Overseas Operations (Service Personnel and Veterans) Bill

Lord Craig of Radley Excerpts

Committee stage & Lords Hansard
Tuesday 9th March 2021 Lords Chamber

[Lord Craig of Radley (CB) [V]]

My Lords, like the noble Lord, Lord West, I speak to Amendment 14. I strongly support this amendment. Torture, genocide and other crimes identified in the laws of conflict should never be subject to doubt that they are not fundamental to the way in which our Armed Forces are expected to operate, no matter how stressful or dangerous the situation they are exposed to on operations overseas. A dangerous ICC charge of not upholding such international law could arise.

Government reasoning for not including torture and war crimes, as is done for sexual crimes, seems to be that there might be some discernible range of tortures or crimes in the Geneva conventions which could be taken into account by the prosecuting authority—bearing in mind the stresses of active overseas operations—before reaching a decision to prosecute. If that is the case, surely it could be applied to consideration of a discernible range of sexual crimes, which the Bill seeks to eliminate from any consideration. Whether it is sexual crimes or torture, degrees of criminality surely can arise. If so, that should not be some explanation, reason or excuse for not prosecuting; neither should be singled out for different treatment. Torture and war crimes should be grouped with those of sex and treated as crimes always to be prosecuted.

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

My Lords, I support Amendment 14 and have considerable sympathy for the other amendments in this group, so I will speak generally about these issues. Like all the previous speakers on this group, I believe that this Bill, as presently drafted, undermines our obligations under the Geneva conventions and the UN Convention against Torture, which explicitly require that serious international crimes, such as torture, genocide and crimes against humanity, are investigated and prosecuted. I am deeply concerned about this Bill because it promotes the growing, dangerous idea that the UK can simply set aside international obligations in law. Its entry into force will be yet more evidence of what Theresa May called the abandonment of the UK’s moral leadership on the world stage, and will add to the risk of more prolonged investigations of our Armed Forces, not fewer.

The Government have excluded a number of sexual offences listed in Schedule 1 from the scope of the Bill. During the Bill’s passage through the other place, the Government were asked on several occasions to explain why crimes such as torture and genocide remain within scope of the Bill, while offences of a sexual nature are excluded. In response, the Secretary of State and the Minister for Defence People and Veterans argued that violent and lethal acts are sometimes justified during combat, and these activities can expose service personnel to allegations of torture or other war crimes, whereas sexual violence can never be justified. The Minister repeated that explanation and expanded upon it at Second Reading.

I struggle to understand this explanation or to grasp why this distinction has been made. The best I can do is to summarise it in this way: the argument seems to be that the very nature of war or conflict justifies special rules to protect those engaged in conflict from allegations that they have breached the laws designed, sometimes solely but at least in part, to prevent just war and conflict from being used as an excuse for the perpetration of the most egregious crimes. This argument simply cannot be allowed to prevail.

The use of torture, like sexual offences, can never be justified. The legal definition of torture describes it in terms of the “intentional” or “deliberate” infliction of severe pain or suffering. In short, these acts are clearly distinct from legitimate use of force during combat. It is surely our duty to ensure that no British service personnel will be engaged in a situation which would put them at risk of credibly being accused of conduct meeting any of the relevant definitions of torture, genocide, crimes against humanity or war crimes.

In the event of a rare, credible allegation of such behaviour being levelled at British service personnel, they should be effectively investigated and, where there is sufficient reliable and credible evidence, prosecuted. That is my understanding of our obligations and what we should be seeking to support with no conditionality.

Ministers who deny that the triple lock will weaken our stance on such crimes dismiss these arguments with the rhetorical equivalent of a wave of the hand, even though a large and diverse coalition of military, legal and other experts have sustained their view that it will do exactly that. As your Lordships’ House has heard from every previous speaker, they can explain comprehensively why that is the case.

I have one final point and I make no apology that it is a point which has already been made by every one of the preceding speakers. What is effectively a de facto statute of limitations on the prosecution of 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. The noble and learned Lord, Lord Hope of Craighead, explained very clearly at Second Reading and repeated today that this not only makes investigation and possible prosecution by the ICC more likely, but also subjects them to the possibility of such investigations and prosecutions by any number of other jurisdictions.

There are three very specific public warnings of the risks of investigation and possible prosecution by the ICC. In addition to the letter to Ben Wallace, which has been referred to on a number of occasions, 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 Statute.”

The Office of the Prosecutor also stated in the final report Situation in Iraq/UK published in December 2020, that it will continue to monitor the development of the Overseas Operations Bill and its impact, and may revisit its decision not to take action against the UK for war crimes committed in Iraq in the light of new facts or evidence. The increased risk of investigation or prosecution by the ICC also applies in respect of other past and future overseas operations.

We should all, Government and Parliament, remember that we have a solemn commitment to our Armed Forces given on ratification of the Rome statute of the International Criminal Court, that no member would ever be at risk of appearing in The Hague. If this Bill in its present form becomes an Act of Parliament, it will be a deliberate breach of this commitment and the ultimate irony is that it will expose our armed forces in the future to long and possibly repeated investigations.

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[Lord West of Spithead (Lab)]

My Lords, I shall speak to Amendment 29 in support of my noble friend Lord Tunnicliffe and the noble and gallant Lords, Lord Boyce and Lord Stirrup. The de facto six-year time limit for claims being brought against Ministers and the MoD arising from active service abroad seems at first sight far from protecting our people, but rather reducing the rights of individual service personnel. Those injured as a result of negligence during overseas operations, unlike in the UK, will have less protection under the law. Veterans and service charities, as was mentioned by the noble Baroness, Lady Smith of Newnham, are very worried and have been taking quite a lot of notice of this. The British Legion and other charities are very concerned.

To keep this short, it seems that the Bill seeks to protect the MoD from claims by our servicemen, rather than trying to look after them. Again, I am absolutely sure that that is not the intention, and this amendment tries to rectify that problem.

[Lord Craig of Radley (CB) [V]]

My Lords, I shall speak to Amendment 29 and I support this important safeguard for service personnel. As has been mentioned, not all disabilities are immediately self-evident. Medical advances and associating clinical problems with mental or slowly developing illnesses are helping to explain and track the trigger to events not just in the recent past, but over periods measured in years, not months. Should a claim be considered, it should not be dismissed on some arbitrary timeline. Justice for service personnel, both serving and veterans, demands that their interests should be protected.

The changes made in the past decade, replacing the tried and tested Pensions Appeal Tribunal, which had its origins in 1919, with new arrangements, have been the cause of much anxiety at times. Indeed, I put down an annulment Motion to a major tribunal revamp in 2008 that sought to disband the Pensions Appeal Tribunal of England and Wales and move all its military pension and disability work into a civilian social entitlement chamber. This was widely condemned by those with experience of this type of work, by the Royal British Legion and other charities which help with the preparation and submission of such claims. My Motion was debated and, happily, the Government then agreed that the Pensions Appeal Tribunal work should be given its own separate chamber in the restructured tribunals.

So it is not only that claims by service personnel and veterans should not be arbitrarily time-limited: as important is that the tribunal arrangement in place to deal with claims is respected and trusted, as was the former Pensions Appeal Tribunal, with its long experience and proven track record in this field. I hope the Government will acknowledge the importance of that, as well as Amendment 29.

[Lord Faulks (Non-Afl) [V]]

My Lords, the scheme of this part of the legislation creates a long stop of six years, subject to date of knowledge provisions which provide for an additional one year. It also specifies certain additional factors to be taken into account under the provisions of Section 33 of the Limitation Act 1980.