Overseas Operations (Service Personnel and Veterans) Bill

Baroness Smith of Newnham Excerpts

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

[Baroness Smith of Newnham (LD) [V]]

My Lords, I start, as did the noble Baroness, Lady Goldie, my noble friend Lord Campbell of Pittenweem and the noble Lord, Lord Touhig, by paying my debt of gratitude to the Armed Forces, to our service personnel and to the veterans and their families. One thing that unites everyone who has spoken in this debate is our commitment to our Armed Forces and the sense that it is vital that they have the support they need.

As the Minister pointed out in her opening remarks, the Government had a manifesto commitment to try to deal with vexatious claims. Although the remarks of my noble friend Lord Thomas of Gresford may have suggested that these Benches would like to throw out this Bill at Second Reading—that seemed to be the understanding of the noble Lord, Lord King—that is not the case. We are certainly not proposing suddenly to demand a vote at Second Reading against the Bill.

I am slightly less sceptical than my noble friend on first reading, but the Bill appears on the face of it to be dealing with a problem which many noble Lords have pointed out is particularly difficult. As the noble Lord, Lord Truscott, said, we want to deal with vexatious, venal and vile cases but, as the right reverend Prelate the Bishop of Portsmouth pointed out, there is a very significant difficulty with this piece of legislation. There is a marked difference between what Her Majesty’s Government say that they wish to do—that the Bill delivers the Conservative manifesto commitment to address vexatious claims, as said on the fact sheet that the Secretary of State’s special adviser sent to speakers in this debate this morning—and what is actually in the Bill.

There are serious concerns about unintended consequences. As my noble friend Lady Northover pointed out, the Bill is very seriously flawed. She suggested that she did not think that she had ever participated on a piece of legislation that was so flawed. It has been pointed out that the legislation passed through the other place unscathed, as the noble Baroness, Lady Deech, put it, and unamended. However, that was not because it was not flawed; it perhaps passed because the Government have an 80-seat majority. Very important amendments were put forward by David Davis and Dan Jarvis, many of which I believe I and my colleagues on the Liberal Democrat Benches and noble Lords across the House will seek to retable in Committee, because there are many problems with this Bill.

Dealing with vexatious claims is important. Nobody wishes members of our Armed Forces to be subject to vexatious claims, nor do repeated investigations serve anybody well. However, there is a very serious question and concern about this Bill, about whether it does anything at all to stop vexatious claims and whether it will stop repeated investigations. The only point that offers some hope that it might deal with vexatious issues is in Clause 3(2)(b), which deals with previous investigations. Beyond that, the Bill does not talk about investigations; it talks about prosecutions.

The noble Baroness, Lady Buscombe, seemed to suggest that the higher threshold for prosecutions was going to deal with the problem of investigations. I could not understand the logic of that point. Could the Minister explain whether she thinks that the points in the legislation about prosecution will do anything at all to deal with the number of investigations, which is what causes the mental stress for so many of our service men and women and veterans? The issue of dealing with vexatious claims may not be helped by this legislation and, as many noble Lords have pointed out, including the noble Viscount, Lord Trenchard, there is a concern that the ICC may take an interest in our service men and women if our legislation is changed in accordance with the Bill. Surely that is an unintended consequence that the Government do not wish to come about.

There are various problems with the Bill. One is the basic presumption against prosecution after five years but, in particular, the concern that many noble Lords talked about: the exclusion of torture from Schedule 1. I do not understand why torture, war crimes and genocide are not there, and that seems to be very much the view across the House. The Minister in her introductory remarks seemed to suggest that sexual offences were part of Schedule 1 because they would never be authorised in war or any other context—they are always illegal. Surely torture is always illegal. When do Her Majesty’s Government ever envisage saying, “Go ahead, please torture”? Surely the exception to the presumption should also be included in Schedule 1. An amendment to that effect is necessary. My right honourable friend Alistair Carmichael MP said in the other place that he wanted to focus on the use of torture because it illustrates well the lack of logic in not including torture in Schedule 1. Where there is evidence of torture, no prosecutor sitting in his or her office should say, “Well, there’s evidence of torture but it is presumed that we would not prosecute it.” What sort of signal does that send?

We can see that the Bill’s architecture is such that torture is clearly designed to belong in Schedule 1, along with sexual offences. That makes perfect sense. It is a matter of logic, not law. The provisions in that schedule cover eventualities whose use is never in any circumstances acceptable. Does the Minister agree that torture is never acceptable? Will she consider taking back to her colleagues in the Ministry of Defence a suggestion that torture needs to be added to Schedule 1? If the Government do not bring forward an amendment, she can rest assured that these Benches and noble Lords across the House will bring forward amendments.

Clause 12 on the derogation from the European Court of Human Rights is also a clause too far. It is an area where the Liberal Democrats will certainly bring forward an amendment.

The Bill might have good intentions but, as the noble Lord, Lord Faulks, suggested, the optics of Part 1 are not good. Indeed, the optics of most of the Bill are not good. We need to think what signals we are sending, both to our allies across the world and to countries that we might think of as our opponents or enemies. As my noble friend Lord Thomas of Gresford asked, how would we feel if other countries adopted the same provisions that the Government are putting forward here, and we were told that cases could not be brought in allegations of torture of our own service men and women or, indeed, anybody else, precisely because there was a presumption against prosecution?

The measures that we are putting forward will have global resonance. Is that the sort of leadership that global Britain wants? Should we not seek to lead by example? On the day in which Joe Biden was inaugurated as President of the United States and said that the US should seek to

“lead not merely by the example of our power, but by the power of our example”,

should the United Kingdom not seek to draw on our long legacy of leading calls for the prohibition of torture and say that we will always stand up against torture and include that in Schedule 1?

The Bill is deeply flawed. For it to pass your Lordships’ House and be appropriate as a piece of legislation for the United Kingdom, it needs significant amendment. At present, it is not acceptable. As the noble Lord, Lord McCrea, said, I hope that together we can bring forward legislation that is worthy of support. I hope that the Minister might provide some amendments in Committee in order that we can indeed take the Bill forward.