations encompass, in addition to its legal responsibilities, a moral obligation to its employees. Each Service interprets its moral obligations in a different way based on their individual cultures. The 'Moral Component' of the Army's Military Covenant, states:

Enduring moral strength requires inner qualities in all soldiers, which must be reflected collectively throughout the Army. These are listed in 'The Values and Standards of the British Army' as Selfless Commitment, Courage, Discipline, Integrity, Loyalty and Respect for Others.[

28. Colonel Haes' written evidence states that:

29. We are not aware of any of the Service training organisations producing a single document setting out its moral duty of care obligations to individual recruits. Where references to moral responsibilities are made they refer to an individual's responsibility to uphold the values and standards of the Service.

30. We accept that MoD's distinction between moral obligations and legal requirements may aid its internal process of identifying responsibilities in law. However, we do not consider the distinction helpful to the development of duty of care policy. By maintaining a dividing line between its legal and moral obligations, MoD is open to the criticism that it considers obligations that are not legally enforceable to be less important. A precise and unambiguous statement setting out the moral obligations of the Armed Forces to their personnel would provide clarity for those charged with providing duty of care, and for those entering the Services. We therefore recommend that MoD produce a clear and concise statement of its duty of care and welfare obligations for recruits and trainees in the three Services. We would expect such a statement to go beyond reiterating the ethos and standards of the Services.

Princess Royal Barracks, Deepcut

31. The deaths of four young soldiers at Deepcut Barracks, and the inquiries conducted into those deaths became a catalyst for the Armed Forces to reconsider their duty of care policies and their implementation. Those deaths also prompted this inquiry. As we explained in paragraph 4 we have not examined the specific circumstances of the deaths of Pte Sean Benton, Pte Cheryl James, Pte Geoff Gray and Pte James Collinson in this inquiry. Surrey Police have investigated each of the deaths and they are properly matters for the police, the Coroner and, potentially, the legal system. In the course of their investigations, Surrey Police became aware of aspects of the training regime that caused them concern. Their Final Report highlights those concerns.

32. The media have frequently reported allegations of bullying at Deepcut. A recent newspaper article quoted former Deepcut recruits who had formed a group which was collecting statements about bullying at the camp. Ms Joanna Jones, a member of the group is quoted:

Staff crossed the boundaries of discipline into humiliation and control through the use of fear… A handful of staff members made our training unattainable and not only soul-destroying but, for some, life-destroying. Senior officers stood back and watched the morale plummet, self-harming soar and people die and did nothing.[

Another member of the group, Mr Paul Kerr, left the Army after five weeks at Deepcut. He refers to an incident in which a recruit was punched in the head by a sergeant, and another in which a "boy was thrown against a wall so violently by a member of staff I thought he had broken his back".[48] Another member of the group, James McAleese, trained at Deepcut for several weeks. He said: "The general atmosphere at Deepcut was one of depression with a high boredom factor, bullying and humiliation."[49] We were contacted by a trainee currently at Deepcut, who states:

I can see how many of the young, less mature 'soldiers' would sometime deem themselves to be 'picked on' and 'bullied' as it were. At the end of the day parades and strangely timed [physical exercise] sessions employed as punishment will be used if it prevents 17-19 year old 'boys and girls' behaving in a way that is not becoming of a British Soldier... and believe me, spitting at Sergeants, underage drinking, theft, fighting and genuine levels of unhygienic conduct (to name a few) are all acts that deserve a punishment. In the 8 months I have been here I have seen no beatings, public downgradings, assaults (sexual, physical or otherwise) or anything from the permanent staff towards the recruits. If there is any, the recruits do that to each other.

It is not the staff who are in the wrong at this time, it is the British Army for letting such obnoxious, rude, immature youths complete phase 1 training and progress to trade training while they should still be in bed for 10pm on week nights and asking parents to support their paper round wages with pocket money.

Deepcut is not a nice place. Accommodation poor, food indifferent, but it would be a damn nicer place with people here that want to actually want to be in the Army rather than people who either can't get jobs in civvy street or whose parents have thrown them out.

33. We are unable to gauge whether this submission is indicative of the view of most trainees currently serving at Deepcut Barracks. It does provide a counterpoint to the majority of evidence about bullying and of conditions at the camp.

34. Evidence from the families of the four recruits who died at Deepcut Barracks identifies issues to be addressed by MoD concerning initial training establishments and Deepcut in particular. Written evidence from Mr and Mrs James included criticisms of MoD and Surrey Police for its handling of the investigation into their daughter's death in 1995 and renewed the Deepcut families' call for a public inquiry into the four Deepcut deaths.[51] Mr and Mrs Collinson submitted evidence cataloguing their complaints about the way in which they were treated by the Army and MoD after their son's death at Deepcut in 2002. They also called for a public inquiry to cover: supervision and armed guarding; bullying; deaths at training establishments; liaison with families of recruits; and independent oversight of armed forces training.[52]

35. Evidence submitted by Mr and Mrs Gray on behalf of Deepcut and Beyond listed alleged failures by the Army chain of command in its supervision of recruits at Deepcut.[53] Their evidence also calls for an 'independent and judicial public inquiry'; makes recommendations for the establishment of an Armed Services Ombudsman; and makes 32 specific recommendations designed to improve the provision of duty of care to recruits.[54] We note that the Minister announced a review to consider the circumstances surrounding the four Deepcut deaths and we have met Mr Nicholas Blake QC, who is to undertake the review. We consider Mr Blake's inquiry later in this report (see paragraphs 441-446).

22 'How soon could our Army lose a war', Daily Telegraph, 5 April 1998. Back

23 Qq 7, 89, 171. See Ev 232-235 Back

24 Surrey Police Final Report, para 1.22. Back

25 Q 1358 Back

26 Q 7 Back

27 Q 109 Back

28 Ev 419 Back

29 Ev 234 Back

30 Ev 234, 261-262 Back

31 Ev 261-262 Back

32 Q 155, Ev 373-386 Back

33 Provision and Use of Work Equipment Regulations 1998 (S.I. 1998 No. 2306) (PUWER), as amended. Back