Overseas Operations (Service Personnel and Veterans) Bill

Lord Browne of Ladyton Excerpts

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

[Lord Browne of Ladyton (Lab) [V]]

My Lords, during my time as Secretary of State, I had the privilege to work closely with our Armed Forces. I have the highest regard for those who serve and for their integrity. Sadly, we are all too familiar with stories of our Armed Forces personnel being hounded for years and years. The Bill is to be commended for seeking to address such abuses. It seeks to find a balance between the difficult truths that, sometimes, service personnel have been the subject of prolonged legal jeopardy, while sometimes they have broken the laws of war, as we have heard—acts which must be investigated and, where the evidence is sufficient, reliable, and credible, prosecuted and punished.

We all have a responsibility for taking too long to deal with these issues, but the fact is that the Bill does not resolve the problem of repeated and prolonged investigations because the Government have chosen to frame the issue as a legal problem, when the truth is that it is a problem about the timeliness and quality of investigations. Further, the Minister responsible for the passage of the Bill, Johnny Mercer, knows this to be the case. In a Guardian podcast in 2019, he was challenged about the existence of video evidence of apparent abuse, specifically “torture and beatings of civilians”. His interviewer suggested to him that “something has gone very wrong there surely?” I will read out his reply in full, because it is important: “You are absolutely right, and it is a very fair point, that actually one of the biggest problems with this was the military’s inability to investigate itself properly and the standard of those investigations, and it is that precise point which is being challenged by other lawyers and I totally understand that, and this behaviour has been totally unacceptable and the military has a role to play in this as well, and can’t just blame everybody else. If those investigations were done properly and self-regulation had occurred, we probably wouldn’t be here today.”

It is no answer to this criticism that the Government have now belatedly set up a further inquiry into how these investigations are conducted. Not only is the Bill aimed at the wrong target, it will see Britain reneging on its international legal commitments, none more so than our legal commitments to investigate allegations of torture and international crimes and, where appropriate, prosecute.

The Government rightly have decided to exclude sexual offences from the Bill. In response to the public consultation, the MoD said that

“the use of sexual violence or sexual exploitation during conflict is never acceptable in any circumstances.”

Nor is torture. Torture is not only ineffective but illegal. For these reasons, we need unqualified safeguards on torture. Ministers who deny that the triple lock will weaken our stance on torture dismiss these arguments with a wave of a hand, even though a growing and diverse coalition of military, legal and other experts maintain that it will do exactly that, and explain comprehensively why.

The Bill undermines our obligations under the Geneva conventions and the UN Convention against Torture to investigate and prosecute grave breaches of international humanitarian law. It promotes the dangerous idea—recently attempted, unsuccessfully, during the passage of the UK Internal Market Act—that the UK can simply set aside international obligations in law. Its entry into force will be yet more evidence of what Theresa May today called the abandonment of the UK’s moral leadership on the world stage.

Additionally, what is effectively a de facto statute of limitations on the prosecution of war crimes makes it much more likely that British soldiers will be prosecuted by the International Criminal Court, which acts only where countries are unwilling to prosecute their own citizens. Recently, the Office of the Prosecutor of the International Criminal Court warned that if a proposed presumption against prosecution were introduced, it

“would need to consider its potential impact on the ability of the UK authorities to investigate and/or prosecute crimes allegedly committed by members of the British armed forces … against the standards of inactivity and genuineness set out in Article 17”

of the Rome Statute. We should remember that we have a solemn commitment to our Armed Forces, given on ratification, that no member would ever be at risk of appearing in The Hague.

Finally, the provision in the Bill which requires the Government to consider derogating from the European Convention on Human Rights has been described as

“legally meaningless and only has rhetorical value.”

What exactly is the objective? Do the Government think that they can simply state that human rights do not apply? Do they appreciate that they cannot derogate from the prohibition of torture and can do so only in respect of killing if it happens because of lawful acts of war, which then engages the Geneva conventions?

I end with a question for the Minister. For what precisely do the Government want this provision, and how will they use it?

Armed Forces: Reduction

Lord Browne of Ladyton Excerpts

Thursday 22nd October 2020 Lords Chamber

[Baroness Goldie (Con)]

The noble Lord raises significant issues. His question impinges on two aspects: one is the integrated review and the other is the spending review. In relation to the latter, the spending review process continues in respect of the defence budget, and the Ministry of Defence is in discussion with the Treasury on the department’s settlement. In relation to the integrated review, because of the decision to move to a one-year spending review, the Government are considering the implications for the completion of the integrated review and will provide an update to Parliament once that is decided.

[Lord Browne of Ladyton (Lab) [V]]

My Lords, on 30 September, when launching the Integrated Operating Concept 2025, the CDS described the UK’s future campaign posture as demanding and said—I shall read this in short—that we would see

“armed forces much more in use”

and

“engaged and forward-deployed”—

with

“training and exercising being delivered as operations”—

and that it would involve supporting other countries in a pattern of possible combat operations against common threats.

Since then, as well as anonymous government briefings that a cost-cutting Army will slash its manpower by 7,000, we learn from MoD evidence to the Defence Select Committee that by 2025, the Army will not even be able to meet the demands of the 2015 Strategic Defence and Security Review, never mind the IOC. Can the Minister explain those apparent contradictions?

[Baroness Goldie (Con)]

The noble Lord is predicating his question on speculation and hypothesis. I can respond to his question only in relation to facts as I am aware of them. The core obligation of the MoD is, of course, to protect the UK and keep our citizens safe. We shall always prioritise how we respond to the threats that the UK faces. For example, the Armed Forces continue to meet all their current commitments, keeping the country and its interests safe.

Covid-19: Military Operations and Support

Lord Browne of Ladyton Excerpts

Thursday 10th September 2020 Lords Chamber

[Baroness Goldie (Con)]

Obviously, at specific times certain personnel have been affected, depending on their health situation. We have taken steps to enable safe training, including social distancing during roll calls and physical training, isolating at the beginning of courses and reconfiguring communal spaces such as canteens, sleeping quarters and classrooms. Therefore, a consistent pattern of training has continued.

[Lord Browne of Ladyton (Lab) [V]]

My Lords, NATO has already felt the effects of the pandemic: Norway called off Cold Response 2020, Exercise Defender-Europe 20 was restructured and trimmed and Covid-19 entered the Latvian-based NATO battlegroup. Meanwhile, the US European Command has cancelled or postponed a lot of planned exercises. Against this background, what steps is NATO taking to ensure that it will be able to perform core tasks and missions, in the short term and in the longer term, in the absence of these exercises?

[Baroness Goldie (Con)]

The noble Lord is quite correct that decisions were taken to pause certain exercises, and that was the correct decision with regard to the safety and well-being of those who otherwise would have participated. NATO and all member states are anxious to resume activity when circumstances permit that to happen. We must take account of situations in host countries, not just their health situation but what their particular requirements and restrictions may be. I am confident there is a resolve on the part of NATO and the member states to do whatever we can to continue activity, but we must always have at the forefront of that the health, well-being and safety of the personnel of all member states.

Torture Overseas: Ministry of Defence Policy

Lord Browne of Ladyton Excerpts

Monday 20th May 2019 Lords Chamber

[Earl Howe]

My noble friend is absolutely right: torture is never justified, and the Government will not countenance a situation where they are complicit in it. The internal MoD guidance was intended to have exactly the same meaning as the consolidated guidance. We now realise that there is scope for ambiguity. That ambiguity will be removed when the guidance is revised, and we will do that upon receipt of the Information Commissioner’s comprehensive advice on how the government-wide guidance should be amended.

[Lord Browne of Ladyton (Lab)]

My Lords, in June 2018 the Intelligence and Security Committee published a report, as has already been referred to. Recommendation JJ, which can be found on page 103 of annexe A, specifically says that the consolidated guidance,

“is insufficiently clear as to the role of Ministers, and what—in broad terms—can and cannot be authorised. For example, the Guidance should specifically refer to the prohibition on torture enshrined in domestic and international law to make it clear that Ministers cannot lawfully authorise action which they know or believe would result in torture”.

The Government gave a very long response to that, with which I will not take up the House’s time—others can read it for themselves—but in the last sentence the Government promised to,

“consider this recommendation further in light of any proposals from the Investigatory Powers Commissioner”.

How on earth has it come about that someone in the Ministry of Defence can draft a policy document in the light of that specific recommendation in the terms that have been revealed today and not even seek the IPCO’s views on it? There is something fundamentally wrong with the way in which that part of the MoD operates and it has to be fixed.

[Earl Howe]

The noble Lord should bear in mind that this has never been a live issue in the Ministry of Defence. The point that he makes is also weakened by the fact that the Investigatory Powers Commissioner does not judge every piece of paper that happens to circulate across government; he or she will judge a department by its actions. To date, the commissioner has judged the Ministry of Defence to have acted entirely in accordance with the consolidated guidance.

If I mis-spoke in responding to my noble friend Lord King and referred to the Investigatory Powers Commissioner as the Information Commissioner, I apologise. I did not mean to do that.

Modernising Defence Programme

Lord Browne of Ladyton Excerpts

Tuesday 18th December 2018 Lords Chamber

[Earl Howe]

My Lords, I can deal very quickly with the second part of the noble and gallant Lord’s question. The Ministry of Defence stands ready to support other government departments if called upon, and if we find that the resources of those departments are insufficient in themselves. Having said that, we have received no formal bids as yet from other departments, despite the fact that we have asked them what they envisage requiring. There will be approximately 3,500 personnel standing ready in case of need to meet such situations.

Resilience has been a major theme of our deliberations. There are quite a number of strands to that. One is to look carefully at how we can enhance our chemical, biological, radiological and nuclear defence capabilities, investing further in Porton Down. We are also, as the report makes clear, enhancing our ability to share submarine threat data with our closest NATO allies. We are improving our secure communications, protecting our networks from cyberattacks and improving our ability to exchange information with NATO partners, as I have said.

We are also clear that we need to invest in improving power-generation capabilities for both Type 23 and Type 45 Royal Navy ships, enhancing their overall capability and productivity. There has been criticism, as I am sure the noble and gallant Lord is aware, of the extent to which some Royal Navy ships have been kept in port rather than being deployed. We are clear that we need to enable the Royal Navy to do better in that area.

The other obvious example of improving resilience is increasing the provision of spares and support to enhance global deployability and presence, particularly as regards the helicopter fleet.

[Lord Browne of Ladyton (Lab)]

My Lords, I woke this morning to the news of the transformation fund of £160 million. Clearly, that was what the MoD briefed last night from this Statement because that was what the Secretary of State wanted the media to focus on—and they have done, for most of today. So I too will focus on this in your Lordships’ House.

Since the Statement was first made, the MoD has briefed further that the fund will be used in part to look at artificial intelligence and its uses in a series of new programmes, as well as—this is the phrase that I understand was used—tackling threats to submarines. These must be new threats. The Statement itself expresses another ambition for it, saying:

“This fund will be available for new innovative military capability which allows us to stay one step ahead of our adversaries”.


This seems a heroic ambition for £160 million. I say that because, in 2014, Google paid £400 million for a University College London spin-out called DeepMind. The 2017 accounts of that business show that Google DeepMind staff costs are in excess of £200 million a year. So it does not seem that £160 million will go very far in that challenging environment.

In order that your Lordships’ House and others who will have to do so can assess what this money will be used for and whether that is a justifiable use with any significant result, can the Minister explain—either today or in writing—what series of new programmes this money will be deployed to develop? What are these new threats to our submarines that need to be tackled and are not already accounted for in the MoD budget?

[Earl Howe]

My Lords, the defence transformation fund means that £160 million will be available next year from within the MoD’s existing budget, and we are looking to make a further £340 million available as part of the spending review. That will be part of our bid. The transformation fund has been established, in general terms, so that we can respond rapidly to new opportunities to invest in technologies that are game changing, and projects that move us forward at pace in areas that represent priorities. It will complement the innovation fund, as I have explained, although that fund will in itself more than double next year. It is too soon for me to itemise the projects and technologies that this money will be spent on. This is work in progress, but we are clear that the fund will perform a very useful function in enabling all the commands to focus their minds on priorities and potentially game-changing areas of activity. As further information becomes available, no doubt noble Lords can ask me about that and I shall be happy to provide further details in due course.

Defence: Helicopters

Lord Browne of Ladyton Excerpts

Thursday 14th June 2018 Lords Chamber

[Earl Howe]

The noble Baroness raises some very important points and I understand the emphasis that she attaches to this aspect of UK industry. Our approach to rotary capability will be considered as part of the modernising defence programme, as she mentioned. It is worth remembering that we already have a long-term close relationship with Leonardo helicopters, which represents the design and manufacturing capability in the south-west, through our strategic partnership arrangement—a 10-year arrangement from 2016. That arrangement is unique and it enables us to maintain a continuing dialogue with the company to ensure that we are speaking the same language on capabilities, needs and requirements.

[Lord Browne of Ladyton (Lab)]

My Lords, another NATO summit is imminent. This brings to mind the frustrations of 15 years of shortfalls in NATO’s helicopter capability, which was much-needed in Afghanistan. Despite the fact that most of our European allies had helicopters available—at one stage I counted over 1,000—we could not get 17 into Afghanistan. Our stand-alone capability reminds me of the relevance of this Question. We have an opportunity with the MDP for the noble Earl and the MoD to sit down with Leonardo, Boeing, Airbus and other providers of our helicopter capability. Will the noble Earl refresh his memory of the 2005 defence industrial strategy, which is still the last strategy any UK Government have had and is still relevant? He may want to look at page 90 in particular.

[Earl Howe]

My Lords, I shall do exactly that. I am grateful to the noble Lord for his suggestion. We are on track to share headline conclusions from the modernising defence programme by the NATO summit in July. At that stage we expect to describe what the changed strategic context means for defence policy and planning, including the area in which the noble Lord is interested; how our overall approach needs to evolve, as surely it must; and how we intend to pursue improved capability in the new domains of warfare.

Mull of Kintyre Review

Lord Browne of Ladyton Excerpts

Wednesday 13th July 2011 Lords Chamber

[Lord Astor of Hever]

My Lords, I deeply regret that the time that has elapsed has added to the families' distress. The Secretary of State has apologised for the sorrow caused to the families by the original finding of negligence to a gross degree. I share my noble friend's aspirations that this will be the end of the matter.

[Lord Browne of Ladyton]

My Lords, I welcome the Minister’s Statement. I also welcome the report of the review body and wish to be associated with the words of gratitude to Lord Philip and his review team. I particularly commend the clarity of this report to noble Lords; it is in the clarity that the decision is supported, as we have already heard in this House this afternoon. At the heart of this report is the decision that the legal advice that informed the original decision—repeatedly tested, I have to say, including independently—was wrong.

For my part, when I was Secretary of State for Defence, my noble friend Lord O’Neill and others of his group made representations to me and presented me with quite a substantial body of information arguing for just this outcome. I challenged the legal advice, in the sense that I sought independent legal advice. Indeed, I went further because I challenged another point of law—it has not become part of this report—which I think should also have instructed the conclusion that we have today. I regret that I was no longer in post when that process came to a conclusion.

I do not know this, but I am certain that the original legal advice was reinforced by the advice that came to my successor, my noble friend Lord Hutton, when he was Secretary of State for Defence. I have no way of knowing that that was the case, but I suspect it was. While I understand that this appears to be an argument between lawyers, there is a pretty straightforward argument at the heart of this, which Lord Philip and his review team exposed in a simple and uncomplicated fashion. For those reasons I welcome this decision.

I am pleased for the families of Flight Lieutenants Tapper and Cook that this conclusion has been come to today. However, other families were involved in this dreadful tragedy, the anguish of which has been protracted over a long period. I know from my own information that many of those families and individuals in them were disturbed because of the controversy that continued in relation to this. Every time the issue was raised, there was trauma for individuals and families of the other 27 deceased. I seek reassurance from the Minister that the department with responsibility for this will ensure that those families are supported through this process, because some of them are now left in a situation where they do not know what was responsible for the death of their loved ones.

[Lord Astor of Hever]

My Lords, I thank the noble Lord for the points that he makes and his question. I also thank him for his support. I agree with what he says about the clarity of the report. I was aware of the noble Lord’s concerns when he was Secretary of State and, like him, my thoughts are with the families of all the 29. They will be supported by my department and, to start with, they will get copies of the report and the discussions in this House and the other place, and that will be followed through.