Overseas Operations (Service Personnel and Veterans) Bill

Debate between Baroness Chakrabarti and Lord Stirrup

Report stage
Tuesday 13th April 2021 Lords Chamber

[Baroness Chakrabarti (Lab) [V]]

My Lords, I support these amendments, with a very strong preference for Amendments 7 and 8, although I understand that they will not be pressed; half a loaf is better than no bread. It is clear to me that a combination of rules and discretion is what the law is. This is the protection against arbitrary action, and I have heard no compelling argument whatever at any point in the proceedings relating to this legislation for limiting the discretion of the courts completely, particularly in the light of the sorts of cases described by my noble friend Lord Hendy.

However, I was interested in the newly expressed concerns of the noble Lord, Lord Faulks, about discrimination; his view of equal treatment under the law is novel to me. He seems to be concerned about discrimination in relation to a Bill, which he supports, that is inherently discriminatory. He is concerned about giving extra protection to a particular class of claimant—namely, veterans and personnel, who are supposed to be protected by this legislation. But he is not concerned, it would seem, about giving special protection to a class of defendants—the MoD, the Executive—which is the initiator of the legislation as well as the civil defendant. He is not concerned about giving special protection and limitations to criminal defendants in the military, but he is concerned to give the protection offered by Amendment 13 when it is not being offered to overseas civilians, yet he does not support Amendments 7 and 8. This is not levelling up; it is levelling down.

As I say, I would very much prefer Amendments 7 and 8 to be pressed, but in their absence I will support Amendment 13. The Government brought forward this legislation with a promise to give protection to service personnel and veterans but, instead, if they do not go along with at least Amendment 13, it will protect the Exchequer—the Ministry of Defence—from the very people that it claims to protect.

[Lord Stirrup (CB)]

My Lords, I will speak to Amendment 13, to which I have attached my name. Its purpose is to ensure that service personnel are not debarred by time from pursuing claims against the Government for harms suffered on overseas operations. It seems strange to me that a Bill with the avowed purpose of providing government reassurance to service personnel seems intent on preventing those very personnel from seeking redress from that same Government. This may not be the intention, but it is one of the potential consequences of the Bill as it is currently worded.

In responding to a similar amendment in Committee, the noble and learned Lord the Advocate-General for Scotland, argued against it because it would have very limited effect. At Second Reading, the Government said that some 94% of service personnel and veterans who brought claims relating to events in Iraq and Afghanistan had done so within six years. He later confirmed that this figure included those who had brought a claim within six years of the date of knowledge. My response is to repeat the question that I posed on that occasion, and which was never answered: are we to assume then that, had the proposed timescale been in effect, the Government believe that it would have been acceptable for the other 6% to lose the opportunity to pursue their cases?

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[Baroness Chakrabarti (Lab) [V]]

My Lords, it is a privilege to follow the noble and gallant Lord, Lord Boyce, in support of the vital amendment tabled by the noble Lord, Lord Dannatt. It is vital because there does not seem to be anything quite like it on the statute book.

While the Bill, controversially, attempts to protect the MoD from civil suit and individual members of the Armed Forces and veterans from criminal prosecution, it does not provide actual support for them. It does not provide mental health support, legal support or anything else mentioned in the amendment of the noble Lord, Lord Dannatt.

I will not repeat what I said earlier, but even the Statement that was made today clearly to reassure your Lordships that the amendment tabled by the noble Lord, Lord Dannatt, is not necessary gives me cause for concern. There are holes in the automatic non-means-tested legal advice and support, which should be automatic and non-means-tested for any serving member of the Armed Forces or veteran, whether they are facing investigation or prosecution or are a potential witness. That was the biggest problem I found.

Even the mental health support was less than specific or certain and seemed to be about signposting people to general NHS services, even though we all accept that people serving overseas are under particular strain. If their mental health is under particular strain and they are especially exposed to the law, as the Government maintain, why do they not get specific statutory and automatic support?

This is perhaps one of the most important parts of the debate today, and this amendment is possibly one of the most important that has been tabled. I sincerely hope that the noble Lord, Lord Dannatt, will press it to a vote.

[Lord Stirrup (CB)]

My Lords, I start by adding my thanks to the Minister for the time and trouble she has taken since Committee to listen to the concerns that my noble friend Lord Dannatt and the other movers of this amendment, of whom I am one, have sought to address. The Government have argued, and no doubt will continue to argue, that what we are trying to achieve is both unnecessary and dangerous. I am unconvinced and I shall try to explain why.

In her response in Committee, the Minister pointed to the mechanisms and processes already in place to support service personnel and veterans. There are indeed both official and charitable structures set up for this purpose; they do a great deal of excellent work, as today’s ministerial Statement made clear. But as I tried to explain in Committee, the situation of those accused of criminal activities and subject to the corresponding and prolonged investigations is particularly difficult. I pointed out that the stresses on these individuals and their families are profound and enduring.

These people are not just accused of a crime; they are charged with trampling underfoot the values and ethos that are an essential element of the special body of which they have been a trusted part. They are suspected of betraying their comrades and bringing them into disrepute. I ask noble Lords to imagine what sort of impact all of that has on people who are members of such a close and unique community.

It is alas true that in some cases the opprobrium will be deserved, but we also know that in such circumstances the innocent and the guilty will suffer alike. Even a subsequent and unequivocal demonstration of innocence will not entirely remove the shadow from their lives or allow them to feel quite the same ever again.

Given such horrendous and, in some cases, undeserved consequences, is it so unreasonable to seek a special degree of support for these people? Is it unreasonable to ask that the requirement for and processes to deliver such support should be codified? After all, Part 1 of this Bill is itself mostly about codifying procedures that nearly everyone agrees a competent prosecuting authority would follow in any case. If these need to be set out in the Bill, why not the processes for ensuring the appropriate source of support for service personnel and veterans? To argue in favour of the former and against the latter would strike me as strangely inconsistent. Just to be clear, I do not believe that defence information notices constitute adequate codification.

The dangers that the Government seem to think lurk within this amendment apparently derive from the legal rights it would afford to those it seeks to protect. The accused could sue the Government if they thought that they had been inadequately supported—and who is to say what level of support should be considered adequate? The only beneficiaries, it appears, would be the legal profession.

Well, my first response would be that if the Government failed to provide the appropriate support, then they should be liable. It seems that in this day and age, we are keen to afford justiciable rights to just about everyone—except our service men and women. As to the definition of adequacy, I entirely accept that Amendment 14 as worded may not have adequately circumscribed this, but is it really beyond the wit of government lawyers to come up with a form of words that would do the trick? Surely, the concept of reasonableness and the appropriate kinds of test are not alien to our legal system.

The noble Lord, Lord Faulks, has said that this amendment would do nothing to prevent future Shiners, and I agree with him. I also agree wholeheartedly that tackling the difficulties caused by the extraterritorial application of the Human Rights Act is essential. None of this, though, obviates the need to support those who need our help.

The Government’s argument appears, in essence, to be, “We don’t think this amendment is necessary because we already do what it suggests, but we’re rather afraid of being sued for not doing what the amendment proposes.” This does not strike me as a tenable position. I urge the Government to think again.

Overseas Operations (Service Personnel and Veterans) Bill

Debate between Baroness Chakrabarti and Lord Stirrup

Committee stage
Thursday 11th March 2021 Lords Chamber

[Lord Stirrup (CB)]

My Lords, I speak in support of this amendment, to which I have attached my name. In doing so, I convey the apologies of my noble and gallant friend Lord Boyce, whose name is also on the amendment but who is prevented by a medical issue from speaking this afternoon.

To explain why my noble and gallant friend and I support the amendment, it is necessary for me to go back to the very purpose of the Bill. It is in the Minister’s own words to reassure service personnel and veterans that the Government have their back and that they will be offered a degree of protection from the pressures and strains of malicious prosecutions. But the Government know that prosecutions are not the issue; that much has been widely acknowledged during debates on the Bill to this point. It is the seemingly endless cycle of accusations and investigations that is casting such a shadow over our service personnel and veterans, not the prospect of being brought to trial.

It is a principle of our legal system that an accused person is innocent until proved guilty—but this is true only in a narrow legal sense. It simply means that the burden of proof lies with the accuser, not the defender; it does not mean that an accused person is treated as innocent. For example, they may be held in detention. They are certainly subject to the wondering if not outright suspicion of observers, and they certainly suffer the agonies of uncertainty and the mortification of being suspected of and, in the minds of some, guilty of a criminal offence. The strain on them and their families is immense. Can anyone doubt the anguish that assailed those accused as a result of Operation Midland, despite the fact that not only were there no prosecutions but their accuser was shown to be lying? Can anyone deny that they suffered acutely—and in some cases still do?

Accusations must certainly be investigated, but such investigations will bring pain to guilty and innocent alike. How much more is this the case when the investigations are repeated and protracted? That is the evil that this Bill should address. The Government’s view seems to be that it is not possible to legislate on investigations since that would almost certainly increase the risk of UK service personnel and veterans coming under the scrutiny of the International Criminal Court. They have therefore taken an indirect approach to the problem, in the hope that codifying the factors that must be considered by a prosecutor will discourage speculative and malicious accusations. Of course, this is a wholly untested thesis; it may work to an extent, but equally it may have little impact.

For my part, I believe that the Government have by their own lights set themselves an impossible task in this Bill. They have recognised that they cannot address the real problem directly, so has come at it obliquely with a proposition that will have dubious benefits and poses real presentational risks—risks that could harm the reputation of our Armed Forces. Meanwhile, the underlying issue remains: the pressure of investigations. If that cannot be addressed legislatively, it is surely incumbent on the Government to ensure that those accused are supported appropriately during their ordeal—hence this amendment.

If we cannot entirely prevent the suffering, at least let us do all that we can to ameliorate it. The Government may say that they do so already, and there is no need to legislate on the matter, but I would find such a view puzzling. The Government have accepted that prosecutors already take into account the considerations set out in the Bill, but they regard their codification in law as necessary for the reassurance of our military personnel. If they take that view on something that they admit is not the real problem, how can they take a contrary view on something that is? That would seem to me to be an extraordinary contradiction.

The many amendments proposed to this Bill so far have sought largely to ameliorate the harmful effects that it might have. This amendment, on the other hand, seeks to tackle as far as possible the root of the problem that the Bill is intended to address, and I commend it to the Government.

[Baroness Chakrabarti (Lab) [V]]

My Lords, what a privilege to have heard, let alone to follow, the speech of the noble and gallant Lord, Lord Stirrup, so much of which I completely agreed with. One thing I would say is that, while legislators are limited in what they can do in this regard—and he and his noble friends have had a very good go at using a probing amendment to try to get the Government to stand by veterans and service personnel in real terms—the Government can actually do more.

They could do more even now to address the problem of investigations. Of course, they could not do so by legislation alone, but they could throw resources at it and redesign the nature of investigations, and they could include the noble and gallant Lord and his colleagues, among others, in creating a new investigation system that would inspire the confidence of the public at large, of wretched human rights lawyers like me and, crucially, of veterans and personnel. They could do what we have said in recent days is essential, which is to ensure that investigations are robust, independent and speedy, and not repeated. That could do a great deal to avoid the kind of anxiety that we have heard so much about in consideration of this Bill.

That is not something that any mere legislators can do, so we have to probe in this way and table amendments, such as the previous one from my noble friend Lord Tunnicliffe about laying reports, and this more extensive one from the noble Lord, Lord Dannatt, the noble and gallant Lords, Lord Stirrup and Lord Boyce, and my noble friend. These amendments are, of course, necessarily limited by the scope of the Bill. I therefore understand why, for example, the noble Lord could not include in the duty of care to service personnel chronic issues of housing and of mental health problems beyond just those caused by litigation.