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Grand Committee

Wednesday, 17 January 2007.

The Committee met at quarter to four.

[The Deputy Chairman of Committees (Baroness Turner of Camden) in the Chair.]

Corporate Manslaughter and Corporate Homicide Bill

(Third Day)

The Deputy Chairman of Committees (Baroness Turner of Camden): If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

Clause 4 [Military activities]:

Lord Lee of Trafford moved Amendment No. 44:

The noble Lord said: The amendment, in my name and that of my noble friend Lord Razzall, relates to Clause 4, on military activities. Amendment No. 49 relates to Clause 5, on policing and law enforcement. Both concern the removal of the exemption for pre-operation activities.

Our broad position is that the Bill provides excessive exemptions for the MoD and the police, and we seek to narrow them fundamentally. Perhaps I can set out our attitude to our Armed Forces and the MoD in the context of corporate manslaughter.

Having been a Defence Minister in the 1980s, I have great personal respect for the MoD and our Armed Forces. I well remember during that period having many discussions with the noble Lord, Lord Hunt of Wirral, as he lobbied me hard for frigate and submarine build orders for Cammell Laird. I have to say that then, as now, he was very persuasive and, I am glad to say, at the end of the day successful. Then, as now, there were pressures on the overall MoD budget, and I suspect that there always will be, so it boils down to priorities. We are keen to differentiate between what one may term normal peace-time training, more hazardous training, which we accept will be necessary from time to time, and training for our special forces, which, by definition, is likely invariably to involve greater danger.

We have moved on from the days when anyone enlisted or conscripted into the Armed Forces could or should be expected to put their lives on the line and be sent into action anywhere in the world, irrespective of the quality and quantity of equipment provided for them. Naturally, I exclude all-out war in this context. I am talking about what one may term premeditated possible conflict, as in Iraq or Afghanistan, or perhaps in a peacekeeping role, with or without UN support.

We believe that, when our troops participate in this way, there is a duty on the MoD to properly equip and support them. Failure to do so should render the

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Ministry of Defence potentially liable to a charge of corporate manslaughter. I am not talking about the absolute latest high-tech gadgetry or equipment but about, for example, body armour or the lack of it, as we saw in the tragic death of Sergeant Roberts, which my noble friend Lord Tyler raised at Second Reading and in Questions last week.

On training, for example, I read at the weekend the headline, “Army to blame for firing range death”. In the article, a coroner criticised the Army for “serious failures” in how it managed a firing range in Iraq where a young soldier accidentally shot himself in the head. According to the evidence, there were serious failures in the planning for the range and,

I beg to move.

Lord Hunt of Wirral: From these Benches, we of course want to see the blanket exemption for military combat operations maintained. I have been greatly assisted in preparing for this debate by the fact that my noble friend Lord Henley was also a Defence Minister. I am very grateful for the kind and generous remarks made by the noble Lord, Lord Lee, in that context already. Amendment No. 44 would ensure that activities carried out in preparation for training operations would not be exempt from the duty of care owed by the Ministry of Defence. We therefore support this amendment and Amendment No. 49, although we would want Clause 4 to remain part of the Bill.

Lord Ramsbotham: As an ex-military man, I am entirely in sympathy with what the noble Lord, Lord Hunt, has said. We have heard a certain amount during this debate about the need for common sense and that the person in the boardroom should understand what this is all about. In this case, the boardroom is the military officers who are responsible for preparing troops for war. I do not believe that they would see any difference between the words “preparation” and “training”. They could not do that. Therefore, I hope very much that the amendment will not be accepted.

The Advocate-General for Scotland (Lord Davidson of Glen Clova): I have noted the concerns expressed in this brief debate, both on the specific question of preparatory activities and on whether there should be any specific exemption for military activities. I preface my remarks with the general point that the operational activities of the Armed Forces represent exclusively public functions and therefore fall to be exempt under Clause 3(2). However, that exemption does not apply to duties owed as employer and occupier. By contrast, the exemption in Clause 4 operates across all categories of the relevant duty of care. It is therefore of most substantive effect in respect of the responsibilities of the Ministry of Defence as employer, and I shall focus on that aspect.

The Armed Forces, by the very nature of their activities, are in a unique position, often working in extremely difficult and volatile situations where

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military objectives are imperative. That raises very difficult questions about the extent to which the courts should later scrutinise their decisions about the way those objectives were secured and whether the systems in place for carrying out those activities were adequate. Those difficulties have been recognised in the civil courts, and it is now an established part of the civil law that a combat immunity extends to the Armed Forces. The courts have expressed it in these terms:

Those are the dicta of Mr Justice Owen expressed in a case in 2003, Multiple Claimants v Ministry of Defence. Here is another quote from Mr Justice Starke, in Shaw Savill and Albion Co Ltd v The Commonwealth:

Clause 4 is based on that concept. I believe that it is right that such immunity should extend for the purposes of the new offence. To the extent that the opposition to Clause 4 standing part of the Bill is aimed at bringing combat operations within the scope of the offence, I resist the suggestion.

I phrase my remarks in that way because one of the consequences of the recognition of a combat immunity is that, whether or not an exemption is specifically granted in the Bill, the Armed Forces will not owe a duty of care where combat immunity applies. This provision is important for the sake of clarity for the Armed Forces and to remove the possibility of speculative and potentially damaging prosecutions. But it also means that, for combat immunity, we are not exempting activities that would otherwise be covered.

There is the specific question of preparatory activities. Combat immunity recognises that preparatory activities should be exempt from liability. At the risk of providing the Committee with a legal lecture, in the leading case on combat immunity, to which I have already referred, Mr Justice Owen stated:

We are satisfied that it is right that this aspect of combat immunity should extend to the new offence. If criminal liability were potentially to attach to decisions made during the lead-up to combat operations, commanders may become risk-averse at a time when military imperatives require them to focus completely on the military task in hand. Logistic constraints will always restrict the personnel and kit

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that can be made available and will always limit the available options. This will mean that all involved will operate under stress, and to restrict the exemption to “combat only” would risk giving undue prominence to one of the many factors that commanders should have in mind when preparing to deploy.

Similar arguments apply in respect of the police. Operations tackling terrorism, civil unrest and serious disorder will place very significant pressures on police forces and may well be carried out in haste in emergency situations. The police and other law enforcers will not necessarily have the luxury of time or resources to ensure that all their obligations under health and safety have been met before attending to the situation. That could be detrimental to the protection of the public from serious threats.

Some concern has been expressed that “preparation for” could be interpreted very widely by the courts to cover routine training or, for example, routine maintenance of riot control equipment. That is not the intention, and it would be a very wide reading of the term, particularly given that specific mention is made of training in both Clauses 4 and 5, which exempt only “hazardous” training. We are therefore satisfied that it would not cover activities such as basic recruit training, training for new roles or equipment, adventurous training, or the normal testing or evaluation of equipment. It would also stretch the meaning of “in preparation for” too far to include routine maintenance of equipment. The exemptions deal with activities that are,

particular operations. We think that supports a narrow reading of the exemption where the police or Ministry of Defence will need to establish a proper connection between the activities in question and relevant operational activity.

4 pm

For the Armed Forces, examples of what would fall within the exemption include the organisation of forward deployments in immediate preparation for combat; reconnaissance missions; the establishment of supply chains in readiness for operations; and some conditioning exercises, such as live fire training exercises or acclimatisation activities that are designed to prepare members of the Armed Forces for the particular circumstances they are likely to encounter. Similar activities preparing officers for an operation or particular operational circumstances would be covered for the police.

I hope that I may have persuaded the Committee that exempting the Armed Forces in respect of operational activity is both right and proper, and that the exemption should extend to preparatory activities. I do not believe that that is an open-ended exemption, but it recognises the considerable complexities that our Armed Forces and police face in preparing for particular operations or operational circumstances.

Any life lost as a result of poor decision-making in that process is a tragedy. However, our operational forces must to a degree be provided with the scope to operate free from liability under either civil or

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criminal law. The Bill draws the line in a recognised and appropriate place. I therefore urge the noble Lord, Lord Lee, to withdraw his amendment.

The Earl of Mar and Kellie: In this group, we are also considering whether the whole clause should stand part of the Bill. An example of complete communication failure from the 19th century is the Charge of the Light Brigade. I understand that the brigade was tasked with charging different guns, but communications became muddled and it ended up attacking guns well up the Valley of Death, as we well know, and coming to considerable grief. Will the Minister explain whether that incompetent communication between commanders would have ended up as being corporate homicide?

Lord Davidson of Glen Clova: On and on they rode, but they did not ride into a position of corporate manslaughter. I submit that that is, par excellence, an example of an operational activity and therefore would not come under the clause.

Lord Lee of Trafford: I am sorry that the Minister seems to have been unable or unwilling to differentiate between the example of body armour or protective clothing being available to the police or to the military, and aggressive or combat operations, which I certainly did not attempt to bring within the scope of the Bill. I hear what he says. I am sure that we will return to the matter on Report. In the circumstances, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Wirral moved Amendment No. 45:

The noble Lord said: I recognise the force of the arguments advanced in favour of a blanket exemption for military combat operations. I tabled the amendment to seek a response from the Government with regard to particular circumstances in which the Ministry of Defence had failed in its duty to provide adequate equipment or training. Under the amendment, no case could be brought against the Ministry of Defence for the way in which its forces acted in active combat, in anti-terrorism operations or in incidents of public disorder when under attack. But were the MoD to mismanage the provision of training and adequate equipment to such a degree that it amounted to a gross breach of its duty of care to provide adequate equipment or training, this amendment would ensure that proceedings could be brought against it. Were it to be accepted by the Government, such an amendment would send a very important signal to our service men and women about how much we value them and how much we are

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prepared to do to ensure that they have the right amount and quality of equipment and training. I beg to move.

Lord Boyd of Duncansby: In 1940 very many would-be pilots never actually made it to the Battle of Britain because, sadly, they died in training before they got there. Those who made it had a life expectancy measured in weeks; certainly, their training was inadequate.

I hope that the operations on which United Kingdom forces are engaged at present allow for better training and better provision of safety equipment such as body armour. But in a hypothetical conflict in which Britain is under attack, either through terrorism or in a more conventional way, might not a 1940-type situation be caught by the noble Lord’s amendment? Is that not a reason to resist the amendment? We are dealing with the security of the nation. Sometimes, sadly, we have to ask young men, and now women, to put their lives on the line so that in future we can have the kind of debate that the Committee is having today.

Lord Ramsbotham: I again declare an interest as a former military officer. I sympathise entirely with the views of the noble Lord, Lord Lee, on including the failure to provide essential equipment, such as happened in the tragic case of Sergeant Roberts, who lacked a flak-jacket. This is a better point at which to have that debate than when talking about preparation, which can be included in training. We all agree with that. I suspect that at the back of noble Lords’ minds are cases such as those at Deepcut, which we recently discussed. That was not operational training, preparation for operations or anything to do with equipment.

I sympathise with the views expressed on equipment. I was in such a position when I took my company to Borneo in 1965. We were largely equipped from the streets of Singapore, where we bought equipment because it was stupid to go off into the jungle with our only bedding a large greatcoat with a hole in the middle, which had been designed to enable guardsmen to drill in the rain, and an army blanket that was so heavy that when it got wet—you always were wet in the jungle—that it was absolutely pointless having it. We ended up having 30lbs on our back as opposed to the 72lbs that we would have had to carry if we had taken the military equipment. That was not necessarily a failure on the part of the Government of the time; equipment was available which suited some places, but not Borneo.

I can see the case for the amendment. I refer to circumstances where you cannot say, for example, that there is a front line. Everyone driving in Iraq may well need a flak-jacket because they may well come under fire. That is fine. However, I am a little concerned about including “training” in the measure because it is such a catch-all term. Pilot training in 1940 was mentioned. I call that operational training; therefore, to my mind, it does not qualify.

I have been on exercises when soldiers were killed, many of them in traffic accidents and other incidents which you cannot really say represented a failure of

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ministerial responsibility. I am a touch worried about this. I agree with the sentiment of this provision; for example, the lack of a flak jacket for Sergeant Roberts was occasioned by the fact that the request for purchasing such equipment sat unsigned on the Secretary of State’s desk for up to six months. That suggests to me a failure of ministerial responsibility and culpability. If officials play a part, they have managerial responsibility, which seems to me to come entirely within the remit of the Bill. It would therefore be perverse on these occasions if the Ministry of Defence and such activities were excluded. But I have a slight hang-up about the question of training.

The Earl of Mar and Kellie: This amendment could help the senior military officers who ultimately have to advise the Government whether the Army or Royal Air Force is ready to go on a mission. The noble and learned Lord the former Lord Advocate raised the issue of home defence. I see home defence and the slightly more voluntary operations in which we now seem to be getting involved as slightly different situations. Senior military officers would have a clear idea about whether the Army was ready for a mission, according to whether it was properly equipped.

Lord Davidson of Glen Clova: I have spoken at some length on the question of exempting the military in certain circumstances. The amendment recognises the case for exemption but proposes to narrow it in key respects.

Many of the general points that I have made about exempting the military are equally applicable in this context. The current exemption for the Armed Forces in relation to operations, or when engaged in activities of a war-like nature, recognises the inherent nature of conflict and combat, where decisions have to be taken quickly, often with imperfect information and sometimes where all alternatives are unpalatable.

The civil courts have already recognised that they are not in an appropriate position to assess questions about how military objectives were obtained. As I mentioned in our previous debate, this takes the form of a combat immunity, a consequence of which is that the Bill does not exempt activities in this respect, as they are not covered by a duty of care. That is relevant here, too, because it limits the effect of this amendment. It would not bring matters of training and equipment within the scope of the offence because no relevant duty of care is owed in respect of the sort of combat circumstances covered by the exemption as it stands.

To bring those sorts of circumstances within the scope of the offence would mean not only removing this exemption from the Bill, but also creating a new duty of care. That would represent a far more extensive change in the law than we are currently considering, even taking into account the lifting of Crown immunity, and it would involve much wider questions about where the Armed Forces should owe duties of care. The Bill is not an appropriate vehicle for that sort of debate, and it is a route that the Government would be very reluctant to go down in any event.

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Nevertheless, I appreciate the importance of this issue and wish to respond to the concerns it raises. We have considered carefully, in consultation with the Ministry of Defence, the extent to which the military should be exempt from the offence. There are very clear concerns that seeking to apply corporate manslaughter laws to combat situations would be onerous and would threaten judgments of commanding officers who are trying to do the best they can in the circumstances. Nor do we think it would be possible sensibly to divide operational judgments into those that might be subject to corporate manslaughter laws and those that are not.

In the case of this amendment, who is to decide what constitutes “adequate training”? Would the Armed Forces risk liability if a commanding officer ordered soldiers to carry out dangerous activities because, in the heat of battle, that was the only recourse available to him, even though they might not have had the ideal equipment or training?

There might be similar difficulties with judging whether there had been “failure to provide reinforcements”. Might a divisional commander be entitled to refuse to carry out a potentially battle-winning strike unless he is promised an array of reinforcements? Operational front-line commanders must retain the ability to make appropriate operational decisions based on dynamic risk assessment, and it would be unduly onerous to impose liability in these sorts of circumstance.

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