Overseas Operations (Service Personnel and Veterans) Bill

Baroness Chakrabarti Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 20th January 2021 Lords Chamber

[Baroness Chakrabarti (Lab) [V]]

My Lords, on the day when so many around the world breathe a sigh of relief at the departure of Donald Trump from the US presidential office that he has so tarnished, I fear that we must debate a policy that has at times, though not here, been almost Trumpian in its promotion and, if enacted, will in my view do considerable damage to the UK’s standing in the world. This is not a British loyalty test. The Bill does not give greater meaningful protection to the brave men and women of our Armed Forces. It is not at all as hitherto advertised.

The Government are fortunate indeed to have the Minister presenting the Bill to your Lordships’ House; in my experience, she is one of the most courteous and skilful advocates in either Chamber. Sadly, though, I cannot say that for those who presented the Bill in the other place, with blanket attacks on human rights and lawyers as an entire species. At one point the atmosphere was so toxic that a young and new Conservative Member, speaking from the very back of those Benches during the truncated debate, appeared almost to apologise for once having studied law. Is that what our democracy has come to?

I do not want anyone, let alone those that we put in harm’s way in open or covert conflicts not of their own making, to fear lengthy, shoddy repeat or politicised investigations, but Part 1 of the Bill does nothing at all to address the speed, finality or robustness of criminal investigations arising from overseas conflicts. Instead, as has been pointed out by a host of critics, many of them of distinguished military rank and service, it creates a de facto presumptive five-year statute of limitations on even grave crimes such as torture and restricts the decision to prosecute after that point to a politician, the Attorney-General.

I fear that the distinction made by the Minister between torture and sex offences was not convincing as, sadly, both can be the subject of false allegation. Five years is a particularly short time in relation to secret operations. Such a limitation, as has been said, will only increase the possibility of British personnel facing the jurisdiction of international courts in future. That would be a perverse outcome.

On the involvement of the Attorney-General, I am afraid I have to agree with the noble Lord, Lord Carlile, not the noble and learned Lord, Lord Garnier, however much I admire him. The involvement of the Attorney-General risks a prosecution being prevented by the very same law officer who previously advised on the legality of the precise military operation now impugned. Alternatively, it risks a prosecution being brought by a subsequent Government’s principal lawyer whose party may have been very publicly critical of the conflict now in question. Both scenarios risk politicisation or at least jeopardising the trust of both the public and, crucially, service personnel themselves.

Part 2 of the Bill is just as troubling, not least because it would strip away the vital protection for veterans and their families who may have had no advice or bad advice or been completely unable to establish a causation between their suffering, which they may well have known about, and negligence by the MoD within the six-year period. Instead, the courts are currently well capable of handling their discretion under the Limitation Act and MoD lawyers are well able to robustly defend the Government. This is clearly a protection for a government department, perhaps even for its political masters, but not for those veterans who too often have been put in the most dangerous and damaging circumstances with inadequate kit, training and planning. It is a breach of trust with them.

As for the duty to consider derogations from the Convention on Human Rights, this provision is either totally unnecessary, dangerous showboating or an attempt domestically to dilute the convention’s own very high bar for derogation, which is, as we have heard from the noble and learned Lord, Lord Hope, strict necessity

“in time of war or other public emergency threatening the life of the nation”.

That will not cover all overseas operations, and of course no derogation at all is allowed from the absolute prohibition on torture.

The overwhelming majority of Armed Forces personnel and veterans I have ever had the privilege of meeting are decent, disciplined and brave. They do not fear human rights or the rule of law; to the contrary, they are inspired to fight for them, sometimes at devastating personal cost. This Bill neither honours nor protects them—quite the opposite.