Armed Forces Bill

Baroness Brinton Excerpts

Committee stage
Tuesday 8th September 2026 Lords Chamber

Moved by

[Baroness Brinton]

53: After Clause 42, insert the following new Clause—
“Visiting forces agreements(1) The Secretary of State must publish in unredacted form any part of a treaty, memorandum of understanding or agreement between the United Kingdom and any sending country relating to visiting forces containing a decision about a jurisdictional question, including in relation to the Visiting Forces Act 1952.(2) Alongside the material published under subsection (1), the Secretary of State must publish a document setting out the reasons behind any decision about a jurisdictional question contained in the relevant treaty, memorandum of understanding or agreement.”Member’s explanatory statement
This amendment probes the nature of any agreements reached between the UK and a sending country in relation to jurisdiction over visiting forces, and requires the Secretary of State to set out the reasons behind such a decision.

[Baroness Brinton (LD)]

My Lords, my noble friend Lord Thomas of Gresford cannot be in his place today as he is recovering at home after an operation. We hope that he will be back with us by Report. I have signed his amendment and I will speak to it. I have tabled Amendments 54 and 68, and I have also signed Amendment 55 from the noble Baroness, Lady Bennett. To protect their identities, the victims’ names that I will use are not their own.

I am sure noble Lords will recall the disgraceful case of US spy Anne Sacoolas, who in 2019 was driving on the wrong side of the road in Northamptonshire when she hit and killed Harry Dunn, aged 19. The US authorities then managed to spirit her out of the country to evade justice. We then became aware that the US authorities do not respect our policing and justice systems. She was eventually brought to justice, but only because of Harry’s family’s campaign and then public and governmental pressure.

In recent months, following the brave disclosures made by a victim of rape and sexual assault by a US serviceman on UK soil—not on his USAF base—many more shocking cases have emerged. At Second Reading, my noble friend Lord Thomas and I spoke of this case. In 2023, Jacob Wulfson, a US Air Force pilot, sexually attacked a Cambridge resident in his own Cambridge property, so not at the Lakenheath base where he worked. His victim, whom I have talked to, was very clear that she was alleging rape and sexual assault.

Under the terms of the Visiting Forces Act 1952, it is clear that, where an offence by an off-duty American serviceman against a British civilian takes place off an American base, the investigation and any subsequent court case should usually be in the UK Crown Court; the rest of the Bill goes on to talk about exceptions to that. What happened in this case was that the Cambridgeshire police waived jurisdiction—and, as I understand it, not at a senior level. The trial took place via a court martial before a US military judge and a panel at the Lakenheath base. All the UK protections that are offered to victims of alleged rape and serious sexual attacks disappeared at that moment. Worse, because the victim is not American, she was not entitled to the minimal victim support that is available to US citizens in US courts, as compared to the victim’s rights here in the UK. Worse still, since the victim was brave enough to talk to the Guardian newspaper, many more similar cases have been reported. So this is now, we understand, not a rare occurrence.

I can see why our beleaguered police forces would welcome the removal of cases from their very heavy workloads, but these decisions are not being made at the right level and it is not clear at all that the CPS is involved. I was astonished to discover that many of the specific agreements between us and other countries on such justice systems are made as secret and confidential between the UK and the country. We in Parliament, the press or even the victims cannot find out the details.

The Guardian exposed another case in July. Rebecca fled the house of an American airman in Suffolk, going to the police to report that he had raped and violently attacked her. She saw specialist health and police staff. They looked after her. She was given an ISVA—an independent sexual violence adviser—to support her in the legal UK process. Then, the USAF at RAF Lakenheath did exactly the same as in the previous case I described and persuaded Suffolk Police to transfer the case to it because justice would be quicker. Then Emily, the wife of the accused—Tyrion Davis—also came forward to say that she had been raped and sexually assaulted by him on a number of occasions. At the subsequent Lakenheath trial, he was convicted of sexually assaulting both Rebecca and Emily. On discovering that the jury panel at Lakenheath would be composed of Davis’s military peers from a small base, by our jury pool for civil court cases standards, Rebecca said:

“It’s like, if I did something wrong outside of work, having all of my nursing colleagues being on the jury … It doesn’t make sense”.


In another case, Hannes Marschalek boasted to his friends that he had exposed himself from his house in the small town of Littleport, near RAF Lakenheath, to a 16 year-old girl and four young women as they went past. When asked why US Air Force authorities had taken over the case, a spokesperson said that they had

“negotiated jurisdiction over this case with the local police using all available facts at the time”.

The accused was able to negotiate a plea bargain in his case and was convicted on a much lesser charge. He later won an appeal in a US military court this year, which quashed his conviction on technical grounds even though the court papers showed that he had texted two friends to say he had

“definitely just flashed a couple [of] ladies walking from the train, LOL”

and later texted:

“I took all of my clothes off when I walked in. I went to go open a window and I was standing right in front of it when they walked by”.


He also admitted in court that he had done this twice before. The US military court sentenced him to two months. If it had been in a UK court, he would probably have received two years. Then, astonishingly, a US military appeal court dismissed the guilty verdict against him, ruling that prosecutors had made an error by charging him under the wrong offence; I suspect that they realised that it should have been a more serious one.

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[Lord Coaker (Lab)]

My Lords, I thank the noble Baronesses, Lady Brinton and Bennett, and the noble Earl, Lord Minto, for their important contributions on an incredibly important area of law, in relation to which a number of matters have been raised, recently and not so recently, that cause us all concern. For legal reasons, I will read verbatim the information I have before me; this is such an important area, and I do not want to be misquoted as that would not help the various people we wish to see being helped. Noble Lords will notice that when I get towards the end of my remarks, I will make one or two important comments that I hope will offer some, if not total, reassurance to your Lordships and to those who read our proceedings about how we are trying to move forward.

The legal framework governing the allocation of jurisdiction between the UK and a visiting force is set out in UK domestic law through Section 3 of the Visiting Forces Act 1952, with further reference to Section 12. This framework applies both to states that are party to the NATO status of forces agreement and to non-NATO states that have bilateral arrangements with the UK and are designated under Section 1 of the Visiting Forces Act 1952. In all such cases, visiting forces remain subject to the provisions of the Act. Any other agreements or arrangements are modelled on the provisions of the NATO status of forces agreement and reflect the provisions of the Visiting Forces Act 1952. The Visiting Forces Act is already publicly available and the principles within it are applied by UK prosecuting authorities on a case-by-case basis when questions of jurisdiction occur. I hope that provides some reassurance to the noble Baroness, Lady Brinton, as well as the noble Lord, Lord Thomas.

I thank the noble Baroness, Lady Brinton, for her views on the Bill and acknowledge her concerns, and those of others, about the Visiting Forces Act 1952 and why the United States is not explicitly referenced as being subject to the legislation. I reassure her and others that the United States is already included as subject to the Visiting Forces Act by virtue of Section (1)(1)(b). This specifically explains that, along with the countries individually named in Section 1(1)(a), a country will be subject to the Act’s provisions if it is designated by Order in Council. The United States, along with Belgium, France, the Netherlands and Norway, were included in the Visiting Forces (Designation) Order 1954, Statutory Instrument 634/1954, and so fall under the Visiting Forces Act 1952.

On Amendment 55, I thank the noble Baronesses, Lady Bennett and Lady Brinton, for their views on the Bill and acknowledge their interest in the Visiting Forces Act 1952 and the proposal to restrict and regulate how requests for transferring jurisdiction are determined in cases involving qualifying sexual offences. I begin by reassuring them that the Government are fully committed to ensuring that alleged sexual offences perpetrated by visiting forces are treated with the utmost seriousness and that jurisdiction for such cases is decided in accordance with the extant legislation.

I am aware of recent cases highlighted in the media, most notably the case concerning US airman Jacob Wulfson, which raised concerns regarding the extent to which the right decisions regarding jurisdiction for prosecution had been made. Section 3 of the Visiting Forces Act 1952 already sets out the limited circumstances in which jurisdictions should be transferred from the UK to a visiting force. The decisions on whether or not to do so are made independently by the relevant police force or the Crown Prosecution Service in response to any request from a visiting force. The Government are committed to identifying and applying the lessons arising from the issues raised in these cases. This includes the application and operation of jurisdictional arrangements under the Visiting Forces Act 1952 and how these are implemented across the criminal justice system.

In particular, I welcome the action taken by the chair of the National Police Chiefs’ Council, who has written to all chief constables in England and Wales to remind forces of their responsibilities under the Visiting Forces Act 1952. I understand that the National Police Chiefs’ Council is also considering whether further formal guidance for police forces is required to reinforce the principles of the existing legislation.

As I said, I am deeply concerned by the reports of how jurisdiction was handled in the Wulfson case. Victims of such serious offences need to be supported, and their cases treated with the seriousness, dignity and compassion that they deserve. This includes ensuring that jurisdiction for alleged offences is only ceded to a visiting force where absolutely appropriate under UK law and the Crown Prosecution Service’s guidance. I have directed my officials to work with the Home Office, the National Police Chiefs’ Council and any other government departments as required to ensure that the Ministry of Defence is assisting in that outcome. I hope that provides some assurance to the noble Baronesses, Lady Brinton and Lady Bennett, and the noble Earl, Lord Minto. I have no doubt that these discussions will continue, but we understand the seriousness of the topics that have been raised and the need for us to consider how we can deal with this.

[Baroness Brinton (LD)]

I wonder if I could ask a brief question, because it is relevant to my response to the Minister’s contribution. Is there currently an agreement between the UK and the USA, as is described in the Visiting Forces Act and referred to elsewhere? Other countries have it. Is there already such an agreement about protocols for the sort of case we have been discussing this evening, along with other details that are not relevant? I will leave my question at that.

[Lord Coaker (Lab)]

I am concerned about misinforming your Lordships on legal matters. When I take legal advice, I will write as to the correct answer to that. I will copy in other Members of your Lordships’ House and place a copy in the Library.

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[Baroness Brinton (LD)]

My Lords, I thank everyone who spoke in this debate. Earlier, I should also have thanked the Centre for Military Justice, the Guardian and the women I spoke to. I was glad to hear the speech by the noble Baroness, Lady Bennett. Unsurprisingly, we agree almost entirely on the problems. I also agree with her that we will not let this go, whether it goes beyond the passage of this Bill or not. I am grateful too, to the noble Earl, Lord Minto, for his comments. I am particularly pleased that he agreed with the noble Baroness, Lady Bennett, and me that it is clear that sexual attacks on UK soil are not part of Section 3 of the Visiting Forces Act, where the exceptions might be. That is extremely helpful and I am very grateful to him.

I particularly want to thank the Minister for his extremely well-constructed and considered speech. What is really important is that we find a solution. I agree with the Minister that there is provision in the Visiting Forces Act, so his exposition of that was really important. Our problem, as a Parliament, is that we need to resolve the problem that the victims faced. That is why I am very grateful for his comments about the Police Chiefs’ Council and the guidance it is looking at offering. The one organisation that does not seemed to have a role in any of this at the moment is the CPS. It clearly needs to, as there are issues other than taking the statement of the victim, making sure they seek medical help, and all the other issues I outlined in that specific case. There is also the question of charging levels, which would then affect what happens and whether there might be a reason why the case should be considered elsewhere.

I will conclude, because these were only probing amendments on my behalf and that of the noble Lord, Lord Thomas. I wonder whether it would be helpful to have a meeting between Committee and Report with the Minister, somebody from the Home Office who can talk about the policing side and the Police Chiefs’ Council, and somebody from the CPS. What both the noble Baroness, Lady Bennett, and I are trying to achieve is a formal framework that means that one police force cannot do something different from another, and that, as the decision goes up the CPS, the more serious it gets, it should not necessarily stand with a junior prosecutor at the CPS in a particular area. That is how it becomes easy to say, “Yes, okay, take over this case because it will decrease our workload”. That is clearly the argument the US Air Force at Lakenheath were using. On that basis, and given the hour and the number of groups we still have to go through, I will withdraw my amendment.

Amendment 53 withdrawn.

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[Lord Faulks (Non-Afl)]

My Lords, I think we generally agree that our country needs our Armed Forces, including the reserves and the cadets, more than ever. We need to encourage people to join, and we need to look after them when they do. We ask them to risk their lives on our behalf. If we do that, we should ensure that they have the appropriate legal protection.

There used to be a common-law principle of so-called combat immunity. That meant that the courts did not get involved in measuring the responsibility for what occurs in the heat of battle. Aggression that may, with the benefit of hindsight, be seen to be excessive should not be analysed, many years later, in the studied calm of a courtroom, with lawyers employing slippery words such as “proportionality”. This is to say nothing of so-called blue-on-blue or friendly-fire incidents, which are inevitable from time to time.

I would not want to give our Armed Forces a free pass legally; they would not want one. The law of armed conflict is necessary and well established. The Geneva conventions and the accumulation of international conventions and treaties are generally described as international humanitarian law, which is generally respected. What worries me, as it does the noble Baroness, Lady Goldie, is the ECHR and its incorporation into our law by the Human Rights Act 1998. It has brought the law into places where it has no business.

The Strasbourg jurisdiction in this area has become exorbitant. It has held, for example, as the noble Baroness said, that the European—yes, European—Convention on Human Rights applies to theatres of war in Afghanistan and Iraq. Reference was made to Al-Skeini. There is also a case called Al-Jedda. These cases brought about, among other things, the persecution of our troops by lawyers such as Phil Shiner, a lawyer eventually imprisoned for his deeds but not without causing immense damage expense before his imprisonment. The causation, I fear, is clearly established by the decisions of human rights lawyers to rely on the convention in an inappropriate way.

The rights embodied in the convention are in themselves wholly unexceptionable, but the living instrument approach has meant that judges have approached its application in what might be described as an open-textured way, resulting in real uncertainty as to what our troops are entitled to do legally. Article 2, on the right to life, has, for example, been held to justify a claim against the Ministry of Defence in connection with the supply of Land Rovers: it is the case of Smith v Ministry of Defence.

For some time now, the think tank Policy Exchange has focused on the so-called problems of lawfare. Tom Tugendhat MP, now shadow Foreign Secretary, wrote a paper some time ago, entitled The Fog of Law. It remarked on all these facets, which are causing such a difficulty for our troops.

We have now reached a position where our troops are embarrassed in front of allies, and we are accused by our allies of legal freeloading when lawyers try to explain our legal position. Lawyers are conservative in the advice that they give, if not in their politics. The result is that our troops are vulnerable to legal attack, and their leaders may well become inappropriately circumspect in their approach, in the light of the legal advice that they receive.

The amendment attempts to give our reserves and all our troops proper protection from the incursions of the ECHR. I ask the Minister, for whom we all have great respect, to explain whether the Government consider that the current state of the law is justifiable and whether it is truly in the interests of our servicemen and servicewomen or, indeed, in the public interest.

[Baroness Brinton (LD)]

My Lords, I am very grateful to both the noble Baroness, Lady Goldie, and the noble Lord, Lord Faulks, for their introduction to the amendment and for explaining it in detail. I am not a lawyer, so forgive me for not being able to respond to some of the cases that the noble Lord raised. From these Benches, we have complete sympathy with the principles of sorting out this lawfare issue, because it is clearly a problem.

Having listened particularly to the noble Baroness, Lady Goldie, our concern is whether, under the terms of Article 15 of the ECHR, even this level of derogation is permissible. She quoted from paragraph 1 of Article 15 but not from paragraph 2, which says:

“No derogation from Article 2”—


the right to life—

“except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7”—

torture, slavery and retrospective criminal penalties—

“shall be made under this provision”.

That paragraph means that it is not possible for the UK to derogate.

I just wondered whether, when the noble Baroness was Minister, there were any discussions with the Council of Europe on this issue, rather than a particular court case. We cannot be the only country affected. It may be that it is particularly bad in the UK. I understand that—not just from Article 15 of the ECHR itself, but from the Government’s independent review of the Human Rights Act in 2021, which referred to the progress of the Overseas Operations (Service Personnel and Veterans) Bill, which the noble Baroness, Lady Goldie, referred to. It is explained that the amendment was withdrawn partly because of the very strong feelings in your Lordships’ House. It referred specifically to this point in Article 15 of the ECHR, and the then Government decided that they could not continue with the amendment. Having asked the noble Baroness, Lady Goldie, the question, which is perhaps slightly unfair because she is no longer a Minister, I ask the Minister whether any further discussions have been had with the Council of Europe on this problem. As we know, the ECHR is a living document, and if there are issues it is quite probable that the members would agree to some changes—perhaps expanding the level of articles that can be covered by a derogation.

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[Lord De Mauley (Con)]

I support Amendment 61 in the name of the noble Baroness, Lady Smith, requiring an independent review of Armed Forces recruitment and retention. At this late hour, I will just say that, at a time when there are nearly a million young people not in education, employment or training, we cannot even recruit 10,000 a year, and our Armed Forces are well below the relatively tiny strength at which they are funded to be. This suggests that something is seriously wrong with the recruiting process, and the report needs to be done.

[Baroness Brinton (LD)]

My Lords, I shall briefly speak to Amendment 62. My noble friend raised the point about it being important for veterans to be able to have their details in their hands. The NHS guidance for veterans specifically notes that it takes several months for the full records to follow the veterans, and if veterans have complex health issues but no information, the GPs that they see are in deep trouble.

On amputees, importantly, unlike many amputees in the civilian world, most amputees in the military world also have a significant number of other injuries. There is already an issue about amputees in the civilian world having to have repeat PIP tests, but it seems sensible to look at this area.

[The Earl of Minto (Con)]

Briefly, my Lords, the noble Baroness, Lady Smith, has raised some important issues in these amendments. Between 1999 and 2025 there were only seven years in which more people joined the regular forces than left them, and the strategic defence review was blunt enough to call the result a workforce crisis.

I might add one further point on retention. Retention in the Armed Forces will not be improved by prosecuting veterans who served in Northern Ireland fighting the IRA. My noble friend Lady Goldie has already mentioned the adverse impact that the Government’s policy is having. Retention will also surely be improved by delivering the investment in the forces housing that the Government have promised. These are two actions that the Government could take immediately to improve retention and recruitment: drop the widely despised Troubles Bill and deliver the housing investment now, rather than pushing the funding further back, as they have done in the defence investment plan.

I completely concur with the noble Baroness, Lady Brinton, about medical records. That needs tidying up pretty quickly and would definitely help. I look forward to hearing the Minister’s response.