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Lord Henley: My Lords, I cannot add much to what the noble Lord, Lord Alderdice, has said. The noble Baroness, Lady Finlay, tabled a similar amendment in Committee that sought clarification of the use of the word "exceptional". Again, the Government had a

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good long summer break and have had time to think about this, so perhaps they can assist the House on what exactly they mean by "exceptional".

Lord Tunnicliffe: My Lords, Schedule 1 provides for the suspension of a coroner's investigation. It allows for coroners to continue their investigation if they consider there to be exceptional reasons to do so when there is an ongoing criminal investigation. The amendment would lower this threshold to having a good reason not to suspend the investigation.

As the Government stated in Committee, we must begin with the proposition that it is appropriate for the coroner to suspend his or her investigation if a person is charged with a serious offence connected to the death. Otherwise, the coroner's investigation could duplicate a criminal inquiry and possibly even impede or lengthen it. In addition, the "exceptional" threshold is the right one, considering that the relevant offence is a homicide offence, a service equivalent, or an offence related to the death in some other way. However, even though the coroner's investigation may be suspended, matters relating to the post-mortem and the release of the body of the deceased person to families may still be dealt with by the coroner.

Schedule 1 also provides for the prosecuting authority to indicate to the coroner that it has no objection to the continuing investigation. However, coroners are very aware of the importance of criminal proceedings, particularly as part of the bereaved family seeing that justice is done, and will rarely want to continue an investigation in these circumstances. This might be another area in which the chief coroner issues guidance to cover the rare cases in which a coroner's investigation should continue.

I hope, given this explanation, that the noble Lord, Lord Alderdice, will feel able to withdraw his amendment.

Baroness Butler-Sloss: My Lords, perhaps the Minister could explain-to me at least, because I have not understood-the basis of the change. It was "good"; it is now "exceptional". I understand all the Minister's arguments, except that he has not, in my view, explained why there is a change of word.

Lord Tunnicliffe: My Lords, we have changed the word, as I understand it, because we want the test to be that little bit more forceful. It should be truly exceptional.

Lord Alderdice: My Lords, in a number of our earlier arguments and discussions in your Lordships' House-for example, on the inclusion of the Security Service-the Minister's response was that there has been no instance of a problem of this kind in 50 years. I am therefore a little surprised that he has not taken the opportunity, even when invited by the noble and learned Baroness, to explain when and at what stages there was ever any problem with what pertains at present. He has made his arguments, but he has not indicated in any way where they were alerted to this and why there was a problem. I understand why there might be a problem in theory, but I am at a loss to understand what the difference has been in practice. The Minister was invited to enlighten us.



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My hope is that coroners who are used to operating on the basis of "good" will interpret "exceptional" in the light of their experience of "good", perhaps guided by the Chief Coroner, on whom we are putting yet further expectations. In that light, I beg leave to withdraw the amendment.

Amendment 19 withdrawn.

Amendment 20 not moved.

Amendments 21 to 23

Moved by Lord Bach

21: Schedule 1, page 120, line 30, after "if" insert "(a)"

22: Schedule 1, page 120, line 33, at end insert ", and

(b) a senior judge has been appointed under that Act as chairman of the inquiry.

In paragraph (b) "senior judge" means a judge of the High Court or the Court of Appeal or a Justice of the Supreme Court."

23: Schedule 1, page 120, line 44, at end insert-

"3A (1) This paragraph applies where an investigation is suspended under paragraph 3 on the basis that the cause of death is likely to be adequately investigated by an inquiry under the Inquiries Act 2005 (c. 12).

(2) The terms of reference of the inquiry must be such that it has as its purpose, or among its purposes, the purpose set out in section 5(1) above (read with section 5(2) where applicable); and section 5 of the Inquiries Act 2005 (c. 12) has effect accordingly."

Amendments 21 to 23 agreed.

Amendments 24 to 26 not moved.

Amendment 27

Moved by Lord Bach

27: Schedule 1, page 124, line 1, leave out "six" and insert "seven"

Amendment 27 agreed.

Clause 12 : Investigation in Scotland

Amendment 28

Moved by Lord Craig of Radley

28: Clause 12, page 6, line 13, leave out from "(c. 52)" to end of line 18

Lord Craig of Radley: My Lords, in moving Amendment 28, I shall also speak to Amendments 29 and 30 in my name and in that of the noble Lord, Lord Thomas of Gresford.

In Committee, I explained that I had two points of concern about Clause 12. One was the definition of active service in subsection (6), which relied on Section 8 of the Armed Forces Act 2006. This is a most inappropriate definition to use for those who have been killed on operational service, as Section 8 deals solely with the offence of desertion. The Minister agreed, and he has now proposed a new definition of active service in his Amendment 31. Although I welcome this change of heart, I raised a further point in Committee about this clause. Is it right to attempt to draw a distinction between service personnel who were killed or died of wounds while on active service or in training for active service, and other members of the Armed

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Forces, whose bodies will be repatriated following violent or unnatural deaths overseas and for whom inquests are required?

I remind the House of the Government's Command Paper 7424, which was published with much acclaim only last year. In this paper, all government departments and devolved Administrations have collectively undertaken to treat fairly all members of the Armed Forces, their families, and veterans. Surely it is a blatant breach of that promise to attempt to draw some dividing line between service personnel who die in one operational theatre and those who die overseas elsewhere. Indeed, the Minister's letter to me of 22 May, which was placed in the Library, said as much. He wrote:

"The families of service personnel who have died abroad other than on active service are no less deserving of consideration".

7 pm

In Committee, I proposed amendments similar to Amendments 28, 29 and 30, which would remove references to active service. The Minister resisted my amendments on the grounds that to accept them would,

was undertaking. I have since spoken to the noble and learned Lord, Lord Cullen, who I am delighted to see on the Bench beside me, and he most considerately wrote me a note for which I am most grateful. I had his permission to pass the content of the note to the Minister, which I did last Wednesday. The Minister will therefore know what the noble and learned Lord, Lord Cullen, said in his note. He pointed out that legislation for the specific purpose of inquiring into the deaths abroad of Scottish members of the Armed Forces was not within the competence of the Scottish Parliament-defence not being a devolved matter, as indicated in paragraph (9) of Schedule 5 to the Scotland Act 1998.

The note from the noble and learned Lord, Lord Cullen, is clear. This subject is not within his remit. Indeed, he went on to say that, in view of the comments made by the noble Lord, Lord Bach, about pre-emption, to which I have referred, so far as my amendments are concerned, if they fell within paragraph (9) of Schedule 5 to the Scotland Act, they would have no relevance to his inquiry. In so far as they went beyond paragraph (9), they would not be in conflict with the approach taken by the noble and learned Lord in his review. So, pre-emption there is none.

The Minister's Amendment 31 refers to Section 374 of the Armed Forces Act 2006 with a definition of the word "enemy" to flesh out the meaning of his amendment. This would say that active service means service against all persons engaged in armed operations, against all powers, armed mutineers, armed rebels and armed rioters. But Clause 12(2) goes much wider than active service alone. It includes activities,

and training for active service. I would contend that any service man or woman on duty is involved in training for, preparing for or supporting service against persons engaged in armed operations-against pirates, armed mutineers, rebels or rioters. That is what armed forces do.



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It seems to me that this clause, with the Minister's revised definition for "active service" in subsection (6), introduces a distinction without a difference. However, by removing the references to active service in this clause, my amendments seek to correct this and be seen to treat equally fairly families of all members of the Armed Forces who suffer an untimely death overseas on duty, whether as a result of being killed in action, dying of wounds or due to some other mishap which proves fatal and requires an inquest following repatriation of the deceased. This would also accord with the heading for Clauses 12 and 13, Death of service personnel abroad.

I understand that Clauses 12 and 13 were rushed in to meet the general concerns of those most affected at the present time of high operational tempo and regrettable casualties. The way in which Clause 12(6) would be revised by Amendment 31, proposed by the noble Lord, Lord Bach, only serves further to highlight the fact that Clause 12 does not appear to meet the requirement to treat all service personnel fairly, nor does it tie in with the heading of this part of the Bill.

For the avoidance of doubt, I am fully in support of the unique and caring arrangements being made in Clauses 12 and 13 for the actual handling of inquests into the deaths of service personnel abroad. These introduce flexibility in the location of the inquest in order to meet the wishes of the next of kin of the deceased who want to attend. That is most important and highly desirable. I commend the Government for that approach, but it must clearly be seen to apply to all service personnel.

On reflection, I hope that the Minister will accept that the inquiry made by the noble and learned Lord, Lord Cullen, is not being pre-empted. To introduce special arrangements for some classification of casualties in the Armed Forces overseas, but not for others, breaches the thrust of Command 7424 to treat all service personnel and their families fairly. Is this aspect not a defence matter and therefore not devolved to the Scottish Parliament? For the rest of the two clauses about the location of arrangements, both Governments are in accord and have wide public support for this arrangement. I urge the Government to accept my amendment. I beg to move.

Lord Henley: I support the noble and gallant Lord, Lord Craig of Radley, whose amendments we are discussing, along with government Amendment 31. But I suspect that the noble and gallant Lord has rather stolen the thunder from the government amendment. In saying that I support it, I want to make only a couple of points. First, I am grateful to the noble and gallant Lord for passing a copy of the note from the noble and learned Lord, Lord Cullen, to me. So I have seen it as well as the Minister. I agree entirely with its comments.

My second point I will put by way of a question to the Minister. I seem to remember from my time in social security when I was dealing with war pensions matters the qualification for becoming a war widow had nothing to do with the death on active service of her late husband. It applied to any death on active service or any death in training. Would that not be a

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far better model for the Government to look at, rather than the more restricted way in which the Minister is doing it? Will the noble Lord confirm that I am right that any death in training would have been sufficient for someone to qualify as a war widow as well as a death on active service? Therefore, a death of that sort would be covered by all the examples given by the noble and gallant Lord, Lord Craig of Radley.

Lord Thomas of Gresford: My Lords, we were somewhat surprised that the definition of active service was taken from the definition of desertion in Section 8 of the Armed Forces Act 2006, which we debated at length in this House. One might say that the Government have shot themselves in the foot over that one. Accordingly, the amendments proposed by the noble and gallant Lord, Lord Craig, are fully deserving of support and we support them.

Lord Bach: The amendments in the name of the noble and gallant Lord, Lord Craig, concern the scope of the Bill's provisions for fatal accident inquiries in Scotland into the deaths of certain service personnel abroad. Perhaps I may start by saying how grateful I am for the noble and gallant Lord's support in general for Clauses 12 and 13 and what they represent. As the noble and gallant Lord has said, Clause 12, in conjunction with the amendments to the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 in Clause 45, provides for fatal accident inquiries to be held in Scotland into deaths abroad of service personnel on active service.

We added these clauses to the Bill in the other place to respond to calls from service families in Scotland, from MPs and from MSPs to make provision for families in Scotland to attend fatal accident inquiries into deaths which have occurred on operations in Afghanistan and Iraq. This means that in most cases such families will no longer need to travel long distances to England for an inquest. Clause 12 seeks to address that human issue. Clause 12 arises out of an agreement reached by the UK Government and what is now called the Scottish Government. Our argument is around that agreement and whether it would be responsible to unpick that agreement, which is in effect what we would do unilaterally if this amendment were to be passed. Amendments 28, 29 and 30 would remove the requirement for the personnel covered by this clause to have been on active service or accompanying those on active service when they die, so that the Lord Advocate could permit a fatal accident inquiry into the violent or unnatural death overseas of any service personnel.

When considering similar amendments in Committee, I explained that I understood that Scottish Ministers would consider whether the Bill's provisions should be extended to cover the deaths of service personnel which occur in non-operational circumstances as part of their wider consideration of the recommendations of the noble and learned Lord, Lord Cullen. Noble Lords will remember that the noble and learned Lord's review of fatal accident inquiry legislation in Scotland is due to report later this year. His review is, of course, concerned only with

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devolved matters; and therefore will not relate to fatal accident inquiries into deaths of Armed Forces personnel.

I agree with the noble and gallant Lord, Lord Craig, that we are not pre-empting the report of the Cullen inquiry, but we are pre-empting the Scottish Government's consideration of that report. It is for the Scottish Government-whether we like it or not-to consider what changes to make to the legislation governing fatal accident inquiries following the Cullen inquiry.

I remind the House that the provisions in Clause 12 seek to address a specific issue that has arisen as a result of our Armed Forces engagement in operations in the two theatres of Iraq and Afghanistan. The clause reflects the terms of an agreement between the United Kingdom Government and the Scottish Government on how best to respond to representations from service families. We are talking to the Scottish Government. The provisions in the Bill relate to the deaths of Armed Forces personnel on active service, and are the outcome, I emphasise, of prolonged negotiations between my department, the Ministry of Defence, the Scotland Office and the Scottish Government.

Speaking from this Dispatch Box, I cannot simply throw out of the window our agreement with Scottish Ministers, but I readily agree to have further talks before Third Reading with the Scottish Government. I cannot promise to change our position, but I would like to see what is possible. Anyone in government would agree that we need to bring Scottish Ministers with us on this issue, because, ultimately, the circumstances in which there must be a fatal accident inquiry in Scotland will be a matter for them. That would be true even if we were talking about an agreement made with an unfriendly Administration or Government. It cannot be for us to unpick something that has been agreed between Governments because it happens to suit us.

I invite the noble and gallant Lord to withdraw his amendment today. I will keep him fully informed of how the discussions go with the Scottish Government. If they are getting nowhere, of course he will put down his amendment at Third Reading and, no doubt if we still resist it, take it to a vote. However, today I ask him for a little further time to try to see if we can come to an agreement with the Scottish Government, with whom we have an arrangement on this matter. I invite him to desist from asking the House to express its opinion.

As the noble and gallant Lord was kind enough to say, government Amendment 31 responds to a concern raised by him in Committee about the definition of "active service" in Clause 12(6). That subsection cross-refers to the definition of "active service" set out in the Armed Forces Act 2006-a section which deals with the offence of desertion. The noble and gallant Lord argued persuasively-as he always does-that it was inappropriate to use that source definition for those who have been killed on operational service, serving their country. The noble and gallant Lord suggested that, rather than cross-referring to the Armed Forces Act, we should instead set out the definition of "active service" in full in Clause 12(6). That is exactly what we have done in Amendment 31, which places the definition of "active

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service" on the face of the Bill. I am grateful to the noble and gallant Lord for raising this issue, and I hope that our amendment will be welcomed in due course.

7.15 pm

Lord Craig of Radley: I am grateful to all noble Lords who have spoken on this. I remind the House that I raised this issue in June and it has been clear for four and a half months that the use of the phrase "active service" was not satisfactory.

To be asked now to withdraw the amendment with a couple of weeks or so to go before the House prorogues and be led to feel that this will be resolved in that time is highly unacceptable. Defence is not a devolved issue. The agreement in Clauses 12 and 13 about where the inquest should be held is widely accepted and I do not see that moving this amendment in any way detracts from that. I wish to test the opinion of the House.

7.16 pm

Division on Amendment 28

Contents 90; Not-Contents 92.

Amendment 28 disagreed.


Division No. 3


CONTENTS

Alderdice, L.
Anelay of St Johns, B.
Astor of Hever, L.
Barker, B.
Bates, L.
Bonham-Carter of Yarnbury, B.
Bridgeman, V.
Butler-Sloss, B.
Byford, B.
Colwyn, L.
Cope of Berkeley, L.
Craig of Radley, L. [Teller]
De Mauley, L.
Denham, L.
Dykes, L.
Falkland, V.
Ferrers, E.
Finlay of Llandaff, B.
Fookes, B.
Fraser of Carmyllie, L.
Garden of Frognal, B. [Teller]
Geddes, L.
Glenarthur, L.
Greaves, L.
Griffiths of Fforestfach, L.
Hamwee, B.
Harris of Richmond, B.
Henley, L.
Higgins, L.
Hooper, B.
Howe, E.
Kilclooney, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Lawson of Blaby, L.
Lee of Trafford, L.
Lindsay, E.
Listowel, E.
Livsey of Talgarth, L.
Low of Dalston, L.
Lucas, L.
Lyell, L.
McNally, L.
Maddock, B.
Mar, C.
Mar and Kellie, E.
Marland, L.
Marlesford, L.
Masham of Ilton, B.
Mawson, L.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Monson, L.
Montrose, D.
Morris of Bolton, B.
Noakes, B.
Northover, B.
Norton of Louth, L.
O'Neill of Bengarve, B.
Onslow, E.
Pannick, L.
Patten, L.
Ramsbotham, L.
Razzall, L.
Redesdale, L.
Renfrew of Kaimsthorn, L.
Rennard, L.
St. John of Bletso, L.
Saltoun of Abernethy, Ly.
Scott of Needham Market, B.
Seccombe, B.
Sharp of Guildford, B.
Sheikh, L.
Shephard of Northwold, B.
Shrewsbury, E.
Shutt of Greetland, L.
Steel of Aikwood, L.
Stoddart of Swindon, L.


21 Oct 2009 : Column 762

Thomas of Gresford, L.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Ullswater, V.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Walpole, L.
Warnock, B.
Wilcox, B.

NOT CONTENTS

Acton, L.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L. [Teller]
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Carter of Coles, L.
Clark of Windermere, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Donoughue, L.
Elder, L.
Elystan-Morgan, L.
Farrington of Ribbleton, B.
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